The Public Service Act Issues of OPSEU Members Can Only Be Pursued Through the Union
The Divisional Court has confirmed that OPS grievances must be processed through and by the Union.
In 1999, the applicant, David Earl Smith, received a letter from the Assistant Deputy Minister, Operations Division, of the Ministry of the Environment indicating that his employment with the Ministry was terminated because of a reorganization at the Ministry that would result in the elimination of his position. A grievance was filed
and advanced to the Grievance Settlement Board.
The Union argued that the Ministry had failed to comply with the delegation of authority provisions in the Public Service Act, and so the ADM had not been duly empowered to surplus the grievor.
After a full day of mediation, the parties arrived at a monetary settlement, which was later incorporated into an Order of the GSB.
Mr. Smith personally applied for judicial review of that Order.
His application stated that the ADM did not have properly delegated authority to dismiss him, and so the purported dismissal was a nullity. Therefore there was nothing to grieve and the GSB erroneously assumed jurisdiction to arbitrate and settle the complaints.
The Divisional Court noted that the issue of proper delegation of authority to surplus authority was grieved, raised by OPSEU at the mediation, would have been addressed had the hearing proceeded and indeed, in a broader sense formed part of the overall settlement between the Employer and the Union.
The Divisional Court held:
We are all of the view that the application must be dismissed on the grounds that Mr. Smith does not have standing to bring it. As a member of the bargaining unit represented by OPSEU he does not have standing in his own right to process a grievance respecting his employment. Only the Union may do so.
The dispute arose out of Mr. Smith’s position as an employee and as a result of the purported termination of his employment. The “managements rights” clause in the collective agreement gives management the power to hire, to layoff or to dismiss. This is what it said it was doing. Whether it was entitled to do so, or whether if it were,
it did so properly, are matters that fall under the collective agreement for grievance purposes and can only be pursued by the Union bargaining agent.
Thus, the issues were properly before the GSB. Had there been a hearing that Board would have been entitled to determine whether the Assistant Deputy Minister had properly delegated authority in purporting to dismiss Mr. Smith and, if not, what consequences should follow from that…
As a member of the bargaining unit whose complaint regarding his purported termination was properly pursued by the grievance process set out in the collective agreement and before the Board, Mr. Smith is bound by that settlement and order. Only the parties to the collective agreement may pursue that employment-related grievance.
Accordingly, Mr. Smith has no standing to pursue this application for judicial review. It is therefore dismissed.
An application for leave to appeal to the Court of Appeal was denied by the Court of Appeal.
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