HomeMy WebLinkAbout1987-2413.Ryder.92-07-21DES GRIEFS
BETNEEIy
FOR TRB A. Ryder
GRIEVOR Counsel
IN TRE MATTER OF AN ARBITRATION
Under
TRB CROWN EMPLOYEES COLLECTIVB BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Ryder)
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Grievor
Employer
N. Dissanayake
I. Thomson
M. O'Toole
Vice-Chairperson
Member
Member
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR T?xE
EMPLOYER
J. Benedict
Manager, Staff Relations & Compensation
Ministry of Correctional Services
BEARING June 26, 1991
..__..., ~.. .-. ..^_ -,
,, 2 .
-,
2
to 40 hours per week, and sometimes more.
DECISION
This decision deals with the appropriate remedy for the
grievor, who this Board has held in a decision dated November
29, 1988, to have been improperly appointed to the
unclassified service. In that decision [see, Re Rvder,
2413/87 (Springate)] the Board set out the pertinent facts.
The grievor was employed at the Hamilton-Wentworth Detention
Centre from April 1, 1985 to December 31, 1987. His
3
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 d
October 1, 1987 to December 31, 1987. It was not renewed.
The Detention Centre employed the grievor and, other
unclassified officers to fill in for absent classified staff.
The unclassified staff were not called in only in response to
extraordinary absentee levels or unusually high work loads,
but were utilized to offset the regular ongoing absentee rate
for regular employees. Although 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 closer . .
3
Following a review of the law, the Board at p. 12
concluded that the grievor was improperly appointed to the
unclassified servile. The Board set out the following
reasons:
On the evidence it is clear that the number of
classified correctional officers employed 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 grievor 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.
Having reached that conclusion, the board did not proceed
to deal with the question of remedy, but remained seized with
jurisdiction to do so. This panel of the Board has the task
of determining that issue of remedy.
While the hearing in this matter was concluded on June
26, 1991, subsequently the Board continued to receive
additional submissions from both counsel, the last' of which
was dated March 6, 1992. While much of that addressed the
proper interpretation of the amendment to section 6 of
Regulation 881189, creating group 4, in the last submission
Mr. Ryder took the position that since the grievor's ',h . .
employment ceased prior to the amendment coming into effect,
4
group 4 had no relevance to this determination. Mr. Benedict
did not take issue with this position.
The Board has on several prior occasions dealt with the
issue of appropriate remedy where an employee is found to have
been improperly appointed to the unclassified service. That
jurisprudence is reviewed in pe El-Karazati, 775188 (Samuels)
as follows:
In any event, for us the issue then becomes "what
is the appropriate remedy in the circumstances?*'
And once again, different panels of this Board have
given very different answers.
In BeresfordlMilley, 1429/86 and 1972187 (Samuels),
the two original cases were combined. The Board
decided that, though the grievors were not properly
appointed to the unclassified service, at the same
time they were also not properly appointed to the
classified service, and the Board did not have the
authority to turn them into classified employees
(in order to be properly appointed to the classified
service, the appointments must be pursuant to
sections 6 and 7 of the public Service Act, and the
position had to be posted pursuant to Article 4 of
the collective agreement). The Board said (at page
9) that it could be inferred from the structure of
the collective agreement that such an employee ought
to have a greater range of rights than an
unclassified employee. The grievor9 ought to 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
Emalovment 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. The Board ordered that the grievor9 should
be considered to have been covered by sections 40
and 40a of the mwlovment Standards Act, and shculd
be paid any amounts to which they were entitled upon
the application of these provisions to their
situations.
5
This award was taken for judicial review. In
an unpublished endorsement dated November 26, 1990,
the Divisional Court decided that the Board was
incorrect when it said that it did not have the
authority to appoint an employee to the classified
service if it considers that remedy appropriate for
the particular employee, but that the Board had not
considered the particular grievances appropriate
"for the exercise of such a drastic remedy", and
the remedy which the Board fashioned was not
patently unreasonable. In sum, the application for
judicial review was dismissed.
In Waoner, 351 and 352/89 (Slone), the Board
emphasised the principle that a remedy is intended
to make the grievor whole - that is, there is no
remedy unless it can be shown that, in fact, the
grievor suffered harm as a result of the employer's
improper conduct (at pages 16 and 17).. In order to
get into the classified service properly, an
employee must compete for a posted position. There.
was no evidence before the Board that showed that,
had the grievor competed for a posted position, the
grievor would have been successful (at pages 17 and
18). The Board concluded (at pages 23 to 24) that
the job which the grievor performed ought to have
been filled by a posting and an appointment to the
classified service; that the Employer must post the
job when it wishes to fill the position again (by
the time of the award, it appeared that the position
would not be filled for some time, because of lack
of funding); that the Employer must permit the
grievor to compete for the position, whether it is
truly an open competition or is posted simply as an
internal competition; that the Employer must
consider the grievor's application in good faith;
and that the Board would retain jurisdiction to
review the process of selection should the grievor
seek such a review.
In Canete 2191/90 (Simmons), the Board again
emphasised that a remedy ought to be remedial and
not punitive (at page 16) , and then went on to order
that the grievor should be placed on the surplus
list in the classified service and dealt with
pursuant to Article 24 of the collective agreement.
Its not clear in the decision why the Board put the
grievor into the classified service, be&use the
Board does not say that, had the grievor competed
for the position in the first place, she would have
succeeded. Perhaps one ought to infer this from
the decision.
6
.
In Blondin 78/89 (Keller), by the time the
Board dealt with the grievances, the grievors had
competed for classified positions, involving the
same work as they had done while unclassified, and
had been successful. The Board decided that this
was good evidence that, had the positions been
posted properly in the first place, the grievors
would have succeeded. In these circumstances, the
Board ordered that the grievors were to be
considered as having been appointed to the
classified service commencing 20 days prior to the
filing of their grievances, and they were entitled
to all wages and benefits flowing from this order.
In Re Greco-Tarantino, 405/89 (Samuels) since the grievor
had already applied to the Employment Standards Branch for
payment in lien of notice of termination and for severance
pay and was awarded both, the Board concluded that no further
remedy was needed.
In Re El-Korazati itself, the grievor had been employed
as an audit trainee from June 1986 to June 1988 under a series
of consecutive limited term contracts. He worked 36-l/4 hours
a week regularly, performing the same work as employees in the
classified service. The grievor testified that he knew that,
in order to become a classified employee, he would have to
compete for a posted Auditor 1 or 2 position and be
interviewed. However, he was encouraged by one of his
supervisors, who told him in June 1987 that his work was very
good and that he had a good chance of becoming a psrmanent
employee "when the first chance comeMlter in 1987, a
7
number of Auditor 1 positions were posted, and the grievor
applied. He was not successful. Several employees, who were
also on limited-term contracts, were successful. After June
30, 1988, his contractual relationship was not extended by the
Ministry. He was told that a backlog of work had been
eliminated and his services were no longer required. There
was no suggestion by the Ministry that his work performance
was unsatisfactory.
The union's position in Re El-Korazati was that the
grievor should be placed on the surplus list as a classified
employee, so that he can benefit from provisions of article
24. Relying on the Supreme Court of Canada decision in PSAC
v. The Queen and Econosult Inc., 91 CLLC para 14, 017, it was
argued that the Board ought not to create a hybrid employee
who is neither unclassified nor classified. The SCC decision
is reviewed in Re El-Korazati at pp. 7-9. Following that
review, the Board distinguished the case before it as follows:
Counsel for the Union in our case urges us to
adopt this reasoning - to find that there is no
middle ground; that if an employee is not properly
appointed to the unclassified service, then the
employee must be in the classified service. But,
in our view, the reasoning in Econosult does not
apply to our case. Mr. Justice Sopinka does notsay
that it is never possible to have a category which
is "neither fish nor fowll'. Rather, he says that
"in the scheme of labour relations which I have
outlined above! there is no place for a species of
de facto public servant who is neither "fish &or
fowl" (emphasis added). He was dealing with a
particular context, and ours is a different context.
Mr. Justice Sopinka makes it clear that the Court
is concerned about the problems which would result
8
if there was a third category of public servant.
It is these resulting problems (some of which he
outlines in the passage quoted above from his
decision) which lead the Court to decide that there
cannot be such a third category. But things are
different in our case. Counsel for the Union did
not point out any particular problems that would
arise if the remedy in BeresfordlMilley were used
by this Board.
The majority of the Board then concluded as follows:
Thus, in our view, the jurisprudence to date
suggests that there are a range of remedies possible
for someone in the grievor's position. The
Divisional Court, in its endorsement to
BeresfordOlilley, says that this Board has the power
to appoint an employee to the classified service if
it considers this remedy appropriate, but suggests
that this is a "drastic remedy".
In our view, this is not a case for the
application of this "drastic remedy". It is up to
the Union to prove that there was harm which ought
to be compensated or remedied. We are not satisfied
that the Union has demonstrated that, if the
Ministry had posted the grievor's position in the
first place, the grievor would have been successful.
There was a competition during the grievor's time
with the Ministry. It occurred after he had been
told by a supervisor that he had a good chance for
permanent employment "when the first chance comes”,
but he was not successful. It has not been
demonstrated that he would have been successful in
any other competition. If we were to put the
grievor into the classified service and on to the
surplus list, he would then have rights to positions
without competition that other employees do not
have.
In our view, the appropriate remedy in this
case is to give the grievor the right to compete
for the next Auditor 1 and Auditor 2 positions in
Metropolitan Toronto which are posted, whether these
positions are posted at large or simply internally.
The Employer must notify the grievor directly of
any such posting. Proper notification will be
deemed to have been given if the Employer sends a
copy of the posting to the grievor by registered
mail, addressed to the address last given to the
3 ~_
. .
9
Employer by the grievor. The Employer must consider
the grievor's application in good faith. We will
retain jurisdiction over any matter arising out of
this order, and in particular, to review the process
of selection should the grievor seek such a review.
Our order covers only the next posting at each
level. Of course, if subsequent vacancies are ,
posted at large, the grievor has every right to
apply.
In Re Tsiotsikas, 907188 (Wilson), the Board reviewed the
Job posting provision in article 4 and the surplus employee
provision in article 24, and concluded as follows:
The rest of the Article continues the same
requirement i.e. that 'I the employee be qualified
to.perform the work". While this does not have the
exact competitive requirements of Article 4, it
still requires that the employee be qualified to
perform the work. Ms. Tsiotsikas ought to benefit
in terms of seniority for her service and Article
24 prevents her being assigned to any work for which
she is not qualified. In that respect, for our
purposes, I am satisfied that the Article 24 remedy
will sufficiently maintain the integrity of the
civil service and indeed of the public service.
Accordingly, I concludethatthe Grievor should
be given an option to either accept the severance
rights she would have under the Emnlovment Standards
&& as in Beresford 2 counting her service as
continuous, or if she chooses in the alternative,
to have herself declared surplus as if she had been
classified staff, and to pursue her possibilities
under Article 24. i give her the choice because the
Ministry made a mistake and now there is no work
available in her old position.
From the foregoing review of the jurisprudence, two
things became apparent. ' ~., .h Fl=tlY, the Ontario Divisigna-1 court
has held that the position taken by the Board in cases such
10
as Re Beresford/Milley and Re Waoner that it did not have
authority to appoint successful grievors to the classified
service was incorrect. While indicating that this Board
possesses the ultimate remedial power to do so if it
considered that remedy appropriate for a particular employee,
the Court suggested that that remedy was "a drastic remedy".
Secondly, the jurisprudence indicates that what is an
appropriate remedy, and specifically whether the drastic
remedy of appointment to the classified service by an order
of the Board is appropriate, in any given case must depend on
the particular facts of that case.
In the present case, Mr. Ryder does not argue, as he did
in previous cases, that an employee who is improperly
appointed to the unclassified service must necessarily be a
member of the classified service. He accepts the Board's
decisions rejecting that argument. Nevertheless he argues
that the Board should not, through its remedial response,
recognise a group of employees who is neither in the
classified or unclassified services. Reliance was placed on
the Supreme Court of Canada decision in Econosult. Reference
was also made to Re Lethbridag, 1739/90 (Samuels) and pe Wei
&I, 1115/86 (Wilson).
Y
.
11
As already noted, the argument based on Re Exonosult has
already been considered and rejected by this Board in Re El-
Korazati (suora). Re Lethbridoe is distinguishable, since
there the grievors had been appointed to the classified
service by the employer and the issue was whether these
appointment which were initially made properly, were vitiated
by subsequent events.
If the grievor's claim to an appointment to the
classified service is to succeed, it must be because such a
drastic remedy is appropriate and warranted to redress the
employer's breach in the particular factual circumstances of
this case. In this regard Mr. Ryder submits that if the
grievor's position had been posted as a vacancy in the
classified service as it should have been, the grievor would
have had '*a reasonable chance" of succeeding. Since the
grievor was denied the opportunity of participating in such
a competition as a result of the employer's wrongful
appointment it is submitted that the remedy sought is
appropriate.
Mr. Benedict for employer, urges us to limit the remedy
to rights under the Emolovment Standards Act. It is his
position that to appoint the grievor to the classified service ',b c
in the particular circumstances of this case would be to
12
bestow upon him a windfall, which is unwarranted and
inappropriate.
After careful consideration, we have concluded that this
is not an appropriate case in which to exercise our drastic
remedial powers to appoint the grievor to the classified
service. The Board in its original decision (The Springate
decision) made the following findings of fact:
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 14 unclassified officers. When filling
vacancies in the classified service, the practice
is to select employees from the unclassified staff.
This ensures that management has had 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.
Thus it is clear that the grievor has had several
opportunities but failed to secure a position in the
classified service through competitions. In our view, it is
not appropriate in these circumstances to appoint the grievor
to the classified service or to place him in a surplus list,
which will confer upon him a classified service p.osition,
without going through a competition process. It is also
’ ,
13
inappropriate in these circumstances to award the grievor any
monitory compensation, because on a balance of probabilities
we cannot be satisfied that he had suffered any monet&ry loss
as a result of the employer's breach.
In all of the circumstances the Board orders the
following remedy. The grievor will have an option of pursuing
his full severance rights under the Emolovment Standards Act,
on the basis that all of his contracts constituted continuous
service. In the alternative, the employer shall notify the
grievor, by registered mail to the grievor's last known
address, of the next vacancy for a Corrections Officer 2,~
which arises at the Hamilton-Wentworth Detention Centre, and
permit him to apply for the same. His application is to be
considered in good faith. Considering that the grievor may
not otherwise have a right to grieve a competition, we hereby
retain jurisdiction to review competition process that takes
place pursuant to this order at the grievor's request and to
deal with any other matter arising out of this order. Within
14 calendar days of the receipt of this decision, the grievor
must inform the employer in writing as to his option of
remedy.
r:.
: .
, ’
14
Dated this2tst day of July 1992 at Hamilton, Ontario
/.y&+ -.
N. Dissanayake
Vice-Chairperson
I. Thomson
M. O'Toole
Member