HomeMy WebLinkAbout1990-2184.Senior.91-11-07. Decision1991 - OPSEU (Senior) and Ministry of the Solicitor General, GSB#1990-2184, (Roberts)
EMPLOYES DE LA COURONNE DE L 'ONTARIO DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO).
M5G (4 16 326-1388 (4 161 326-1396 2184/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Senior)
Grievor The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE : FOR THE GRIEVOR FOR THE EMPLOYER HEARING J. Roberts Vice-Chairperson T. Browes-Bugden Member
D. Clark Member G. Richards Senior Grievance Officer Ontario Public Service Employees Union R. Staniusz Counsel Stringer, Brisbin & Humphrey Barristers & Solicitors July 31, 1991
INTERIM AWARD At the outset of the April 5, 1991, hearing in this matter, the Ministry objected to jurisdiction on the ground that the grievor could not grieve the loss of a job competition
because he was a Group 1 employee in the unclassified service within the meaning of s. 6(l)(a)(i) of Regulation 881 under the Public Service Act. This submission was based upon characterizing
the grievor’s employment as being "on a project of a non-recurring kind." Thereafter, the Board issued an interim award dismissing this objection because "we could not conclude that
what was claimed to be a 'project of a non-recurring kind' was sufficiently defined to constitute a bona fide undertaking planned by the Ministry." This meant that the grievor had been
improperly appointed to the unclassified service. On the next day of hearing, July 31, 1991, the Ministry made a second preliminary objection to jurisdiction. Counsel for the Ministry
submitted that even if the grievor had been, as the Board found, improperly appointed to the unclassified service, he still did not have the right to grieve the loss of the job competition
in question. It was submitted that under the Collective Agreement the right to grieve in a job posting case was restricted to public servants in the classified service, and the Board
did not have the power to (1) appoint the grievor to the classified service: nor (2) accord him some of the rights of a classified employee.
2 In the alternative, it was submitted that even if the Board found that it had either or both of the above powers, the present case was not extreme enough to warrant their exercise.
The evidence indicated that the grievor worked for a little less than 1 1/2 years as an Accommodation Officer 1 in the Accommodation Services Branch of the Ministry of the Solicitor
General. He was first appointed under a contract that ran from June 21, 1989 to December 31, 1989, He was then reappointed from January 2, 1990 to June 30, 1990; July 2, 1990 to September
28, 1990; and, finally, from October 10, 1990 to November 30, 1990. The grievor, however, did not complete his final term. On July 9, 1990, the Ministry posted his position as a vacancy
for an Accommodation Officer 2 in the classified service. The grievor applied and was unsuccessful in the competition. He was given three weeks' notice of termination and the successful
incumbent commenced employment on November 5, 1990. The grievance leading to the present proceeding was filed on October 19, 1990, while the grievor was still in the position. In his
grievance the grievor challenged the selection procedure and result of the competition, and requested in settlement "full time employment as Accommodation Officer 2". The responses of
the Ministry at the stages of the grievance procedure, it seems, did not expressly challenge the grievor's right to grieve; however, the
3 Union did not raise any issue of waiver or estoppel in response to the jurisdictional challenges entered by the Ministry at the hearing stage. Accordingly, the jurisdictional challenges
are properly before us and we turn now to consider them. (1) Remedial Jurisdiction to Appoint to the Classified Service At one time, it was thought that the Grievance Settlement Board
did not have jurisdiction to appoint a grievor to the classified service. Vice Chair Samuels succinctly set out the reasons for this in Beresford/Milley v. Ministry of Revenue (1989),
G.S.B. Nos. 1429/86, 1972/87, when he said: However, in our view, we do not have the authority to turn the grievors into classified employees. "Appointment" is within the exclusion domain
of the employer, pursuant to section 18(1) 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. ... 1 It was thought that the power of appointment was reserved exclusively to the employer by virtue of certain provisions
of the Crown Employees’ Collective Bargaining Act. When the Beresford/Milley award was judicially reviewed by the Divisional Court, however, the court concluded otherwise. In a 1 Id
at p. 9.
4 brief endorsement, Callaghan C. J. stated that in light of the Divisional Court's previous decision in Ontario Public Service Employee's Union (Anderson) v. Ontario (Ministry of National
Resources) ( 1990), 40 O.A.C. 389, the "Board does have the ultimate remedial power to appoint an employee to the classified service if it considers that remedy appropriate for a particular
employee. " Ontario (Ministry of Revenue) V. Ontario Public Service Employees' Union (Beresford/Milley), Unpublished Endorsement, November 6, 1990, at p. 1. In Anderson, the case relied
upon by the court in Beresford/Milley, the Divisional Court concluded that as "necessarily incidental to the employee s right to grieve classification and the Board's power to effect
the final settlement of classification grievances ...[ the Board possessed] remedial jurisdiction to review the content of a class standard and instruct management to alter or amend
it." Id. at p. 397. In reaching this conclusion, the Division Court observed: This necessarily incidental activity on the fringe of the classification system reserved to the employer
under s. 18(1)(a) [of the Crown Employees' Collective Bargaining Act] does not represent any incursion into the statutorily protected zone of management classification rights. classification
zone.
To restrict the power of the Board would produce] bad labour relations practice and ...[ frustrate] the intent of the legislature ... The Board might take the view that...the power [to
instruct management to alter or amend a class standard] should only be exercised in extreme cases. However rare may be such an extreme case, ... the power is in law available to the
Board in any case it considered it necessary... Id., at p. 397. (Emphasis supplied). While recognizing that the statute created a protected zone of classification activity reserved exclusively
to management, the court concluded that as necessarily incidental to the employee's right to grieve classification and the remedial jurisdiction of the Board to effect a final settlement
of grievances, the Board possessed in law a discretionary power to instruct management to alter or amend a class standard. The Divisional Court took pains to suggest limitations upon
the scope of exercise of this power. The court described it as a power on the periphery of management's protected classification zone. It was suggested that the power be kept in reserve
for extreme cases more or less as a lurking, ultimate power to be exercised functionally and pragmatically to promote good labour relations and the efficient resolution of grievances.
Id., at pp. 395-396. Based upon our review of the Beresford/Milley and Anderson decisions of the Divisional Court, we conclude that the Grievance Settlement Board possesses a discretionary
power to appoint to the
6 classified service. In deciding whether to exercise this power the Board should in mind the following considerations, which have been distilled from the Beresford/Milley and Anderson
decisions: (1) The power is remedial; (2) In cases involving amendment of class standards as in Anderson, there are two jurisdictional underpinnings for the power: the employee's right
to grieve and the remedial jurisdiction of the Board to effect a final and binding settlement of the grievance. In cases of improper appointment to the unclassified service, there is
an additional jurisdictional underpinning: the jurisdiction of the Board to resolve challenges to the arbitrability of grievances; (3) The power to appoint to the classified service
is a peripheral power. In cases of improper appointment to the unclassified service, it is on the periphery of management's exclusive right to appoint pursuant to s. 18(1) of the Crown
Employees' Collective Bargaining Act. It must be exercised in a manner that least intrudes upon the exclusive right of management; (4) The power should be kept in reserve for extreme
cases; and, ( 5 ) The power should only be exercised in a way that, viewed from a pragmatic and functional perspective, promotes good labour relation, or the efficient resolution of
grievances. ( 2 ) Remedial Jurisdiction to Accord a Grievor Some of the Rights of an Employee in the Classified Service In the Beresford/Milley award, Vice Chair Samuels created a category
of employees who were neither fish nor fowl, in the sense of neither being in the classified nor unclassified services contemplated by the Public Service Act. He said: Counsel for the
Union now argues that the grievors must be classified employees, because there are only two types of
7 public servants contemplated in the Public Service Act classified and unclassified. In our view, this cannot be correct. As counsel for the Ministry argued, just as the grievors were
not properly appointed to the unclassified service, it is clear that they were not properly appointed to the classified 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. 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(1)
of the Crown Employees Collective Bargaining Act. Id., at pp. 3, 8-9. Employees in this category were said to occupy a middle ground, possessing a greater range of rights under the collective
agreement than an unclassified employee, but narrower than the rights of an employee in the classified service. The remedy applied by Vice Chair Samuels in Beresford/Milley was based
squarely upon placing the grievors in this third category. He ordered that the grievors be treated as employees
8 entitled to payment in lieu of notice of termination pursuant to ss. 40 and 40a of the Employment Standards Act. Upon judicial review, the Divisional Court approved, saying, "The Board,
based on its findings about the situation of these grievors, fashioned its own remedy and we cannot say that it was patently unreasonable in the exercise of that jurisdiction. Endorsement
of Divisional Court, supra, at p. 1. Since the award in Beresford/Milley, the parties and the Board have taken steps indicating that they have placed a degree of reliance upon our professed
jurisdiction to consider some grievors as occupying this middle category. It seems to go without saying that the implications of the Beresford/Milley award were notoriously well known
among the parties to the collective agreement, yet they subsequently negotiated a new collective agreement without including any language altering its impact. As for the Board, a number
of awards have been issued since Beresford/Milley which also fashioned remedies based upon the existence of a middle category of employee. For example, in Re Greco-Tarantine and the
Ministsry of Social Services (1989), G.S.B. No. 405/89 (Samuels), where an unclassified employee contested her "discharge", the Board concluded that she was improperly appointed the
unclassified service and, as such, was a public servant within the meaning of Article 1.1 of the collective agreement. This gave her the right to grieve. The fact
9 that she did not meet in a formal sense the definition of "public servant" in s. 1(g) of the Public Service Act was discounted as irrelevant. Id., at pp. 10-11. Her remedy, however,
was limited to payment of termination pay under the Employment Standards Act. In Re Canete and Ministry of Financial Institutions (1991), G.S.B. No. 2191/90 (Simmons), an unclassified
employee once again contested her "discharge". The Board found that she had been improperly appointed to the unclassified service and placed her in the middle category of employees established
in Beresford/Milley. Id., at pp. 7-11. The Board considered that an appropriate remedy was to place the grievor "on the surplus list in the classified service pursuant to Article 24
of the Collective Agreement which will enable her to seek active employment within the government." Id., at p. 17. In Re Blondin and Ministry of Community & Social Services (1991), G.S.B.
No. 78/89 (Keller) three grievors who were longterm member of the unclassified service received appointments to the classified service when their jobs were finally posted and they were
successful in the ensuing competition. Both before and after the competition their jobs remained the same. They grieved, claiming the wages and benefits of classified employees for part
of the time they were unclassified. The issue placed before the Board was slightly different, being cast in terms of seeking compensation for an unlawful delay of the Ministry in posting
the job.
10 Nevertheless, the Board concluded 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."
Id., at p. 6. Despite this record of reliance upon our professed jurisdiction to appoint to a middle category of employees, the Union brought to the attention of the Board a decision
of the Supreme Court of Canada that, it was submitted, cast some doubt upon this approach. This was the Econosult decision, Public Service Alliance of Canada v. The Queen and Econsult
Inc., Unpublished Reasons for Judgment, March 21, 1991 (S.C.C.). In Econsosult, the question before the Supreme Court was whether the federal Public Service Staff Relations Board exceeded
its jurisdiction when it decided that penitentiary teachers from an outside contractor, Econosult, were employees within an established bargaining unit of the Public Service Alliance.
The federal Public Service Employment Act, R.S.C. 1970, c. P-32, provided, in pertinent part, as follows: 2.(1) In this Act [and the Public Service Staff Relations Act] "employee" means
a person employed in that part of the Public Service to which the [Public Service] Commission has the exclusive right and authority to appoint persons.
11 a. Except as provided in this Act, the [Public Service] Commission has the exclusive right and authority to make appointments to or from within the Public Service ... . The federal
Public Service Staff Relations Act, R.S.C. 1970, c. P-35, from which the Board drew its jurisdiction in the matter, provided : 33. Where, at any time following the determination by the
Board of a group of employees to constitute a unit appropriate for collective bargaining, any question arises as to whether any employee or class of employees is or is not included therein
or is included in any other unit, the Board shall, on application by the employer or any employee organization affected, determine the question. As to the scope of jurisdiction conferred
upon the Board by s. 33 of the Public Service Staff Relations Act, the Supreme Court found it to be very narrow. In majority reasons, Sopinka J. said: In my opinion the wording of s.
33 itself, aided by the definition of the word "employee" provided by s. 2, is practically decisive in this case. Section 33 is intended to enable the Board to resolve any question as
to whether an employee or class of employees is or is not included in a bargaining unit. ... The express definition of employee, however, shows a clear intention by Parliament that it
has decided the category of employee over which the Board is to have jurisdiction. It is restricted to persons employed in the public service and who are not covered by the Canada Labour
Code. The Board's function by the very words of s. 33 is not to determine who is an employee but rather whether employees who come within the definition provided, are included in a particular
bargaining unit. ... The conclusion that the teachers are employees of the Government of Canada is the basis for finding that they are included in the bargaining unit. A finding that
they are employees of the Government of Canada simpliciter would clearly exceed the authority conferred by s. 33 and would fly in the face of s. 8 of the Employment Act which expressly
reserves this power to the
12 Public Service Commission. Id., at pp. 14-17. In the view of the majority, the Board clearly did not have jurisdiction under s. 33 to determine whether outside contractors were, in
fact, employees within the bargaining unit. As to a suggestion by Cory J. in dissent that the contract teachers from Econosult could be treated as de facto public servants for limited
purposes such as payment of union dues, Sopinka J. said: In the scheme of labour relations which I have outlined above there is just no place for a species of de facto public servant
who is neither fish nor fowl. The introduction of this special breed of public servant would cause a number of problems which leads to the conclusion that creation of this third category
is not in keeping with the purpose of the legislation when viewed from the perspective of a pragmatic and functional approach. ... Accordingly a bargaining unit which is designed to
include all those with a unity of interest would have two classes of employees. On the one hand, the "legal" public servant must take an oath of allegiance and of office, has his or
her tenure of office fixed by statute, and is subject to other statutory restrictions but receives other benefits, while, on the other hand, the de facto public servant is free to work
these terms out with his or her contractual employer and indeed bargain collectively with the latter in respect of these matters. There is no provision in the Code that excludes its
application to de facto public servants, even those so found by the Board. There is, therefore, the prospect that the teachers could be represented by two unions certified by two different
boards. Furthermore, the Board's order does not purport to nullify the contract with Econosult and it is unclear who is to pay the contract teachers. As parties to their contracts with
Econosult they are entitled to be paid by it and yet they are also entitled to the benefits of the collective agreement. The Treasury Board is to make deductions by way of check-off
but it is by no means clear that it can deduct these amounts from the payments it must make to Econosult under its contract with it, which apparently remains on foot. Id., at pp. 17-18.
13 The creation of a de facto category of public servant who was neither fish nor fowl was seen as creating too many practical difficulties to be in keeping with a pragmatic and functional
approach to the jurisdiction of the Board under the relevant ‘statutory scheme. We do not think that the reasons of Sopinka J. apply with any degree of force to the professed jurisdiction
of this Board to place those who were improperly appointed to the unclassified service into a middle category of employees. First, Sopinka J. was dealing with an entirely different situation
the problem of contracting out. He foresaw tremendous practical problems in treating the employees of outside contractors as de facto employees of the federal government. The interjection
of two employers, he said, would be too chaotic. The employees of outside contractors could potentially be subjected to conflicting sets of benefits, conflicting sets of working conditions,
two sets of union representation, and be completely confused as to which employer was to pay them. None of these practical difficulties is found in the case of improper appointment to
the unclassified service. There is no second employer. Regardless of whether an appointment is to the classified service, unclassified service, or to the de facto middle category defined
in Beresford/Milley, the only party in the position of employer remains the Crown in Right of Ontario.
14 Secondly, there is no evidence before this Board that the exercise of its professed jurisdiction to appoint to a middle category has created any significant practical difficulties
for the parties. If such difficulties had arisen, we would have expected the parties to attempt to nullify Beresford/Milley in the last round of negotiations. As already indicated, it
seems they did not. Moreover, the Board has not encountered any practical or functional difficulties in administering this remedy, and has made recourse to it on several occasions. If
the remedy of appointment to a middle category were unavailable to the Board, tremendous practical difficulties would ensue. The Board would be left with no discretion at all --no choice
but to appoint to the classified service an employee whose appointment to the unclassified service was found to be improper. Yet, as the Divisional Court indicated in Anderson and its
Endorsement in Beresford/Milley, supra, to do so automatically in every case would trench far too deeply into the statutorily protected zone of management's exclusive right to appoint
under s. 18 (1) of the Crown Employers' Collective Bargaining Act. Thirdly, Econosult was decided under an entirely different statutory scheme that, as Sopinka J. found, did not even
empower the Public Service Staff Relations Board to consider whether anyone qualified as an employee of the federal government. The function of the Board under the express wording of
its enabling statute, s.
15 33 of the Public Service Staff Relations Act, was, .according to Sopinka J., "not to determine who is an employee but rather whether employees ,..[previously appointed to the public
service by the Public Service Commission] are included in a particular bargaining unit." Id., at pp. 14-15. There is no doubt of our remedial authority under our statutory scheme to
determine whether a grievor qualifies as an employee of the provincial government. Indeed, that was the entire basis of the Endorsement of the Divisional Court in Beresford/Milley. Finally,
the determination of the Supreme Court that the Public Service Staff Relations Board exceeded its jurisdiction under s. 33 of the Public Service Staff Relations Act was, in Sopinka J,
's own words, "practically decisive in. . . [the] case. " Id., at p. 14. In light of this, Sopinka J's further remarks regarding the impracticality of creating a de facto category of
public servant seem to be more in the nature of dictum than ratio. We are convinced that based upon this consideration, the distinction in the circumstances, the distinction in the legislation,
and demonstrated practicality, the decision of the Supreme Court of Canada in Econosult does not disturb the preexisting jurisprudence empowering us to appoint to a Beresford/Milley
middle category.
16 We now turn to consider the factors that should guide us in deciding upon the additional rights to be accorded to a grievor who, in the context of a jurisdictional challenge, is found
to occupy the Beresford/Milley middle category by virtue of having been improperly appointed to the unclassified service. It seems evident that several of the same considerations apply
as in the case of our jurisdiction to appoint to the classified service. These are: The power is remedial; it has as its jurisdictional underpinnings the jurisdiction of the Board to
resolve challenges to the arbitrability of grievances, the employee's right to grieve and the remedial jurisdiction of the Board to effect a final and binding settlement of grievances;
It is a peripheral power that must be exercised in a manner that least intrudes upon the exclusive right of management to appoint to the classified services under s. 18(1) of the Crown
Employees' Collective Bargaining Act; and, The power should be exercised in a way that, viewed from a pragmatic and functional perspective, promotes good labour relations or the efficient
resolution of grievances. There seems to be little doubt that in the past, these factors have influenced the Board in fashioning remedies in Beresford/Milley type cases. For instance,
in the Beresford/Milley award, Vice Chair Samuels accorded the grievors, who had been in the unclassified service for approximately 18 months and 2 years respectively, the right to grieve
discharge, but denied them the
right not to be discharged except for just cause. relief to payment in lieu of notice of termination 17 He limited their under ss. 40 and 40a of the Employment Standards Act. Id., at
p. 9. In Greco-Tarantino, Vice Chair Samuels accorded the grievor, who had been in the unclassified service for 7 years, the right to grieve discharge but denied her the right not to
be discharged except for just cause. Once again, he limited relief to payment in lieu of notice of termination under the Employment Standards Act. Id., at p. 13. In Canete, Vice Chair
Simmons, accorded the grievor, who had been in the unclassified service for approximately 1 1/2 years, the right to grieve discharge but limited her remedy to placement on the surplus
list pursuant to Article 24 of the Collective Agreement. Id., at p. 17. These cases indicate that the Board has considered it to be least intrusive upon the exclusive right of management
and, viewed from a pragmatic and functional perspective, ‘in the interest of good labour relations to accord the right to grieve discharge to those found to occupy the Beresford/Milley
middle category. However, beyond this, the Board has been reluctant to grant such employees such as reinstatement, which are routinely remedies available to those in the classified service.
This brings us to the final issue in this interim award:
18 (3) Whether the Present Circumstances Warrant the Exercise of the Board's Jurisdiction Either to Appoint to the Classified Service or Accord the Grievor Some of the Rights of a Classified
Employee: It seems to be a foregone conclusion that the present circumstances do not warrant the exercise of our jurisdiction to appoint to the classified service. This is a power that
should be kept in reserve for extreme cases, and the circumstances herein fall far short of an "extreme" characterization. The grievor was only in the unclassified service for a little
less than 1 1/2 years. The Ministry was not shown to have delayed posting the position in question for an unlawful period of time. The record was devoid of any instances of unconscionable
treatment of the grievor. The grievor was not shown to have been induced by the Ministry to give up other opportunities for the job in question. No representation was shown to have been
made that the job would be his on a permanent basis. The posting of the job was not shown to be a retaliatory or punitive gesture directed toward the grievor. The grievor was given full
opportunity to apply and be considered for the permanent position. We do not see any reason here to exercise our jurisdiction to appoint to the classified service.
19 Turning to the question whether we should exercise our jurisdiction to accord the grievor some of the rights of an employee in the classified service, we note at the outset that the
only such right that need be addressed in this interim award is the right to grieve the job competition for Accommodation Officer 2. The question whether the grievor should be entitled,
if successful, to the same remedies as a classified employee may be left to another day. Counsel for the Ministry submitted that the grievor should not be accorded the right to grieve
the competition in question. The other Beresford/Milley -type awards, he pointed out, granted the sight to grieve discharge. This was a statutory right under the Crown Employees' Collective
Bargaining Act, counsel noted, and not merely a right under the collective agreement as in the case of the right to grieve the loss of a competition. We do not perceive any substance
to exist in this distinction. In its previous Beresford/Milley -type awards, the Board never placed any significance upon the source from which the right to grieve was derived. The point
was not even mentioned. Moreover, Vice Chair Samuels expressly stated in the Beresford Milley award that the rights of employees in the middle category "must be inferred from the collective
agreement." Id., at p. 8. In its Endorsement upon judicial review, the Divisional Court did not disagree. In Canete, Vice Chair Simmons granted rights based upon
20 the surplus provisions of Article 24 of the collective agreement. There does not appear to be any basis for drawing the distinction suggested by counsel, and we decline to draw it.
We find that it would be least intrusive upon the exclusive right of management and, viewed from a pragmatic and functional perspective, in the interest of good labour relations to accord
the grievor the right to grieve the competition in question. The right to grieve a job competition involves a review of a fundamental aspect of the employment relationship. Counsel for
the grievor indicated that there were significant concerns regarding the way in which this competition was run. It seems to us that it would promote good labour relations to grant the
requested review and allow these concerns to be aired in a hearing. Accordingly, the grievor is granted the right to grieve the competition for Accommodation Officer 2.
21 The preliminary objections are dismissed. DATED at London, Ontario, this 7th day of November, 1991. R. J. Roberts Vice-Chairperson Union Member "I Dissent" (without written reason)
D. Clark Employer Member