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HomeMy WebLinkAbout1986-0226.Farquhar.89-10-18EMPLOY& DE LA COURONNE OE L’ONIARIO CPMMISSION DE REGLEMENT DES GRIEFS Between: 226/86 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (D. Farquhar) Grievor Before: For the Grievor: - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer For the EmrJlover: J. Forbes-Roberts Vice-Chairperson J. Best Member G. Milley Member P. Chapman Counsel Ryder, Whitaker, Wright and Chapman Barristers and Solicitors J. Quinn Co-ordinator, Staff Relations Ministry of Natural Resources Hearinq: May 26, 1987 i. i DECISION By a grievance dated April 11, 1386 the grievor alleges that he was improperly denied Termination Payments pursuant to Article 52 of the collective agreement between the parties. Only the grievor gave evidence. The uncontradicted Eacts before this Board are as follows: The grievor, Mr. Douglas Farquhar, is an American citizen who moved to Canada in 1968. In June of 1980 he secured employment as a Biologist I.on a contract basis with the Ontario Government. lie continued in this position until February of 1981 when he was appointed to the position of Fish Culture Systems Specialist. At the time of appointment the grievor was told that hen would be on probation for one year, and that if he successfully completed his probation he would be "permanent". In.February of 1982 he was notified that he had "Passed" and was now "permanent". At no time did the grievor take an Oath of Allegiance. Approximately three and half years later, in August 1985, the grievor was told that as of March 31, 1986 his job was being declared redundant. This declaration was made pursuant to section 22(4) of the Public,Service Act R.S.O. 1980 c 418 as amended by 1983, c. 88.5.2 ("hereinafter referred to as "the PSA"). At the time of notification of redundancy, Personnel also told the grievor "you're permanent and should be probationary". He was told that because he was not a - l- -2- Canadian and had failed to swear an Oath of Allegiance pursuant to section lO(2) of the PSA he would not receive Termination Payments under the collective agreement. The grievor was not prepared to swear an Oath of Allegiance. He wished to retain his American citizenship and in the winter of 1986 acquired information from the American Consulate indicating that such an act could endanger that status. He concedes that he may well have sworn an Oath of office and secrecry pursuant to section 10(l) of the P.S.A. He also was of the impression that there were two classes of permanent employees, "citizens" and "non-citizens". The grievor does not believe he was told that "non-citizen" permanent employees stayed probationary forever. Union counsel'presented three arguments. Pirst, both the collective agreement and the P.S.A. must be looked at to determine whether an employee has acquired permanent status, and the attendant right to termination payments. Second, the purpose of a probationary period is ,to afford the employer a negotiated period of time in which to evaluate a new employee. Successful completion of this period entitles the employee to increased job security and benefits. Counsel argued that as a policy matter it is inconsistent with the purpose qf the probationary period to leave an employee hanging forever. (The meaning of this argument will become clear when we examine the relevant statutory and contractual definitions of a -3- probation). Third, the manner in which the Crown applies section 10 of the P.S.A. is in violation of sections 3 and 4(l) of the Ontario Human Rights Code. Counsel for the employer forwarded two arguments, both centre on the previously decided case of Beach 444/82, which counsel suggested to be on all fours with the case before us. Counsel argued the importance of consistency in arbitration awards when two Boards deal with the same or very similar issues. While admitting the absence of an operative doctrine,.of stare decisis in arbitral law, employer counsel argued (and union counsel conceded) that to fly in the face of a previous award this Board must find. that award to have been "clearly wrong". Second, it was argued that on the strength of the Beach award (supra), and by virtue of the doctrine of resjudicata, this matter is not arbitrable. The provisions of the Collective Agreement to which counsel referred provide as follows: ARTICLE 25 - SENIORITY (LBNGTB OF CONTINUOUS SERVKE) 25.1 An employee's length of continuous service will accumulate upon completion of a probationary period of not more than one (1) year and shall commence from: (a) the date of appointments to the Classified Service for those employees with no prior service in the Ontario Public Service: or (b) the date on which an employee commences a period of unbroken, full-time service (b) cont'd in the public service, immediately prior to appointment to the Classified Service. "Unbroken service" is that which is not interrupted by separation from the public service; and "full-time" is continuous employment as set out in the hoursof work schedules for the appropriate classifications. ARTILE 52 - TERMINATION PAYMENTS This Article is effective April 1, 1978 52.4 An employee, (al who has comoleted a minimum of one (11 'who Of, (i (ii year of-continuous service and ceases to be an employee because death, retirement pursuant to, 1. section 17 of The Public Services Act, or 2. section 12 or 18 of The Public Service Superannuation Act, or (iii) release from employment under subsection 4 of section 22 of The Public Service Act; or (b) who has completed a minimum of five (5) years of continuous service and who ceases to be an employee for any reason other than, (i) dismissal for cause under section 22 of the Act, or (ii) abandonment of position under section 20 ~of the Act, is entitled to severance pay for continuous service from and after the first day of April, 1978 equal to one (1) week of salary for each year of service from and after the first day of April, 1978. 52.5 An employee on probationary staff, other than an employee appointed prior t0 January 1, 1979 is not entitled to - . , - 5. - ~ Counsel a ,1 P.S.A.: severance pay under sections 52.2, 52.3 or 52.4. so referred us to the following sections of the 6.-(l) When a vacancy exists in the classified service, the IDeputy Plinister .Y of the ministry in which the vacancy exists shall nominate in writing from the list of eligibles of the Commission a person to fill the vacancy. (2) The Commission shall appoint the person nominated under subsection (1) to a position on the probationary staff of the classified service for not more than one year at a time. R.S.O:1980, c. 418, s. 6. 7. The Commission shall, if requested in writing by the Deputy ~~inist~r , recommend to the Lieutenant Governor in Council the appointment of a person on the probationary staff of the classified service of the regular staff of the classified service, and the rec~ommendation shall be accompanied by the certificate of qualification and assignment of the Commission. R.S.O. 1980, c. 418, S. 7. 9. A person who is appointed to a position in the public service for a specified period ceases to be a public servant at the expiration of that period. R.S.O. 1980, c. 418, 2.9. 10.-(l) Every civil servant shall before any salary is paid to him take and subscribe before the Clerk of the Executive Council, his Dep,jt I; ~Mi~nister, or a person designated in writing i; y either of them, an oath of office and secrecy in the following form: I . . . . . . . . . . . . . . . . . . ..do swear that I will fiithfully discharge my duties as a civil servant and will observe and comply with the laws of Canada and Ontario, and, except as I may be legally required, I will not disclose or give to any person any information or document that comes to my knowledge or possession by reason of my being a civil servant. So help me God. I -6- (21 Every civil servant shall before performing any duty as a member of the regular staff take and subscribe before the Clerk of the Executive Council, his ncqNt;i riinistc~r ', or a person designated in writing by either of them, an oath of allegiance in the following form: I,........................, do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second (Or the reigning sovereign for the time being), her heirs and successors according to law. So help me God. Clearly under Article 52.5 of the collective agreement, if the grievor was "probationary staff" he is disentitled to termination benefits. This raises two main questions. 1. Is "probationary staff" to be defined by the collective agreement of-the P.S..&.? 2. Assuming it is to be defined by the P.S.A., what is the statutory formula by which one becomes, and more importantly remains on probationary staff? 25. However, Article 25 of the collective agreement merely provides a definition of length o E continuous service. It does not provide a definition of "probationary", let alone the term "probationary staff". The latter is highly unusual terminology and we find it much more than coincidental t!lat the same terminology appears in sections 6(2) and 7 of P.S.A. We agree with the Board in the Beach decision (supra) wherein it stated: . ..in the public sector, the Collcctivc Agreement, . the Crown Employees Collective Bargaining Act and the Public Service Act must all be read in conjunction with each other in determining the overall employment relationship (page 11). Article 52.5 of the agreement disentitles a probationary staff member to severance pay as provided under Articles 52.2, 52.3 and 52.4. (There is an exception which is irrelevant for our purposes). Each of those three sub-articles specifically mention various sections of the P.S.A. Therefore, we find that the P.S.A., and its definitions, are incorporated by reference into Article 52.5. This finding, however, does not solve the problem before us. The issue remains, was the grievor probationary staff? Section 6(Z) of the P.S.A. states that a person may be nominated to the probationary staff "...for not more than one ' year at a time". (emphasis added). There is no evidence before this Board that the grievor was re-appointed.February of 1982, or any year thereafter, up to the time of his termination. It is in this respect that the instant case is distinguishable from Beach (supra). In Beach the Agreed Statement of Pacts clearly provided: 9. The grievor did not at that time and has not since taken the Oath of Allegiance. 10. The grievor's employment status has come up for review annuaj.ly since the time of his initial appointment. The grievor has never been recommended for an appointment to regular staff because he has not e. i,,I -8- taken the Oath of Allegiance. Accordingly, the Employer re-appointed the grievor to the probationary staff of the classified service on June 26, 1979 and has re-appointed the grievor to the probationary staff of the classified service effective on the anniversary date of his initial appointment in each of the subsequent years. 11. The grievor has not been appointed to the regular staff of the classified service. (P. 3, emphasis is added). The instant Board has no knowledge of any such review or re-appointment. In light of the fact that appointment to probationary staff may not be for longer than one year, and absent any evidence of re-appointment, we find that the grievor .i lost his status as a probationary staff member on the anniversary of his initial appointment. Consequently, as of March 1986 he did not come within the parameters of Article 52.5,. We are aware that section 7 of the P.S.A. sets out a specific procedure by which an employee becomes regular staff. There is no evidence that this was followed. In addition, section 10(Z) states that no regular staff duties may be performed until the Oath of allegiance has been taken. We know the grievor did not do that. He may well have been unknowingly performing his duties in contravention of the P.S.A. The one thing of which we are certain is that he was an employee, and as such fell within Article 52.4 of the collective agreement. The grievance therefore,succeeds. In coming to this conclusion we considered the following authorities: the P.S.A., Beach (supra), Bateman 2.77, Re: OPSEU GRIJZVRNCE 270/82. In view of its finding, the Board sees no reason to consider the Union's alternate arguments. The Board will remain seized in the event of a dispute as to compensation for the grievor. Dated~at.Toronto, 0ntario:this 18th day of October, 19e9. _-.- J. Forbes-Roberts, Vice-Chairperson "1 dissent" (Dissent attached) - G . .I . Etilley, Member - 10 - DISSENT At first blush, I was attracted to my colleague's conclusion. However, on closer analysis I find I am unable to support that position and, with respect, I must dissent. The rationale for sustaining the grievance is that, in the context of this case, there are two types of employees, "probat- ionary" staff and "regular" staff. Since appointment to prob- ationary staff may not be for longer than one year and since there is no evidence of reappointment of the grievor to a fur- ther probationary period following one year's service, he must, ipso facto, become entitled to severance payments pursuant to Article 52.4 of the Collective Agreement. The award distinguishes this case from the Beach case on the basis that Beach was reappointed.t.0 the probationary staff on each anniversary date following his initial appointment while Farquar was not. But to what extent is Farquar really distinguishable from Beach ? Beach, at the outset following acceptance of appointment to probationary staff, was asked to but refused to suscribe to an Oath of Allegiance. Nor, did he do no subsequently. Thus, he was denied appointment to the regular staff. Farquar, on the evidence, was not asked to take the Oath of Allegiance until March, 1986, when his job became redundant. As in the case of Beach, he too refused. Thus,the significant identity in both cases is that they were denied the status of Regular Staff because of their refusal to swear the Oath of Allegiance. The fact that their refusals occurred at different stages of their career would not appear to be of much moment. Had Farquar been asked to swear the Oath at the - 11 - end of his probationary period, it is only reasonable to assume he would have refused at that time just as he did later. He would then have been on all fours with Beach., In substance, therefore, I do not believe it can be truly said that Farquar is disting- uishable from Beach. On Page 14, Beach (supra), it says: "?Zhere is no question that at the present time the grievor does not, in fact, possess the status of regular staff and we think that it is clear under the Collective Agreement that in the absence of that status, the grievor has no potential entitlement to the benefits for which he,requests a declaration of entitlement. In our view, for that reason also, the grievance must be dismissed". Can it be said that failure to re-appoint Farquar to probationary ,s?zaff after one year automatically classifies h.im, pursuant to Section I of the P.S.A., as regular staff? I think the answer has to be "No". To become reguiar staff requires overt action under Section 7 by both the Commission and the deputy minister. In Farquar's case this action was taken by neither. As stated in Beach, on page 12: I' A person moves to the regular staff in accordance with the provisions of section 7 on request from the Deputy Minister. A pre-condition of performing any duty as a member of the regular staff is then set out in Section lO(2). It is agreed in the statement of fact that the grievor i$) not on the regular staff and therefore, in the Act, he is on the probationary staff; and, in the context of this Collective Agreement, the probation- ary staff referred to in Article 52.5 is one and the same as the probationary staff referred to in Section 6(2) of the Act". - - 12 - In Farquar's case, there was no request from the Deputy Minister and no Oath of Allegiance, therefore, he could not be said to be part of the regular staff. Thus, this member is drawn to the conclusion that the instant case is not, in any meaningful way, distinguishable from Beach. As stated in the Blake case: "The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this Board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and the arbitrat~or shopping which in turn creates undue administrative difficulties in handling the case load." For the above reasons, I would have followed Beach and dismissed the grievance. Respectfully submitted, ./?