Public Service Grievance Board

AuthorTimothy Hadwen - David Strang - Leonard Marvy - Don Eady
ProfessionDirector, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP
 
Public Service Grievance Board
e Public Service Act (PSA) provides authority for the Civ il Service C ommis-
sion (CSC), subject to the approval of Cabinet, to make regu lations providing
for a grievance process a nd prescribing the juris diction, powers and duties of a
grievance boa rd, including giving t he board the powers of a commissioner under
Part II of the Public Inquiries Act (PIA). Regu lations are in place est ablishing
a grievance procedure for most members of t he Ontario Public Serv ice (OPS)
who are not represented by Ontario Public S ervice Employees Union (OPSEU),
Association of Management a nd Administ rative Professional Crown Employees
of Ontario (AMAPCEO), Professional Engineers of the Govern ment of Ontario
(PEGO) or the Ontario Provincial Police Asso ciation (OPPA). In the event that
a resolution of a grievance ca nnot be reached, the gr ievor may refer the matter
to the Public Ser vice Grievance Sett lement Board (PSGB), also established by the
regulation. e reg ulations creating t he PSGB apply only to public serva nts so,
with the except ion of employees of the Provincial Auditor and t he Chief Elec-
tions Ocer who are expressly p ermitted by the legi slation governing those of-
ces to take certain grievances to the PSGB, the PSGB has no jurisdict ion to
hear grieva nces of persons who are not public servants , even if they are employed
as Crown employees by agencies designated under the PS A.
e PSGB is part of the admin istrative 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 ind ividual employees, the PSGB provides a n important control
over the actions of deputy mini sters and their delegates and ensures general c om-
pliance with t he 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 foru m for review ing
the government’s employment policies. Its function is to prov ide rulings in p er-
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 manageria l authorit y; and protec tion of the pol itical-ac tivity
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 Direct ive
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 pr inciples, and to a common law standa rd of administr ative
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 t hat public serva nts were employed at pleasure, jud icial review of gov-
ernment employment decisions was highly restricted and consequently public
servants had very l imited legal protect ion. Now, due to recent court decisions,
it is apparent that, in the absence of t he 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 administr ative law doctrine of procedura l fairness a nd
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 , 
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. [Well s]; 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
administ ration of employment in the non-unionized pa rt of the public ser vice,
its jurisdiction must have sucient scope over t he 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 execut ive and all levels of public ser vice 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 PSGBs 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 labou r arbitrators, the PSGB routinely addre sses 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.
Like other administrative tribunals, its previous awards do not bind the PSGB,
but it seeks to make decisions that a re “clear, fair, consistent, respectfu l 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 We ll s, 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].

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