Loading...
HomeMy WebLinkAbout1987-2563.Hicks.88-11-07I 1. ONTAR, EMPLOY&DELA COURONNE CROWNEMPLOYEES OEL’ONTARIO ! GRIEVANCE CQMMISSION DE - 3TLEMENT 1 BOARD REGLEMENT DES GRIEFS IN,THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING AC7 Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Hugh Hicks) Before: For the Grievor: - and - The Crown;in Right of Ontario (Ministry of Community and Social Services) Employer EEARING: Grievor For the Employer: D. Fraser ;%GeZCKZii:r>~e,r.$ on, I. Freedman Member C. Linton Member A. Ryder, Q.C. Counsel' Gowling and Henderson Barristers and Solicitors C. G. Riggs, Q.C. Counsel Hicks Morley Hamilton Stewart Storie Barristers and Solicitors June 7th, 1988 \ DECISION -2- This matter is concerned with the right of a public servant who has completed a limited-term appointment to grieve the failure of the government to continue his employment beyond the end of his term as an unjust dismissal. The case involves the application of jurisprudence of the board in two recent cases of Beresford. 1429/86, and Milley, 1972/87, and the further question of the application s. 30(3) of the Public Service Act to an apparent conflict between Article 3.4 of the collective agreement between the parties, and section 6 of Regulation 881 under the Act. Before exploring these issues in any detail we will recount briefly the factual background of this case, and elements of the statutory background which are not in dispute. Mr. Hicks, the grievor, was employed as a .Residential Counselors’ Assistant at the Prince Edward Heights Institute OP the Ministry of Community and Social Services at Picton, Ontario, at the time of termination. He had ear- lier been employed in the same position with a series of fixed term contracts since 1981, but he is only grieving with respect to the last contract, the term of which ran from January 1st 1987, to November 30th, 1987. It is significant, and not disputed by counsel, that under the last contract Mr. Hicks was required to work 40 hours per week. For these contracts, including the last one, he was purportedly appointed to the unclassified service of the government. However it is his case that the appointment was improper, on the authority of jurisprudence of the board in Beresford and Milley (supra). and on other grounds. \ -3- He accordingly seeks a declaration that he was a member of the classified staff during his last contract, and that he accordingly has the right to grieve the termination of his contract as an unjust dismissal. Should he succeed in that matter, he seeks relnstatement in his posttion as a member of the clas- sified service, and requests’that a competition be ordered to be held in accord- ance with the requirement of the collective agreement for that position. The statutory background to these matters is as follows. Public servants under the Public Service Act may either be appointed to the classified service under sections 6 and 7 of the Act, or to the unclassified service under s. 8 of the Act. Those sections read as follows: 6. - (1) When a vacancy exists in the classified service, the deputy minister 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 clas- sified 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 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 qualifica- tion and assignment of the Commission. R.S.O. 1960, c. 418, s. 7. 8. - (1j.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 Pirst’appointment and for any period on any subsequent appointment a person to a position in the unclassified service in any Ministry over which he presides. (2) Any appointment made by a designee under subsection (1) shall be deemed to have been made by his minister. R.S.O. 1980. c. 418. s. 8. \ , -4- An employee is therefore appointed to the classified service under s. 6 by the Civil Scrvice Commission on the nomination of his deputy minister of the ministry, and for an inftlal probationary period. On completion of that probation, the employee may be appointed to the regu- lar staff of the classified service under s. 7. When so appointed, such an employee is called a civil servant under s. 1 (al of the Act; holds his or her position for an unspecified period: and may grieve a dismissal which is allegedly without just cause. That right to grieve under such circum- stances, which is not in dispute herein, is found in s. 18 (2) of the Q.&Q Employees Collective Bargaining Act and various related articles of the collective agreement between the parties, including article 27.8.2 In contrast, an employee is appointed to the unclassified service under s. 8 of the Public Service Act by a minister. or public servant acting as his designee, and the initial appointment must be for not more than one year. Subsequent appointments may be for any specified period, but s. 9 of the Act provides that a person receiving such an appointment ceases to be a public servant at the end of that period. Such an employee is a public servant, but not a civil servant, the latter term being restricted by the Act to those employees in the classified service. Section 9 declares that “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.” It is agreed by counsel that the effect of that section in the context of various provisions of the Crown Employees Collective Bargaining Act, and of the collective agreement is that a duly- i , 1 -5- appointed public servant in the unclassified service does not have the right to bring a grievance for a dismissal allegedly without just cause, where such grievance 1s founded solely on the grounds of the expiration without renewal of a term appolntment under s. 8 of the Public Service Act (see, for example, Joanne Simpson, 694/85). The dispute in this cases arises out of the fact that the grievor herein was required to work 40 hours per week under his contract of employment, and that requirement creates an anomaly when one attempts to match his employment with the appropriate Group in the unclassified service as found in the Regulations under the Act. Section 6 of Regulation 881 under the Public Service Act provides as follows: “Unclassified Service 6. - (1) The unclassified service consists of employees who are employed under individual contracts in which the terms of employ- ment are set out and is dlvided into, (a) 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) on a temporary work assignment arranged by the com- mission 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. - 6 - (v) during their regular school, college or university vaca- tion 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, (A) 36% hours per week where the position, if filled by a civil servant, would be classified as a position requiring 36% hours of work per week, (B) 40 hours per week where the position, if fllled by a civil servant, would be classified as a position requiring 40 hours of work per week, (ii) for fewer that eight consecutive weeks per year where the contract of the employee provides that the employee is to work either 36% hours per week of 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% hours per week or 40 hours per week. 0. Reg. 24/86, s. 3 (1). part. (2) REVOKED: 0. Reg. 24/86, s. 3 (1) part. (3) No person who occupies a position in the classified service shall be employed in the unclassified service, except with the approval of the Commission. (4) No person employed in the unclassified service shall supervise the work of persons employed in the classified service except with the approval with the Commission. R.R.O. 1980, Reg. 881, s. 6 (3. 4) (5). (6) - REVOKED: 0. Reg. 24/86, s. 3 (2) (7) Nothing in sections 7 to 61 applies to an employee appointed to Group 1 of the unclassified service. R.R.O. 1980, Reg. 861, s. 6 (7). That section is detailed and exhaustive in its scope. The grievor’s - employment, it js conceded, bears no relationship either to Group 1, found in s. 6 (l)(a). nor to Group 3, found in s. 6 (l)(c). However, it is similar to Group 2, found in s. 6 (l)(b), with one exception To illustrate that similarity, we will extract relevant portions of the Group 2 description from the subsection, with the following result: “6. (1) 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, (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, (8) 40 hours per week, where the position, if filled by a civil ser- vant, would be classified as a position requiring 40 hours of work per week,” Mr. Hicks is employed for 40 hours per week, not ‘I... fewer than 40 hours per week.” Other requirements of Group 2 are met. but because of his weekly hours of work, he does not fit squarely within the whole description of the Group 2 employee. He is outside of what we have noted are the detailed and exhaustive requirements of the section, and was in fact working the hours of a civil servant in the classified staff. Furthermore, the evidence is that the work he was doing was indistinguishable from that which would be done, and had in fact been done, by a member of the classified staff who had formerly held the same position. Is Mr. Hicks therefore a member of the classified staff, with the consequent rights we have noted? In the Beresford case, the grievor there also worked hours .similar to that of classified staff, and did work indistinguishable from that done . by classified staff. After an extensive review of the jurisprudence, the board there concluded (at pp. 16-171. that: “...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 dlscussed, 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 fact 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 not have been made without the kind of “good reason” which section 6 of the regulations itself sets out. 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. As the parties recognised at the hearing, however, that finding does not necessarily provide an answer 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 have been posted. And there have, as noted in the evidence, been 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 addressed by the parties, with the Board remaining seized in the event that the matter cannot be resolved between them. The Board simply finds and declares, therefore, that the purported limited-term appointment of. the grievor to the “unclassified” service was, on the basis of the evidence and the particular facts before us, improper and unauthorised by the provisions of the Public Serv- ice Act, and the regulations thereunder. Thus the result in the Beresford case was that the purported limited-term appointment was improper and. unauthorised by the provisions .\. I I -9- of the Public Service Act, and regulations, and the question of remedy was left to the parties, with the board remaining seized. The result was adopted in the Milley case. We will now summarize the positions of counsel, before exploring them later in detail. Mr. Ryder, who appeared for the union in both Beresford and w, as well in the instant case, has argued that that result was right, and should be adopted by this board as being the only exhaustive interpreta- tion of s. 8 of the Public Service Act, providing for appointment to the unclassified service, and of s. 6 of Regulation 881 under that Act. He has submitted that the result of those cases, when viewed in the context of the grievor’s employment, is that the grievor falls within the classified category. Mr. Riggs has submitted on behalf of the employer that the result in Beresford and Milley is not determinative of the issue before us. whether or not it is correct. He has proposed that an overtime provision of the collective agreement which contemplates an unclassified employee working a 40-hour week, must override the anomaly of Mr. Hicks’ employ- ment not falling squarely within s. 6 of Regulation 881, because of the effect of a further section of the Public Service Act. His position arises out of s. 30 (3) of the .Act, which reads as follows: 30. - (3) Any provision in a collective agreement that is in conflict with a provision of a regulation as it affects the employees of a bargaining unit covered by the collective agreement prevails over the provision of the regulation. R.S.O. 1980. c. 418, s. 30. - 13 - The provision of the collective agreement that he relies on is Article 3.4, which says: OVERTIME 3.4 One and one-half (1%) times the basic hourly rate shall be paid for authorized hours of work performed: (a) in excess of seven and one-quarter (7%) or eight (8) hours per day, as applicable, where employees work a regular thirty-six and one-quarter (36%) or forty (40) hour work week, as applicable, or (b) in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours, or (c) in excess of the employees’ regularly scheduled work week, or (d) in excess of thirty-six and one-quarter (36%) or forty (40) hours per week where employees do not have regu- larly scheduled work days. Counsel has proposed that the section and article have the following effect. First, it Is conceded that the grievor does not come squarely within Group 2 of s. 6 of Regulation 881. He works 40 hours per week. Group 2 employees work fewer than 40 hours per week, under the other conditions of that section, which have been met. Neither does the grievor fall into either of Groups 1 or 3. But Article 3.4 of the collective agreement is in conflict with the descrip- tion of Group 2 employees found in the regulation. Article 3.2 provides in effect that Article 3.4 “applies only to unclassified staff other than seasonal employees.” Then Article 3.4 provides certain rights for overtime payment to such staff where (in 3.4 (a)) “...employees work a regular thirty-six and .one- quarter (36%) or forty (40) hour work week, _.,‘I this context. The board is accordingly free to decide the issue irrespective of the results in those two cases. Counsel for the union has made a number of submissions in support of the result found in Beresford, and in opposition to Mr. Rig@’ proposition respecting the effect of s. 30 (3) of the Public Service Act. First, he proposed that Beresford and Milley are the only two decisions which reconcile s. 8 and s. 6 of Regulation 881, and they are not manifestly wrong. The interpretation in those cases is consistent with both s. 6 and the - 11 - Therefore the collective agreement in plain language refers to unclassified staff who work a regular 36% or 40 hour work week. If s. 6 of Regulation 881 is exhaustive and complete, there is a conflict between the description of unclassified staff who work regular 36% or 40 hour work weeks, in Article 3.4, and the description of Group 2 in the unclassified service in s. 6 of the Regulation, who work “fewer than” either 36% or 40 hour work weeks. Section 30 (3) of the Public Service Act requires in plain language where such conflict exists, that the provision in the collective agreement prevails. Therefore there can be unclassified staff who work a 40 hour work week, as did the grievor, and he accordingly is a member of the unclassified service with no right to grieve the termination of his employment. Finally, counsel for the government submitted that this latter issue is novel and has never arisen in Beresford and Milley, nor in any prior case in collective agreement. - 12 - Second, section 8 refers to a~ “temporary” appointment. Such appointments are effected within the scope of section 6 of Regulation 881 which is a self- imposed limitation created by the Civil Service Commission in its interpretation of s. 8 of the Public Service Act. If there Is a sequence of such temporary appointments to a position which bears the characteristics of a classified posi- tion, and which would be and has been filled by classified staff, then the dis- tinction between classified and unclassified staff disappears. Such a result conflicts with the notion that classified and unclassified staff have different rights, and is in breach of s. 15 of the Canadian Charter of Rights and Free- doms. which provides in s. 15 (11 that: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, natural or ethnic origin, colour, religion, sex, age or mental or physical disability.” Mr. Ryder proposed that if the only distinction between a member of the classified service and of the unclassified service filling the position held by the grfevor, is in the method of appointment, then that is not a justifiable basis for denying the unclassified employee the “equal protection” that a classified employee has to grieve his dismissal. Such would be prohibited under s. 15 of the Charter as a difference in treatment among “those who are similarly situated” (Re McDonald and The Queen (19851, 51 O.R. (2dl 745 at 746 (Ont. C.A.11. Third, Article 3.4 (al of the collective agreement is a reference to over- time, which can apply to all groups in section 6. It does not necessarily re- define Group 2. as its scope is wider. - 13 - Therefore, if Beresford and Milley are to be applied, and if the distinction between the classified and unclassified service is to be maintained for a posi- tion which has the characteristics oP a classiPied position, and if s. 15 of the Charter 1s not to be breached, the grievor has to be regarded as a classified employee who has a right to be reinstated, and to earn his confirmation to the position he left by way of a competition as provided for in Article 4 of the col- lective agreement. Mr. Riggs responded with respect to the Beresford and _Milley cases, that they may or may not be correct, and noted that there was an application for judicial review of the Beresfofi case, but that did not basically decide the matter. The issue relating to s. 30 (3) of the Act was a new issue, not bePore the board in that case, and the present case would turn on the interpretation of that section. He proposed that the collective agreement goes clearly beyond section 6 of the regulation, in that it recognizes an agreement of parties that those who work regular hours can be unclassified, and that that recognition, in conflict with section 6, must prevail. On the issue of whether the ability of the government to make appoint- ments from both classified and unclassified service to the same position both destroys the distinction between such positions, ,and offends the Charter, Mr. Riggs noted for the employer that the parties have agreed, as is found in their collective agreement, that there is a distinction between the classified and - - 14 - unclassified service, both in the types of appointment (open-ended vs. term), and in various other rights such as those found in the grievance process. These agreed-to distinctions are maintained even in the situation where the position may bye filled by either types of service, and it does not lie for the union to say that employees from each type are “similarly situated.” Accor- dingly, the distinction between the two types of service is maintained, and is sufficiently different that there is no breach of the equality provisions of s. 15 of the Charter. It is our view that these issues respecting the lack of distinction between the two types of service, and consequent violation of the Charter, have been resolved by jurisprudence of the board which is not manifestly wrong. As it noted in the Beresford case at pp. 11 and 12, a similar issue was argued before a panel of the board in Lacasse, 33/86, in which case the board “dismissed the grievance on the ground that “status” under the Public Service Act was determined solely by the nature of an individual’s appointment, and that ‘a public servant (a term which includes unclassified staff) and a civil servant (a term which means only classified staff) do not share the same employment status and therefore cannot be said to be similarly situated’ (page 33).” We accept that jurisprudence and find the same result with respect to the Charter arguments herein, On the related issue of the lack of distinction between an unclassified and a classified employee filling the same position, we would note the following. The method of appoifitment of a classified as con- trasted to an unclassified employee 1s distinctly different (sections 6 and 8 of the Public Service Act). The type of term ,of appointment (open-ended as con- - 15 - trasted to fixed term) resulting from such appointment is different. The rights of a classified employee while in such position are different from those of an unclassified employee (see, for example, ss. 3.3 to 3.15 of the collective agree- ment), and In particular, the rights on termination are markedly different in the general case, as counsel have agreed to. Therefore how one gets the job, what rights one has in it, and how it ends, are distinctly different for each class, and those differences have largely been accepted by the parties in arriving at their collective agreement. The job content may be the same, whether performed by classified or unclassified staff, but the overall employment relationship, of which the job content is an element, is quite different. We see no reason to require that rights of a classified staff must accrue to an employee because the job content is that which a classified staff can do. The parties have agreed otherwise in their collective agreement. Where does that leave the grievor’s status? He does not fall squarely within Group 2 of section 6 of Regulation 881, as has been conceded. The board in Beresford found, and the board in Milley agreed, that under such circum- stances, such a purported limited-term appointment to the “unclassified” service is accordingly improper and unauthorized by the Public Service Act, and regula- tions. The essential reason was that section 6 of the regulations requires an appointment to the unclassified service under section 8 to fall within one of the categories in the regulations, and the appointment in Beresford did not (see Beresford at p, 16, as quoted earlier). On reading the Beresford case; we find that the board canvassed the broader issues before it in a thorough way, and arrived at a careful and logical 16 decision, based on the issues before it, which we accept. We conclude that Beresforg and m are correct, insofar as they vent and are applicable. Nonetheless, that result is not conclusive as ve will have to resolve the further issue raised by Mr. Riggs of the application of s. 30 (3) of the Public w, which ve have outlined above. A reviev of that matter follows. Normally, a statute (including its rcgulatlons) takes precedence In law over a collective agreement, and vhere a collective agreement and a statute conflict, an arbitrator charged vith interpreting the collective agreement must apply the statutory provision rather than the collective agreement, and must apply it correctly (McLeod et al v &an et al, (1974) 46 D.L.R. (3d) 150 (S.C.C.)). In doing so, the nature~of the rights in the collective agreement may be altered so as to conform vith the statute (Heustis v. Nev Brunswick R~sCommission 98 D.L.R. (3d) 622 (S.C.C.1; see also Re Ontario Hvdro and Hvdro EmDlovees' Union, Local 1000 et al, (19831 41 O.R. (2d) 669 LC.A.1). Specifically, where an article of a collective agreement is in conflict with a statutory provision, the provision may be read into the article, vhich is thereby altered, so that harmony is achieved between the two and conflict is avoided (see generally, the judgements of Van Camp and White, J.J., in Re Queen's Universitv and Fraser et al, (1985) 51 O.R. (2dj 140, wherein this principle is approved but the award is quashed in other grounds). In the present case, however, it is the provision in the collective agreement which must prevail over the provision of the regulation. Section 6 17 of Regulation 881 of the public Service Act provides in part, in respect of Group 2 employees, that they vork for fewer than '$6 (l)(b)(i)(B) 40 hours per week vhere the position, if filled by a civil servant, vould be classified as a position requiring 40 hours of vork per week," Section 6 is entitled "Unclassified Service." It is exhaustive and complete on its face, and nothing elsevhere in the Act or Regulations varies its specific content. Article 3.2 of the collective agreement says: "3.2 Sections 3.3 to 3.15 apply only to unclassified staff other than seasonal employees. " Article 3.4 reads in its entirety: "OVERTIME?' 3.4 One and one-half (1 l/2) times the basic hourly rate shall be paid for authorised hours of work performed: (a) in excess of seven and one-guarter (7 l/4) or eight (8) hours per day, as applicable, vhere employees vork a regular thirty-six and one-quarter (36 l/4) or forty (40) hour work week, as applicable or (b) in excess of the scheduled hours for employees who work on a regularly scheduled vork day exceeding eight (8) hours, (c) in excess of the employees' regularly scheduled work week, or (d) in excess of thirty-six and one-quarter (36 l/4) or forty (401 hours per week where employees do not have regularly scheduled work days." and s. 30 (3) of the Public Service Act says: "30 (3) Any provision in a collective agreement that is ln conflict with a provision of a regulation as it affects the employees of a bargaining unit covered by the collective agreement prevails over the provision of the regulation. R.S.O. 1960, c. 416, s. 30." 18 Therefore if a conflict exists betveen Article 3.4 and section 67 of the regulation, section 30 (3) of the Public Service Act requires that Article 3.4 prevail. There is an apparent conflict between the provision of overtime in Article 3.4 (a) for employees who work a regular 36 l/4 or 40 hour veek, and the requirement in 5. 6 that Group 2 employees work fever than 40 hours per week. In one case, a regular 40 hour week is recognized for unclassified staff; in the other it is not. Mr. Ryder noted that Article 3.4 (a) may apply, in various ways, to overtime for various groups in 5. 6 of the Regulation. He proposed that it does not necessarily redefine Group 2, as its scope is wider. Now it is true that Article 3.4 contains various alternatives. Article 3.4 (a) create5 an overtime right "as applicable". And Articles 3.4 (a), (b), Cc), and (d) are separated by the disjuncture "or", which suggests they are to be viewed as alternatives. However, the alternative found in Article 3.4~ (a) which contemplates a regular 36 l/4 or 40 hour work veek can only apply to Group 2. It does not apply to Group 1 as such employees work "for fever than fourteen hours per week or fewer than nine full days in four consecutive weeks or on an irregular or on-call basis" (5.6 (l)(a)(iv)). It does not apply to Group 3 employees as they are appointed "on a seasonal basis" (s.6 (l)(c), and Article 3.2 says that "Sections 3.3 to 3.15 apply only to unclassified staff other than seasonal employees." \ 1 19 Thus the conflict remains one between the recognition In Article 3.4 (a) of a regular 40 hour work week, which can only be for Group 2 employees if it is to be given any force and effect, and the requirement in s.6 that Croup 7. employees vork fever than 40 hours per week. And Section 30 (3) of the Public Service Act requires that the provision in the collective agreement (Article 3.4 (a)) must prevail over the provision in the regulation (s.6 (ll(b)(i)(Bll of Regulation 881 under the Public Service Act. To allow that to happen, which we are required to do, we will adopt the approach approved in principle by the Supreme Court of Canada in Heustis v. New Brunswick Electric Power Commission (supra), and the Divisional Court of Ontario in Re Queen's Universitv and Fraser et al. However, instead of reading the collective agreement so that it conforms vith a statute, we are required to read a regulation of a statute so that it conforms with an article of a collective agreement, thereby resolving the conflict. We accordingly read section 6 (l)(b)(i) of Regulation 881 under the Public Service Act, which says 'l(i) for fever than tvelve consecutive months and for fewer than," as saying instead: "(i) for fewer than tvelve consecutive months and for fewer than or equal to," (addition underlined for clarity). The resulting portion of the section of the Regulation as. it applies to Croup 2 employees, who work a regular 40 hour week as contemplated in Article 3.4 (a) of the collective agreement, will therefore be read as if it says: _’ 20 "6. (1) The unclassified service consists of employees vho are employed under individual contracts in vhich the terms of employment are set out and is divided into, . . . . . . . (b) Group 2, conslstlnq of employees who are employed on a project of a recurring kind, (i) for fewer than twelve consecutive months aM3 for fever than or equal to, . . . . . . . (B) 40 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 40 hours of vork per veek," We would make two comments about this result. The first is that there are other ways to resolve the conflict vhich differ slightly from the above. Our function is not to redraft the portion of the Regulation in the best possible way, but to read those parts which conflict, in such a way that the conflict is avoided. We would also note that it is a logical conclusion of our analysis that the change should apply similarly to a 36 l/4 hour veek. However, that is not part of the m in dispute before us, and we accordingly ,refrain from making such a finding. The result of this reading is that Mr. Hicks employment of 40 hours per week fits squarely within the description of Group 2 employees, when the conflict is avoided as required by s.30 (3) of the Public Service Act. He is therefore a duly appointed member of the unclassified service. The consequence of that, as has been noted earlier, is that he does not have the right to bring a grievance for dismissal allegedly without just cause, vhere such grievance is founded solely on the grounds of the expiration without renewal of his term appointment under s.8 of the public Service Act. The result in Beresford and 21 w no longer determines the issue and does not apply, as it turned on the failure of the appointment to fall squarely within one of the categories of s.6 of Regulation 881, which is not the result here in viev of the new grounds advanced successfully by counsel for the government. The grievance must accordingly be dismissed, and we so find. Dated at Ottawa, this 7th day of November , 1988 &f- D. Fraser, Vice Chairperson e- 1. Freedman, Member &lJcA%b* C. Linton, Member