The URL can be used to link to this page

Home My WebLink About1988-0439.McKinna.89-01-25CQMMISSIONDE REGLEMENT DESGRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 128 -SUITE 2100 180, RUE DUNOAS OUEST. TORONTO, (ONTARIO) MSG 128 -BUREAU 2100 IN THE MAllER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECT1 VE BARGAINING ACT before THE GRIEVANCE.SETTLEMENT BOARD Between: OPSEU (Elizabeth Mckinna) Gri evor and The Crown in Right of Ontario (Ministry of Transportation) Empl oyer Before: D. Fraser Vice-Chairperson J. Sol berg Member M. O'Toole t4ember For the Grievor: A. Ryder Counsel Gowling & Henderson Barri sters and Sol i ci tors For the Employer: C.G. Riggs Counsel Hicks Morley Hamilton Stewart Storie Barri sters and Sol ici tors Hearing: December 9, 1988 DECISION This is an interim decision on a request for an adjournment. The Grievor, Elizabeth McKinna, alleges that she was dismissed from the position of Clerk Typist without just cause. She seeks reinstatement to the position with retroactive pay and benefits effective from April 28th, 1988. The hearing in this matter did not sroceed beyond the stage of preliminary statements from Counsel from each side. At the conclusion of those statements, the board decided to adjourn the hearing sine die on conditions, and it advised it would give written reasons later for its decision. Those reasons, and the conditions for adjournment, follow below. The preliminary statement from Counsel for the Union characterised the present case as dealing with the same issue as was found in two recent cases of this board, Beresford, 1429/86, and Milley, 1972/87, both of which have been recently upheld on review before the Ontario Divisional Court. He further characterised the case as being not unlike the more recent case of Hicksr 2563/87, for which a Notice of Application for Judicial Review has been filed. The Milley case was based on the same issue as the Beresford case, and adopted its reasoning and result. The Beresford case involved the termination of an employee purportedly appointed to a fixed term ccntract in t::e unclassified service of the Employer, under the authority of of 6Act. However, section .-of the Public Service 8sectior.1 Regulation 881 under that Act provides an exhaustive definition of three groups of the unclassified service, and the grievor there did not fall within any of those groups, her work bearing a number of similarities to work done in the classified service. Appointments to the classified service are made under sections 6 and 7 of the Act. Employees so appointed may grieve a dismissal under certain conditions found in section 18(2) of the Crown Employees Collective Barqaining Act, and Article 27 of the collective agreement between the parties. Unclassified employees on fixed term contracts may not so grieve, at the end of their term. Thus the right of Ms. Beresford to grieve her termination depended intrinsically on whether she was a member of the classified or unclassified service, as only the former could allege and grieve an improper dismissal. The case was thoroughly argued on this issue and other, related grounds, and the unanimous conclusion of the board vas that the purported limited-term appointment of the Grievor to the unclassified service was improper and unauthorised by the provisions of the Public Service Act and its regulations. The Hicks case began with a similar issue. However, it turned on what the board there described as "new grounds" (p. 21) advanced by Counsel for the Employer, which ultimately succeeded. Those grounds ir.volved a conflict between language in Article 3.4 of the collective agreement, which refers to unclassified staff who work a regular 36k or 40 hour work week, and a description of the unclassified service in section 6 of Regulation 881 under the Public Service Act, which defines the relevant group as those who work "fewer than" either 36% or 40 hour work weeks. The board in Hicks resolved this conflict by applying section 30(3) of the Act, which requires in such event, the provision in the collective agreement must prevsil over the provision in the Regulation. As a consequence, the Grievor there was found to be a duly appointed member of the unclassified service, unable to invoke the right of a member of the classified service to grieve a purported dismissal, and his grievance was dismissed. The board in Hicks heard that case and issued its decision while Beresford was proceeding to judicial review. However, the Hicks decision does not indicate that either counsel requested an adjournment during the hearing of that case, and the board in that case came to the conclusion that the result in Beresford did not determine the issue nor apply. It made its determination instead on "new grounds advanced successfully by counsel for the governmentW(p. 21). One may conclude from that that the Hicks board viewed the new issue as severable from the submissions made in Eeresford, and that it was appropriate to determine that - issue notwithstanding the pending revieh of Deresfgd. This brings us to the present case. Counsel for the Union indicated in his opening submissions that what he essentially proposed to do, was to convince this panel of the board that the result in Hicks was wrong. For that purpose, he had additional arguments to those presented in the Hicks case, on the central issue of a conflict between the collective agreement and Regulations under the Public Service Act. Xe proposed that it was more appropriate for the koard to review further and determine the Hicks "confiict" issue, rather than for it to be resolved tp the pending judicial review. Counsel for the Employer opposed the view that the board should proceed at this time. He submitted that the jurisprudence was in flux, and that it would be resolved in the near future by the pending judicial review. He suggested that it was not a very productive approach for this board to undertake a further review at this time of the very issue going to judicial review, as such would only serve to complicate the jurisprudence. He requested that we adjourn the matter until it is resolved by the courts. Counsel for the Union responded that it would be preferable for the Hicks jurisprudence'to be explored further by this board, as the result would be jurisprudence developed by a body more closely connected with the issues. h'e view that latter submission as having substantial merit, as it of course reflects the normal process where judicial review does not occur. However, we agree with Counsel for the Employer that once the review process has been launched for the very issue sought to be reargued before us, it would be inappropriate for us to proceed. In adopting such a view, we take notice of a long-standing practice of various panels of this board to adjourn a case where a review of a similar issue has been cofiiuenced, and in doing so we would refer only briefly to tiie enormous complications that could occnr should a board proceed under such circumstances. For example, a panel of this board may reverse the result of an earlier panel as being, in its view "manifestly wrong", or perhaps superseded by later developments in board jurisprudence, but there may at the same time be some variation in the facts or issues considered by the second board. If that is done pending judicial review of the earlier decision, and that earlier decision is upheld, not because it is "correctw, but because the review court defers to it as being within a range of reasonable results, then one can arrive at a situation where simply no one knows where the jurisprudence stands. Variations on this theme abound. Now the Hicks board proceeded notwithstanding the Beresford review because as the decision indicates, it was a r,ew issue, not raised in Beresfor?, ar,d hccordirlg;y nct a matter under judicial review in t1:at c;ecision. -- IIowever, in the present case, Counsel seeks tc explore the very issue raised in Hicks, of a resolution of a conflict between parts of a collective agreement and a regulation. Such would attract the dangers we have noted above, and we are consequently of the view that it is inappropriate to proceed at this time. These are the reasons for our unanimous ruling given orally at the hearincj, which we repezt below. This ]--€;ring is 22journez sine a<icj:G rc-cye5clp? with this or another pariei, to a date tcj be ssk. :-.,-:!;2 Registrar when the following conditions have been satisfied: first, written reasons of the Divisional Court in the judicial review of Beresford, 1429/88, must be available; and second, similzr reasons of the pending judiciai review of Hicks, 2563/89, must be available. In response to concerns voiced by Counsel in this case, we would now note, as we did orally at the hearing, that this is an adjournment, and not a refusal to hear the Union's case in this matter. Dated at Ottawa, this 25 day of Jgnuary, 1989. Vice-Chairperson (Addendnr; attached 1 ADDENDUM Let me begin by distancing myself from the decision rendered by this Vice-Chairman in the Hicka case. In my respectful view, that case was wrongly decided and had I been 8 member of that board, I would have diaaented moat vigoroualy. However, I was-a member of the board which decided the Beresford case. Not surprisingly, I agreed with its reapon- ing and its outcome. More important, the Divisional Court of Ontario has not seen fit to vary that decision. Given that context, it appeared both judicious and practical to adjourn the instant case for the reasons stated in the preliminary award. Now, it may well be that the review of the Divisional Court of Ontario does not resolve the issue in a definitive fashion. And, thus future panels will be faced with two parallel but conflicting decisions on this very important matter. At that point, it seems to me that the Grievance Settlement Board will be under an obligation to resolve the matter once and for all so that an issue which affects thousandn of employees in the government service does not remain in dispute of in confusion for very much longer. J. Sol berg Member