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HomeMy WebLinkAbout1986-0223.Shipley.87-11-10i . ONWW CRCaW EAUOVEES GRIEVANCE SETTLEMENT BOARD IN THE MATTEA'OF AN ARBITRATlON Between: Before: For the Grievor: Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE.GRIEVANCE SETTLEMENT BOARD For the Employer: Hearing: OPSEU (PI Shipley) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) J. ti. Samuels Vice Chairman S. Hennessy Member A. Stapleton Member E. Shilton-Lent& Counsel Cavalluzzo, Hayes & L+-lnon Barristers and Solicitors C. C. White Counse 1 Hicks Morley Hamilton Stewart 8 Storie Barristers B Solicitors September 14, 1987 Employer , . .~ ~.‘; ‘... 2 A walk down a well-travelled road---but this time with an interesting wrinkle. This is another case of an unclassified employee on a fned term contract who grieves the non-renewal of his contract. Peter Shipley was employed by the Ministry as a Recreation Officer at the Vanier Centre for Women in Brampton, pursuant to a fned term contract. Shortly before the contract was to terminate, he told the employer that he was about to marry a co-worker who worked in the same area under the s&e supervisor. The ‘grievor and his intended were told by the employer that there was a policy concerning such a situation in the Ontario Manual of Administration. Section 5-26-14 reads: , z OfRelatives i No prohibition exists against employing qualified persons whether or not they have relatives ,in the service, except that spouses shall not occupy positions: -in the same immediate work area; or --under the same supervisor; or . -where one spouse supervises the other. - The grievor was then told that his contract would not be renewed solely because of the need to comply with this policy. He grieves that.he is being discriminated against contrary to the Ontario HZJDJLZII Rights Code, and counsel for the Union intends to argue that the policy violates the Code and is therefore illegal. At the hearing, the parties agreed that first, we would deal with the issue of whether or not we have jurisdi,ction over the non-renewal. Th$rt$ore, in this award we will answer the following question: Assuming that it can be shown that the policy on hiig relatives is illegal, does the _:.. Board have jurisdiction to provide a remedy for the non-renewal of the grievor’s fixed term contract? In our view, it is clear that we have no jurisdiction to deaLwithhis grievance. 3 The grievor was employed for a limited term only; pursuant to section 8 of the Public Service Acr, F60 1980, ch. 418. And, pursuant to section 9 of that Act, he ceases to be a public servant at the expiration of the term of his contract These provisions read: S.-(l) A .mfnister or any public servant who is designated in writing for the purpose by him may appoint for a ._ period of not more than one year on the fust appointment and for any period on any subsequent appointment a person to a position in the unclassified service in any Ministry -so over wbfcb he presfdes: (2) Any appointment made by a designee under sub- scttion (I) shall be deemed to havp been made by his minister. ;R.S.O. 1980, c. 418, s. 8. 9. A person who is appointed to a position in the public service for a specified pod ceases to be a public servant at the expiration of’ that period. R.S.O. 1980, c. 418, s. 9. It is undeniable that Mr. Shipley had no contractual right to the. renewal of his contract. , This Board has ‘power to deal with problems arising out of the contractual relationship between the employees and the employer. But-we cannot create a contract where none exists, and we cannot fashion remedies to deal with the failure to enter into a’contract. Our jurisdiction comes from the Crown Employees CoNecrive Bargaining Act, RSO 1980, ch. 108, and the collective agreement between the parties. Section 18(2) of the Act provides for jurisdiction over three types of grievance. It,reads: In addition to any other rights of grievaua unda a cdkctive agrutnmt, m employee clabning, (a) that his pcsition has been fmproparly classified; (a) that h!. has beeo appraised contrary to the gover- ,. ning pnncipks “d standards ;. or (c) ~that he has b-em disciplined or dismissed or sw- pendcd from his employment without just cawe, -, may .procm such matter in accordance with the ~grievmce ~proctdun:protided in the collective agreement, and failing 6tid det ermination unda suchprocedure, the matter may be ..~ ~., _,: 4 ~qroased in accordaxe with the ~prc&ure for 6nal deter- mination applicable under section 19. The grievance in this case does not fail within the three types of grievance mentioned in section 18(Z). ’ It is &t a matter of classification. It is not a matter of appraisal. And nor is it a matter of discipline or dismissal. The grievor’s term of employment under his fixed term contract was not shortened. He completed the full term. The employer simply did not give the grievor a further co&act. Section 19(l) of the Act gives us jurisdiction over “the interpretation, application, administration or alleged contravention” of the collective agreement It reads: . 10.-l(l) Every coktive ig&cat shall-be deemed to provide that in the Walt ,thc ~parties .sre tiible to effect a Settlement of my~di%cmca bstmm them arising from utile interpretation, qplaion, adi&fstratjon or slkged matxavaltion of the agTeemm& ilI+%ng any question as to whetha a matter is.arbftrabl~ SW& matter may k da- red for drbitration to .the Grievance Ssttleqmt Board and the Board after gsng full op~rtunity to the parties to -prroent t?mir evidence and to make their submissions, shaU dSidethematterandi~de&his6nalaudbiudingupon the parties and ,jbe employees covered by the agreement. But this is not a case involving a violation of the collective agreement. The grievor.does have rights under the collective agreement, pquant to Article 3 and other provisions, but these rights apply to him only while he is a member of the unclassified staff. - The employer did not breach any rights which the grievor had during the grievor’s term of employment. The substance of the grievor’s cornpUnt is that he did not have employment after the term of his contracf expired. But he had no’contractual right to renewal, and there was no violation of his contractual rights during his term of employment. In like vein, Article 27;l of the collective agreement gives us jurisdiction over “complaints or differences between the parties arising from the interpretation, appiicatiok, administration or alleged contravention of 5 this Agreement”. Again, this case does not fall within the types of matter over which we have jtuisdiction. The jmisprude&e of this Board on this point is clear and correct. In Bond, 173178, the Board said (at page 3): It is Our optnion that the grievor's employment 'ceased by OparatfOn of sectlon 9 of the Public Servfce Act and by vlktue of this section and the terms of hfs appointment, ft.&riot be said that he. was "dIsmissed" within the meaning of s.17 (2) of the Cmm tinployees - Collective Bargalnkig Act. As the partles have provfded,!the only p&ion of the collective agreement that applies to employees who are not cfvil servants Is Article : 3. Thus, the parties were fully aware of thfs particular Interrelationship between the Public Service Act and the Crown Employees Collective Bargatn- Ins Act. The grfevance fs dismfssed. .- In Johnson and Szpakowski, 72176, the Board continued the analysis as ” follows (at pages 4-5): This case'is very similar to R.5 Bond and .&&try of ~.~tura; ~es~urces,~ 173/78, a'case heard just one week prior to the pres.G In that decision a&her pa;iel of the Board found: It is our opinion tit the grfewr?s employmat ceased by operation of section 9 of the Public Service Act end by virtue Of . this section end the terms of his appoint- ment, it cannot be said that her was ndismissed” within the meaning of c. 17 (2) of tJm Cram Employees Collective Bargaining Act. - : The main argument advanced by the Union,is that an 6 appointment for a specified term under s.8 of the public service Act is contrary to.the spirit of the applicable collective agreement, - and that, at least after the first appointment.(which is limited to terms of one year or 1ess)the Employer should be found to have agreed to ma&e further appointments subject only to dismissal for just cause or termination otherwise inaccordance with the collective agreement. s To expand slightly on the xo& decision, it is our view -. that, for the Union successfully to alter the impact of ss.8 and 9 of the public service Act,it would need to negotiate express provisions'~ in the.collectfve agreement requiring such appointments to be entirely __.. on the same basis as appointments to.the classified service. Even in . prfvate.sector labour,relations, agreements~'are generally considered to be negotiated in the context of an ordered statutory~ framework. Here., the AW& service Act is part of that framework. Ministers only have authority to appoint public servants to the extent that they are authorized to do so by the Legislature; all other purported appointments to the public service a're without statutory sanction. If the Union wishes to.influence the way in which a Minister (orthe Employer fn general) will administer his~or her (or its) statutory authority, the Union must .do so through * collective bargaining, if at all. -- I" 7 In Sales@, 429181, after mentioning these two previous cases, the Board went on (at page 4):~ The limits of the Board's jurisdiction are clearly expressed in Baladay, 94/78: First, we are vested with jurisdiction to hear and determine disputes about the interpretation, application, administration or alleged contravention of the collective agreemint; this jurisdiction arises under s. 18 bow s. 191 Of The Crown &mploysai Collective Bsrqaininq Act. Second, beyond that jurisdiction 'and independent of it, 1 we have the 'urisdiction set out in s. 17(2) 6 ow s. 18(2) f . . . There can be~~,no doubt that. neither head of jurisdiction is.applicabie in the circumstances of this cas,e. It fol- lows that the, decision taken bk the Employer not to re- apboint the Grievor at the expiration of her last appoint- ment on kxrch 31, ~1981 (in effect, to cause her employment to terminate) is not amenable,.to review by the Board. Tha "why" of that decision, which is the aspect of the matter that.most concerns the Grievor, is,.of course, c similarly beyond our reach.. Then, in Hmeniuk, 614/84,.the Board said.(atpges~ 11-12): The Xinisttyls Eailure to renew the grievor's contract was not a "dismissal." Further, in our view, it cannot reasonably be viwsd as a "termination.'! The word ~'tenination"'is used in both. the collective agreement and the grievor's contracts to refer to s'ituations where a contract is terminated prior to its stated expiry date. This was not the case here. . . i . :. a There is nothing in the collective agreement or- in the applicable statutes which guarantees contract employees the right to be r,ea@pointed, or which in any way restricts management when it makes a decision as to which. contract employees are not to be renewed. ‘Accordingly, the non-renewal oE the grievor’s contract, which was not+ tainted by bad Paith on the @art of the employer, did not involve a breach of either the collective ‘agreement or a relevant statute. We are not sure what the Boardmeant when it spoke of “bad faith” in this ,passage. An unclassified employee has no co$ractual right to renewal of his contract. Why’would it matter if the failure to renew tias “tainted by bad faith” (whatever that would mean in the circumstances)? This Board simply has no jurisdiction over non-contractual problems, except for the three matters mentioned in section 18(2) bf +e Crown Employees Cdective L Bargaining Act. F&y, in Henderson, 506/85, once again theBoard is unequivocal (at pages 9-10):. There-is no provision in the .Collective Agreement, . . or in the Public Service Act, or the Crown Employees Collective Bargaining Act that compels an Employer to renew's term contract of employment. On the contrary, Section 9 of the Public Service Act makes it clear that the employment of a public servant expires at the expiration of a term contract. In 'the instan't matter, the Em~ployer could have __ achieved the same regult had it taken no action whatsoever,~~ and simply allowed the contract to expire.. In the instant Grievance, there can be no employment status in the absence of a contract of employment, In the result, this Grievance is dismissed. Counsel for the Union before us argued that the, situation is different when we know that but for the employer’s adherence to the policy (which it is argued is iIlegaI because it is contrary to the Ontario Hwmn Rights Code 1981). the grievor would have been renewed. With respect, we don’t see how mat changes the situation. Even if we were to decide that the policy is illegal, we cannot get around the fundamental point that~ the grievor had no con@actuaI right to renewal There has been no vioIation of any contractual right. . It may be that there has ‘been a violation of the Hzmun Rights Code (but we emphasize that we are making no such finding), in which case the proper forumfor the grievor is the Ontario Human Rights Commission.’ It is the . . .- >.-. . 10 body which is empowered to investigate and make ~fmdings concerning breaches of the Code. For these reasons, we dismiss the grievance. &me at Lodo& &tario,this ,lOth day of November , 1987. “1 dissent” (Dissent attached) S. Hennessy, Member A. Stapleton, Member c ’ DISSENT I've read the award of the majority and must, with . . respect, exit from the well-travelled road and disagree with the majority's findings that this Board has no jurisdiction, to "provide a remedy for, the non-renewal of'the grievor's fixed term contract" in the circumstances of this case. The employer, both candidly and probably quite confidently given the Board's previous jurisprudence, freely admits that the only 'reason it did not renew the grievor's contract was because of its policy as set out in the Ontario Manual of Administration, Section j-26-14 (Hiring of Rela- tivesl. The grie.vbr contends that this policy is in violation of the Human Riahts Code 1981 or alternatively it violates section 15 of the Charter of Rights. The majority finds that this Board cannot take jurisdiction in this matter because it does not fall within the ambit of either sections 18(2) or 18(l) of the Crown Emnlosees Collective Bargaining AA, RSO 1980, ch. 108 or the collective agreement. In my opinion, based on the facts of this case, this Board does have jurisdiction to review the actions of the employer in order to determine not only the question of the legality of the employer's policy (under the Human Rights Code and the Charter) but, more importantly, whether there has been a violation of the grievor's collective agreement rights by conduct which falls within the ambit of the "bad faith" approach as set out in Humeniuk, 614/84. The employer's "Hiring of Relatives" policy.clearly points to a circumvention of the grievor's existing collec- tive agreement rights. These 'rights should,~ in my opinion, . be assessed at the time that the impugned decision was made. 1 They should also be measured against the standards contained in the Human Rights Code and the Charter, as well as the collective agreement. If I am wrong in my conclusion that this Board should not be handcuffed by the employer's reliance on what. may well be illegal conduct, then clearly the union will be required to negotiate something akin to what the Board in Johnson and Ssnakowski, 72/76 called, "express provisions in the collective agreement requiring such appointments to be entirely on the same basis as appointments to classified :a;~ service".. I would think that for the Ministry of Correctional Se.rvices to continue to hide behind such a technical position *,.,l*i .~ runs counter to the spirit, if not the clear intent of the law, as expressed in the Human Rights Code and the Charter. Surely common sense and equality of'.treatment must and should prevail. *. For these reasons I would-have overruled the preliminary objection of the employer. .::-. ~- T-Y ‘.. .:p ._ \ c ?bR-/ Hennessy, Member