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HomeMy WebLinkAbout1987-2413.Ryder.88-11-29c j ; : E ONTARlO EMPLOYES DE u COURONNE CROWNEUPLOYEES DE L’ONTARIO GRWANCE C@/lMISSION DE EzllMENT REGLEMENT DES GRIEFS + :.: Between: Before: For the Grievor: For the Emlover: IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING-ACT Before THE GRI!?WNCE SETJLEMENT Bw OPSEU-(Shawn Ryder)- and The Crown in Right of Ontario (Ministry of Correctional Services) I.C. Springate Vice-Chairperson S. Hennessy Member M. Wood Member xz:: Gowling & Henderson Barristers and Solicitors J.F. Benedict Manager, Staff Relations & Compensation Ministry of Coirectional Services 2413/87 Grievor > Employer Hearing: May 16, 1988 DECISION The grievor contends that he was dismissed without just cause from his position as a correctional officer at the Hamilton-Wentworth Detention Centre. The grievor was employed at the Detention Centre from April 1, 1985 to December 31;1987. His employment throughout this period was pursuant to seven consecutive fixed term contracts. Each contract contained the notation “Appointment to Unclassified Service”. At no time was the grievor appointed to the classified service by, or on the recommendation of, the Civil Service Commission. The most recent contract covering - the grievor’s employment ran from October 1, 1987 to December 31, 1987. It was not renewed. The grievor contends‘ that the failure to renew his contract amounted to a dismissal. The union contends that the grievor’s contract was not renewed as a result of certain false allegations raised by an inmate of the Detention Centre. The superintendent of the Detention Centre, Mr. v. Villeneuve, however, gave the following explanation for the employer’s decision not to renew the grievor’s contract. The Detention Centre has a complement of about 142 classified corrections officers and 1 4 unclassified officers. When fi‘l,ling vacancies in the classified service, the practice is to select employees from the unclassified staff. This ensures that management has had .- ’ - 2 - an opportunity to evaluate the performance of the person selected. During his two and a half years of employment at the Detention Centre ~the grievor entered competitions for positions in the classified service, but was always unsuccessful. In consequence, management concluded that it was inappropriate to continue to employ him as part of the unclassified service. Mr. villeneuve then directed that the grievor’s current contract not be renewed. The Detention Centre employed .the grievor and other unclassified officers 10 fill in for absent classified staff. The evidence- indicates that unclassified staff were~ not-halledd in only in response to extraordinary absentee levels or unusually high work loads, but were utilised to offset the regular ongoing absentee rate for regular employees; Al though not all unclassified staff were utilized with the .same degree of regularity, for some two and a half years the grievor consistently worked at or close to 40, hours per week, and - sometimes more. As i~ndicated above, there are two categories of employees in the Ontario public service, namely those in the “classified service”, and those in the “unclassified service”. * The Public Service Act provides for these two groupings and, in addition, sets out different procedures for the appointment of - 3 - persons to each of the categories. A probationary employee is appointed to the classified service by the CivilService Commission. Appointments to the regular staff of the classified service are ~made by the Lieutenant Governor in Council on the recommendation of the Civil Service Commission. Appointments to the unclassified service, however, are made by a flinister or by a.person designated by a hinister for that purpose. The provisions of the Act setting out these procedures are as follows: 6.-(l) -ahen a vacancy exists in the ,-classified service, the deputy minister of the ministry in which the~vzZancy 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. 7. The Commission ,shall, if requested in writing by the deputy minister, recommend to the’ Lieutenant Governor in Council the appointment of a person on the probationary staff of the classified service to the regular staff of the classified service, and the recommendation shall be accompanied by the certificate of qualification and assignment of the Commission. 6.-(l) A minister 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 first appointment and for any period on any subsequeht appointment a person to a position in the unclassified service in any Ministry over which he presides. i -4- (2) Any appointment made by a designee under subsection (1) shall be deemed to have been made by his minister. The Public Service Act provides a considerable degree of job security to persons appointed to the regular classified staff. A classified employee can be dismissed for cause, but he or she is entitled to challenge the dismissal as having been without just cause. This right is provided for by section U(2) of the Crown Employees Collective Bargaining Act and J Article 27 of the relevant collective agreement, which provide as follows: CROWN EMPLOYEES COLLECTIVE BARGAINING ACT lS.-(2) In addition to any other rights of grievance under a collective agreement, an employee claiming, . . . (c) that he has been disciplined or dismissed or suspended from his employment without jus~t cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. COLLECTIVE AGREEMENT ARTICLE 27 I 27.6.2 Any employee other than a probationary employee who is dismissed shall be entitled to file a grievance at the second stage of the grievance procedure -5- provided he does so within twenty (20) days of the date of the dismissal. A person appointed to the unclassified services is in a somewhat different situation. Section 8 of the Public Service Act, which is set out above, indicates that appointments to the unclassified service are to be for a specific period of time. Section 9, in turn, provides that a person ceases to be a public servant when the period in question comes to anend: 9. A person who is appointed to a position in the public ser\iice for,a specified period ceases _~ to be a.public-servant at the ~expiration of that period. Apart from certain provisions applicable only to seasonal employees, the collective agreement between the parties does not address reappointments to the unclassified service and does not expresely restrict the employer’s ability not to reappoint a particular individual. Over the years a number of unclassified employees have filed grievances claiming that the non-renewal of their contracts amounted to a dismissal without just cause. Prior to the award in Beresford, 1429/86 (Mitchnick), the Board consistently accepted ~the empldy’er’s contention that the employment of the employees in question. had “ceased” by operation of section 9 of the Public Service Act and, ’ I - 6 - accordingly, they could not be said to have been “dismissed” within the meaning of section 18(2) of the Crown Employees Collective Bargaining Act. In the result, the Board concluded it did not have the jurisdiction to deal with any of the grievances. See : Shipley, 0223/86 (Samuels), and the awards referred to therein. The Beresford case involved a MS. L. Beresford who had been employed,as a consul operator in the Information Services Branch of the Ministry of Government Services. There were 20 such consul op5rator8, and had been for approximately 10 years. At then-relevant~ time, half of the operators .wereein- -- the classified service and half, including Ms. Beresford, were -in the uncla$sified service. They all performed the same duties and wor.ked the same hours. Hs. Beresford's contract was not renewed. Her position was subsequently filled by another individual who was also signed to a fixed term contract. MS. Beresford filed a grievance alleging that she had been dismissed without just cause. As might be expected, the employer contended that the Board did not have jurisdiction to deal with the matter because MS. Beresford had not been dismissed, but rather, her limited-term appointment had come to * i an end. The union replied that this argument was not open to the employer because Ms. Beresford had not, in fact, been - 7 - properly appointed to a position within the unclassified service . The union based this contention on section 6 of Regulation 881 under the Public Service Act. This section describes the groups of employees who make up the unclassified service, as follows: 6.(I) The unclassified service consists of employees who are employed under individual contracts in which the terms of employment are set out and is divided into (a) Group 1, consisting of employees who are employed, (i) ;:3;-project of a non-recurring , (ii) in a professional or other special capacity, (iii) 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, (v) during their regular school, college or university vacation period or under a co-operative educational training program; (b) Group 2, consisting of employees ‘who are employed on a project of a recurring kind, . (i) for fewer than twelve consecutive .,-months and for fewer than, -6- (A) 36-l/4 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 36-l/4 hours of work per week, (B 1 40 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 40 hours of work . per week, (ii) 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; (c) Group 3-consisting of employees appointed on a seasonal basis for a period of.at least eight-consecutive weeks but less-.. _ than twelve consecutive months to-an annually recurring position where-the contract provides that the employee is to work either 36-l/4 hours per week or 40 hours per week. -~ Given the nature of her employment, the-Board- concluded that MS. Beresford had not come within any of the three groups of employees referred to in section 6 of Regulation 881. The Board then went on to hold that As. Beresford’s appoin,tment to the unclassified service had been improper. The Board’s reasoning in this regard was as follows: Section 6 of Regulation 881, as pointed out- above, provides that “the unclassified service consists of” contract e’mployees and “is divided into” 3 groups, which are set out in detail in the remainder of the section. That language is cast in a way that is “exhaustive” (as opposed to “inclusive”), and appears to - 9 - provide, in a way expressly authorized by section 30 of the Act, a definition of the kind of situation contemplated by inclusion of a power of appointment to the unclassified service by way of section 8 of the.Az. Those 3 “Groups” set out in the regulation, on the other hand, cover a very wide range of situations, and obviously create a broad degree of discretion in a minister when considering a fixed-term appointment to the unclassified service, rather than an open-ended appointment to the classified. In fact, the bulk of the appointments ‘to theunclassified staff would in all likelihood “speak for themselves”, in the sense that they would, by their very nature, fall within the terms of section 6. It may well be that in such cases no further evidence from ‘I the employer will be needed. It is only, in other words, where the evidence pertaining to the position suggests on its face that the position fits into none of the categories of employment set out in section 6 of the regulations that an onus -wi-ll- Shari-se.-upon the employer to present evidence of its own which would demonstrate that the appointment did in fact fall within one of the specified - categories. This is one of those cases. The position to which the grievor was appointed clearly was not “seasonal”, had no different hours or other conditions of .employment than the similar positions to which persons had been appointed to the classified service, and all of the evidence we have as to the temporal nature of the position points to the contrary of it being of a “non-recurring” or “temporary” kind of position. Yet, as discussed, we are compelled to conclude that section 6 of the regulations, by its very terms, requires an appointment to the unclassified service under section 8 to fall within one of the categories set out in the regulations. Counsel for the employer, in light of the fsct that no evidence of the employer’s intentions or perceptions with respect to the grievor’s position was‘ called, urged the Board to assume that the limited-term appointment would no~t have been made without the kind of “good reason” .which section 6 3f the regul~ations itself sets out. - 10 - We are not prepared to do that. Accordingly, we must find on the evidence that we do have that the position to which the grievor was appointed was not one which falls within any of the various situations encompassed by the 3 Groups set out in the regulations, and as contemplated by section 8 of the Public Service Act. We find, therefore, that the purported appointment of the grievor to the “unclassified” as opposed to the “classified” service was improper. After concluding that Ms. Seresford had not been .properly appointed to the unclassified service, the Board refrained from reaching any other conclusions with respect to her status or whether the Board had jurisdiction to deal with her grievance. Rather, the Board simply remained seized of the proceedings in the event the parties could not resolve the outstanding issues themselves. In the subsequent case of Milley,-1972/87 (Mitchnick), the Board was faced,with another employee whose fixed term contract had not been renewed. The employer acknowledged that the employee had been in a position which did not fall within any of the three groups referred to in section 6 of Regulation 881.. The employer contended, however, that the Board in Beresford had erred in its’interpretation of section 8 of the Public Service Act and secti-on 6 of the Regulation and accordingly should not be followed. The employer further submitted,that section 6 of the,Regulation could not stand in face of the unrestricted language in section 8 of the Act and, a - 11 - accordingly, the hoard should declare that the relevant section of the Regulation was of no effect. The Board declined to adopt either of these submissions. Instead;it indicated that it would follow the reasoning in Beresford. The Board did not make any final determination as to the grievor’s status or its jurisdiction to deal with his grievance. It simply indicated that the case would be relisted.for continuation of hearing at the request of either party. In the instant case, union counsel in his opening statement contended that ‘the grievor had not been properly included in the unclassified service and, accordingly, .should be regarded as having been within the classified service and thus entitled to grieve the cessation of his employment. In his final submissions, however, as well.as in a subsequent letter to the Board, counsel made~it clear that at this stage .of the proceedings the union did not desire to have the Board actually address the consequences of a finding that the grievor had not been properly appointed to the unclassified service. While the representative of the employer contended that any finding the Board might make in this regard would not be relevant to these proceedings, he did not specifically object to the manner of proceeding proposed by the union. Accordingly, by way of this award we will address only the issue of whether the grievor was employed within one of the .:,. :;. :,..I:. ; : . . ‘-. : - 1.3 - DATED AT AJAX THIS 29th DAY OF November 1988. Chairperson c- ) 1 - S. Hennessy - M&ber M. Wood - Member - 12 - three groups referred to in section 6 of Regulation 861 as constituting the unclassified service. On the evidence it is clear that the number of classified correctional officers e~mployed at the Hamilton-Wentworth Detention Centre is not adequate to meet the Centre’s staffing needs. The employer has responded to this situation by regularly utilizing unclassified staff. The grgevor was regularly employed as a correctional officer for ; some two and a half years. His employment was clearly not of the type contemplated by section 6 of Regulation 881. Accordingly, we find that the grievor did not come within any of the groups referred to in the Regulation as constituting the unclassified service. There remains the question of whether the finding set out in the preceding paragraph results in this Board having jurisdiction over the non-renewal of the grievor’s contract. The Board will remain .seized of these proceedings in order to deal with that and all other outstanding issues. This matter will be listed for continuation of hearing at-the, request of either party. , - 13 - DATED AT AJAX THIS 29th DAY OF November 1988. I.C. Springate Chairperson c-7-l v. \ ‘. S. Hennessy - Member M. wood - Member -