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 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 Ocer 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 benets 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 reected 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 ,
(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. [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 sucient 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 ierent 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 inuence 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 eect, 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 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.
B. JURISPRUDENCE
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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