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HomeMy WebLinkAbout1986-1429.Beresford and Milley.89-11-29EMPlor& OS LA CO”RON”E oE“O”T”Ft,O IN THE MATTER OF AN ARBITRATION Under Between: Before: Por the Grievor: For the Employer: Hearinq: THE CROWN EXPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Bere+ford/Milley) Grievor - and -' The Crown in Right of Ontario (Ministry of Revenue) Employer J.W. Samuels Vice-Chairperson J. Solberg flembe r A. Stapleton Member A. Ryder Counsel Ryder, Whitakec, Wright and Chapman .Barristers 6 Solicitors C. Riggs. Cbunsel Ricks Morley Hamilton Stewart Storie Barristers & Solicitors, September 28, 1989 2 This panel of the Board has been convened to .deal with the “question of remedy” which remains after two earlier awards by panels chaired by Mr.- M. Mitchnick. In each case, the grievor had been considered to be a member’ of the unclassified service on a limited-term contract and the contract was not renewed. The grievors claimed that they had been “dismissed” without just cause, pursuant to section 18(2)(c) of the Crown Employees Collective Bargaining Act. The Grievance Settlement Board has said in many cases that an unclassified employee has no right to grieve “dismissal”. In Beresford and Milley, the Board in each case simply declared that “the purported limited-term appointment of the grievor to the ‘unclassified’ service was . . . . . ..improper and unauthorized ~by the provisions 1. of the Public Service Act, and the regulations thereunder” (Beresford, 1429186, at page 17; and Milley, 1972187, at page 13, in which the Board adopted the same position which was taken in Beredord). In each case the “question of remedy” was left to the parties to work.out. In Beresford, the panel retained jurisdiction; and in MiNey, the panel did not remain seized. Mr. Mitchnick is now the Chairman of the Ontario ‘Labour Relations Board, and is not available to continue sitting as a, Vice-Chairman of the Grievance Settlement Board. The parties have agreed that this panel is properly constituted to, hear both cases on the matter of remedy. It would be useful to reiterate very briefly the course of reasoning in the earlier awards. Section 8(l) of the Public Service Act gives.a Minister the authority to appoint someone for a. limited term, and section 6 of Regulation 881 lists the categories of employees in the unclassified service. The grievors did not fit within any of the categories enumerated and described in section 6 of the Regulation. Therefore, the Board said that their appointments to the unclassified service were improper and unauthorized. The two decisions were appealed and the applications for judicial review were dismissed by the Ontario Divisional Court in an oral, b ‘3 unreported decision by Mr. Justice Osler. dated December 6, 1988. The Court said that The Board found, in each case, that the appointment was improperly made and virtually stopped at that point, the Boards. reserving to themselves the ‘right to continue and to decide upon an appropriate remedy if subsequently asked to do so. And the Court went on to say that “we see no error in the finding of the Boards or in the methods by which they proceeded and, accordingly, both applications will be dismissed”. The Court of Appeal refused to grant leave to appeal. 1 So the parties returned to this Board to deal with the question of remedy. It is critical at the outset to make it clear that we must take as our point of departure the earlier awards. Our decision concerning remedy is based on the status of the grievors as declared in the earlier awards. The earlier awards said simply that the gtievors were improperly appointed to the unclassified service. Therefore. they were not unclassified employees. Mr. Mitchnick very carefully worded his conclusions, and his ‘. pomt was picked up by the Divisional Court. As the Court said, the Board “virtually stopped at that point”. Counsel for the Union now’ argues that the grievors must be classified employees. because there are only two types of public servants contemplated in the Public Service Acr-classified and unclassified. In our view, this cannot be correct. As counsel for the Ministry argued, just as the grievers were not properly appointed to the unclassified service, it is clear that they were not properly appointed to the classified service. 4 Section 6 of the Public Service Act provides: e.-(l) when a vacancy exists in tlle clasi6ed service, .$& the deputy minister of the ministry in which the vacancy sed exists shall nominate in writing from the list of eligibles of the Commission a person to 6l.l the vacancy. (2) The Commission shall appoint the penon nominated ntwdti under subsection (1) to a position on the probationvy s&F- staff of the ckssikd service for not more than orie year - at a time. R.S.O. 1980, c. 418, 1. 6. And Articles 4.1 to 4.3 of the collective agreement provide for posting of vacancies and a competition among apphcants: 4.1 Y 4.2 4.3 WhenavacancyoccunintheClassifiedServicefcr a batgaining unit pwition or a new classified PO& don is created in the bargaining unit. it shall be sdvenised torat least ten IlO) working days wiwto the established closing date when advertisedwithin aminishy,oritshallbeadverti~loratleaslf~ (15) working days prior to the eStablished Clmiw date when advertised service-wide. All a~~lkatiOm will be acknowledgad. Where prMkable. MtiCe Of vacatxies shall be costed on bulletin boards. The notice of vacancy shall state. when ap&xble. the nature and title of oosition. sBlaF/. Qualifcattons rewired, the houn-ot-work schedule as set out in Article 7 (Houn oi Worlc). and the area in which me position exists. In filling a vacancy, the Employer shall give aimaly consideration to aualifications and abilily to par- tom the required duties. Where oualification9 and abilityarerelativetyaqual. lengthofcontinuousser- vice shatt be a consideration. These are the requirements for a proper appointment to the classified service and these requirements were not met in the grievors’ cases. So, just as they were not properly appointed to the unclassified service, they were not properly appointed to the classified~service. Appointment to either service must be done according to the requirements established by the legislation and the collective agreement. Where does this leave us? We are dealing with the grievances of two people who were employees of the Ministry, bus who were not properly appointed to either of the types of service contemplated in the legislation. Pursuant to section 19 of the Crown Employees Collective Bargaining Act, we must determine the “interpretation, application, administration” of the collective agreement with respect to these employees. And, as the Ontario Divisional Court has said in Ontario Public Service Employees Union and Carol Berry et al v. The Crown in Right of Ontario (Ministry of Communiry and Social Services) (1986). 15 Ontario Appeal Cases 15, we must “decide the matter”, and provide a remedy if there is need for one- speaking of this Board, the Court said “Its jurisdiction is unrestricted.. Its mandate is remedial” (at page 20). Thus,’ the next issue for us is whether the grievors suffered any loss, whether their “rights” were violated, whether there was any breach of the employer’s obligations towards them. There is no doubt that the grievors signed limited-term contracts. Beresford came to the Ministry as a telephone consul operator on a six- month contract in May 1985, which was renewed for 11 months, and then her contract was not renewed. Milley was employed from November 10, 1986 to September 30, 1987, pursuant to four successive limited-term contracts, and then was given no further employment. Therefore, on first glance, it would appear that there was no violation of their rights.. Both grievors were employed for the full periods they were promised in their contracts. They were not promised any further employment. They were never engaged on a basis which gave them job security. Thus, why should they be entitled to any remedy? In our view, the answer lies in the structure of the collective agreement. The collective agreement covers both classified and unclassified employees. It did not contemplate employees who were improperly appointed, and therefore does not provide for them expressly. In the agreement, classified employees are provided with a wide range of rights; whereas unclassified employees have only the limited rights provided in Article 3. This bargain musty have been reached on the understanding that certain kinds of positions would be filled with classified employees and other kinds of -positions would be filled with unclassified employees. In other words, the parties provided only limited rights for unclassified employees provided that onlv nds of emplovees would be qpomted to the unclassified service. This understanding would have been based on section 6 ~of Regulation 881 to the Public Service her, which was repeated in the earlier award in Beresford, with the emphasis shown here: B.(l).Thc unclassified &rvicc consists of employees who are employed under individual contracts in which the terms of employment are set out and is divided &to, (ai Group 1, consisting of employees who are employed, (i) on a project of a non-recurring kind, (ii) in a professional or other special capacity, (iii 1 on a temporary work assignment arranged by the commission in accordance with its program for providing temporary help, (iv) for fewer than fourteen hours per week or fewer than nine full days in four consecutive weeks or on an irregular or on-call basis, (VI during their regular school, college or university vacation period or under a co-operative educational training program; 4. 7 (bl Group 2, consisting of employees who are employed on a project of a recurring kind, .( i 1 (if) for fewer than twelve consecutive months and for fewer than, (A) 36-l/4 hours per week where the position, if filled by a civil servant, would be classified :as a position requiting 36-l/4 hours of work per ysek, (8). 40 hours per wick whkre the position, if filled by a civil servant, would be classified as a position requiring 40 hours of work per week, for fewer than eight consecutive weeks per year where the contract of the employee provides that the employee is to work ‘either 36-l/4 hours per week or 40 hours per week; (cl Group 3 consisting of employees appointed on a seasonal basis for a period of at least eight consecutive weeks bu.t less than twelve consecutive months to an annually recurring position where the contract provides that the 8 .employee is to work either 36-l/4 hours per week or 40 hours per week. Thus, the parties would have negotiated the relative rights of unclassified and classified staff in light of the fact that the unclassified staff would consist of employees who were working’on limited-term jobs (Group l), or for less than re&lar hours (Group .2), or on a seasonal basis (Group 3). Employees in the unclassified service would have fewer rights because they had “lesser” positions. During their period of employment, the grievors were working the same hours, doing the same work, as’members of the classified staff. The positions they were filling were not the type which were contemplated as unclassified when the parties to the collective agreement struck their bargain,. giving very limited rights to unclassified staff. Thus, there is some force in the Union’s argument that the grievors should have been appointed to the classified service, and that, if the grievors are simply left where they are, we will be determining their rights as if they were members of &unclassified service. In our view, there must be a middle ground which is implicit in the collective agreement. We are quick to acknowledge that we are moving on to thin ice here. But what else can we do when we are dealing with employees who are neither fish nor fowl? The grievors were employed by. the Ministry. They were covered by the collective agreement. But they were neither classified nor unclassified employees, so their rights are not set out expressly in the agreement. .Therefore, their rights. must be inferred from the provisions of the collective agreement. The parties provided for limited rights for unclassified employees because it was contemplated that unclassified employees would be in positions which are in fact “lesser” than those of classified employees. 9 If an employee is not properly in the unclassified service, then it can be inferred from the structure of ‘the collective agreement that this employee ought to have a greater range of rights than an unclassified employee. However, in our view, we do not have the ~authority to turn the grievors into classified employees. “Appointment” is within the exclusive domain of the employer, .pursuant to section 18(l) of the Crown Employees Collective Bargaining Act: And, in any event, it is clear, as we have said, that the grievors were ‘not properly appointed as classified employees, and may never have achieved such an appointment if the positions they filled had been posted. If the positions had been posted, the grievors might have applied but might have lost in the competition for the positions. In our view, given that the grievors should not have been “appointed” to the unclassified service, they should not have been engaged on simple limited-term contracts, and therefore they should be compensated for the abrupt termination of their employment. A good reference for the way in which they should have been dealt with is found in the Employment ~Standards Act. Section 40 of the Act provides for notice of termination or’a payment in lieu of notice, and section 40a provides for severance pay in certain circumstances where an employee has worked for an employer for five or more years. We order that the grievors should be considered to have been covered by sections 40 and 40a of the Employment Standards Act, and they should be paid any amounts to which they are entitled upon the application of these provisions to their situations. The amounts so ordered shall be the whole of their compensation. No interest is payable on these sums. If the grievors have already received monies pursuant to this Act, then no further monies are due to them. If the grievors did receive monies by way of payments in lieu of notice of termination or severance pay, then these ,, d C. Done at London, Ontario, this 29th day of November 10 monies must be subtracted from any amounts which are found to be due to the grievors as a result of our order. We will reserve our jurisdiction to deal with any matter arising out of these orders. J.W.Samuels, Vice-Chairperson "I dissent".(Dissent attached) J. Solberg, Member 11 (’ ,I P Dissent from Janet Solberg Union Nominee Re: OPSEU (Beresford/Milley 1 and The Crown in Right of Ontario ( Ministry of Revenue) GSB File #1492/86 & 1972/87 In understanding the issue before our panel. it is necessar? to remember how these cases came before the original panei chaired by mr. Mitchnick. At that stage: management claimed that’ the grievers xere unclassified emoloyees, properly appointed under s.S of the Pc2,L ic, se,,rvice .c.t... If this claim had been substantiated. r.bk grievors would have been properly governed by individua! contracts of employment authorized by Regulation 6 and their embloyment would have been concluded on the termination of tne contracts by operation of s-9. of the Pubhi.c...~~ervice Act. There would have been no dismissal and thus there could be no dismissa grievance. However. if the grievors had been classified employees. S:~Y would not have been subject to the rules pertaining to unclassified employees. They could not be affected by indi,L::?x contracLs of employment which managementimposed on them, ant their employment could only be terminated for just cause. ‘2::s. their termination wouId become a dismissal which could be I, gr ieved. Hencd~. their status under the Public ~.Se,rvice kct determined their.rights. ficcordingly , this case is either one in which management could terminate the giievors without cause because they were unclassified, or it is one in which the grievors could not be terminated without cause because they were classified. The Mitchnick panels found that the grievors jiere not unclassified because their appointments to that service were unauthorized bv s.8 of the Pub.l_i_I:,..~._5e.rv.i.ce ,... !?c.t..and Regulation t,. In this respect the &r.,es.f.ord panel stated at p .16: “accordingly we must find on the evidence.that we do ha’ve.that the position to which the grievor was appointed was not one which falls within any of the .various situations encompassed by the three Groups set out in the Regulations, and as contemplated by Section 8 of the ~~b.?.i.c..S~e~r.~.~.ce~~.A.ct.. We find, therefore, that the purported appointment of the grievor to the “unclassified” ~~L?pp~s-W! 5.9 _,.. t h.S . ..‘~kk?s i f..i.e,d..“. ~~~se,r v i c e was improper. ” (emphasis added) Therefore, in both cases. management’s claim that the grievors were unclassified and that their emp!oyment Terminated with the conclusion of their =cntracts. failed and the matters were put over for remedy. Hence the issue before the instant Board. The majority of the Board reached the conclusion that the status of the grievor5 had been declared in the earlier awards. I disagree. In tiose awards, the Soar-d set out to determ:.ne the grievers’ status ‘so i: could determine their rights and the Board’s jurisdiction. 9, ,..t it did not complete the process because, at the reauesc of the carties. the matter was referred back to them. At C.lb and c.:: of 6ereeSfo.rd.. the Board states: “we find. therefore, that the puroorted appointment of the, grievor to the “unclassified” as opposed to the “classif ied” service was improper. As the parties recognized at the hearing, however, that finding does not necessarily provide an ansjier for the grievor on the question of. remedy.’ To begin with, as the Union acknowledges, had the position been properly treated as one in the “classified” service, as the Union has contended, the position would have had to be posted. And there have, as noted in. the evidence, bee,n further developments with the Position since the grievor’s tenure there. ended. In all of the circumstances,. therefore, it was agreed by the parties that the question of remedy be left at .this stage to be add:-esed by the parties, with the Soard remaining seized in tie event that the .matter cannot be resolved between them.- Thus. it seems to me that the point for the Soard to dec Is this: If the grievors’should have been appointed to the : ,.: Are zlassif ied service, can or should we require management to malice the appointment? I believe the S,er-ry. decision of the Divisional Court requires us to do so. There are only two categories of bublic servants in tne Pub: L.C. .~er.~~~ice..e.~.~.~, classified and unclassified. The rights under the &t.. in the collective agreement depend upon ~whether ?he grievers are one or the other. If their appointments t the unclassified service were illegal and if they ought to have been a.qpointed to the classified service. then surely we must attempt to regularize their status before we can begin the question of -emedy . Yoreover, the improper appointment did not flow from some technical or clerical error on the contract. It flowed direct!y from the nature of the grievers’ work and working conditions. : ? other words, these employees should have been appointed to the classif i-ed service, since for all intents and pu?poses. they were de facto classified employees by virtue of their duties, their hours and the conditions of their work. This Board would not be compounding an error by making another “improper appointment”. 13 T,hi,s Board would not be substituting or usurping the DoWeTs 5f the Ministry. Rather, this Board would merely beg givin9 effec:s to jih,at the Ministry has already done by its own actions. In .summation therefore., I would have completed the cateqor :zation of A the grievors under the R,,u.bI.i.c., Se.rvice A~ct >Y reot. ;- i r.q management to make their appointment to the classified service. As classified employees. the 3oard would then have Surisdirt:;~, to determi in.7 the gr ievors ’ claim that they were unjustly dis. ,missed and apply the usual remedies of reinstatement wit4 compensation for lost wages. In particular, I tiould not have upheld management’s r i.9;: :.,L. dismiss the yrievors without cause. As I say, this is a :-ig!-. which can only exist if the grievers are unclassified employees. sut CII?? mitchnick panels have already spoken to that issue. Neither 9ere.~~f,o,~rd,~,,nor, ~,.,Mi l~l,,ey,, were found to be ,uncl’assi: F =c ,- emoloyees governed by Section 9 of the Pu~b~li~~~.~~~~S,ervice ..Ac.t Yecause the Mitchnick panels took .jurisdiction ‘of the grieva~nces ~ implicitly. management did not have the right to terminate the’ grievers tiithout cause. Surely, this Board cannot issue a remedy which does just that. ._ Farthermore, I do not feel we can. cr.eate for the grievor5 a status that is neither classified nor .unclassified. The ma jar-i~i rote5 that the “u.~lic,~Serv~lce~.,A.~~t and the collective agreeme:,:. both recognize the existence of only two kinds of s~b!:c servants If this is the case, then it is surely wrong to in?+- an intent to the parties to the collective agreement to estab:la- a <middle category which effectively permits the Ministry to z 0 i_ se improper , oermanent appointments to the unclassified service. I? anvtb.i-;g is implicit in the collective agreement, it must be t-at the mere failure to appoint employees properly to the classified service (who in every other way behave and are treated as classified employees) ought not to preciude these emoloyees from obtaining their rights. Finally, I recognize that. the grievers gained some advanrage f : 5 m the unclassified appointments, even if they were i::ega:. ‘-:z;ever . : think this factor plays absolutely no part in dete-- ;;lining the status of the grievor-s; surely it is somethin orlr :L :e considered when determining the compensation which the grie%,/ors would have received had they not been wrongfully dismissed and lost wages as a result of their dismissal.