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HomeMy WebLinkAbout1984-0614.Humeniuk.85-12-056~14/84 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Mr. Mirko Humeniuk) Grievor - and'- The Crown in Right of Ontario (Ministry of Correctional Services) Employer I. C. Springate Chairman T. Traves Member D. B. Middleton Member For the Grievor: M. Ball Counsel Cornish & Associates Barristers & Soli,citors For the Employer: P. Radley Personnel Branch Ministry of Correctional,Services Hearing: October 12, 1984 November 19, 1984 I , The grievor, Mr. Mirko Humeniuk, was employed as an "unclassified" contract employee with the Ministry of Correctional Services at the Toronto Jail. His contract was not renewed. The griever and the union allege that the non-renewal of the grievor's contract involved an unjust dismissal. At the hearing into this matter, counsel for, the union also contended that if the griever was not, in fact, "dismissed" but KatheK “terminated”, his termination was the result of an unreasonable e'xercise oE the employer's right to terminate contract employees. By way of a remedy, the union and the grievor submit that the employer should be directed to enter into a new contract with the grievor and compensate him for the period that he has not been working at the jail. ., . The grievor commenced employment at the Toronto Jail in November 1982 on a Eour-month contract. The contract stipulated that the grievor'.s normal hours of work were not to exceed 24 hours per week. At the expiry oE the contract, the grievor and the Ministry entered into another contract for three months which provided that his normal hours of work would be 40 hours per week.. The griever's work w'eek was dropped back to 24 hours in a contract which ran from June to September oE'l983. Th.e grievor was then employed for 40 hours per week pursuant to four separate contracts. .The last of these contracts expired on, June 30, 1984. - 2 - All of the contracts entered into by the grievor stipulated that his services "may be terminated on one week's notice by either party." Article.3.11 of the collective agreement between the employer and the union which is set out below, provides that contract staff can be terminated on one week's notice: "Smployment (of unclassified staff) may be terminated by the employer at any time with one week's notice, or pay in lieu thereoE". The collective agreement is silent on the matter of contract renewals. Mr. L. DiPalma, the Senior Assistant Superintendent at the Toronto Jail , testified that contract employees are utilized at the jail primarily to fill in for regular "classified" correctional ofEicers who are unable to attend work. Mr. DiPalma indicated that in early 1984, / management,reviewed its manpower requirements and decided to hire a number of additional classified correctional officers and to reduce the number of contract employees. So as to put the grievor on notice that hisemployment might not be continued, on January 6, 1984, Mr. DiPalma Eorwarded to him a letter, the text OP which is set out below. All other contract employees at the jail received a similar letter: .’ -3- Dear Mr. Humeniuk: We are currently undertaking a major revision of our staffing patterns in order to better meet the operational requirements of the institution. As part of this revision, all correctional officer contract positions are being reviewed. The review could result in: (a) the termination of your contract, (b) the adjustment of your contract to conform to complement requirements. You will of course be advised in advance of any adjustments being made to your contract. If you have any further ouestions, please do not hesitate to contact me. On April 18; 1984 Mr. N. McKerrell, the Deputy Superintendent of the jail, sent the. following, more detailed letter, to all contract employees at the jail, including the grievor: Employment Contracts In January 1984, Mr. L. DiPalma, Senior Assistant Superintendent, wrote to each unclassified Correct ional Officer to advise that we were, of necessity, conducting a review of all of our employment contracts. This review has been completed, and we wish to advise edch unclassified Correctional Officer of our situation and the impact it will have upon .our employment contracts. j 1. The present group of 40 hour unclassified contracts is totally used to "backfill" for lonq term - 4 - 2. 3. 4. 5. 6. temporary sickness of classified officers or for a few vacancies in the General Duty Roster. As the various "reasons" for 40 hour contracts cease to exist, employment contracts will have to be terminated as required. While a very few classified correctional vacancies MAY open .in the next few weeks or mzhs, the number will probably be fewer than a half-dozen in total. In most cases, any vacancies which we do have will be filled by a formal internal competition. Appropriate notices will be posted for the benefit of interested staff prior to any competition being held. Any unclassified officer is eligible ,to apply for such a competition. Any existing, officer who may be hoping to get a 24 hour contract in the Fall will have to guarantee being available for a full 24 hours per week -- not just' restricted to weekends -- in addition to other performances considerations. All existing 24 hour contracts al be reviewed before the end of August 1984. Some terminations are quite possible. The uncertainty which surrounds, our staffing pattern and reouirements is as disconcerting to.us as it, undoubtedly, is to most unclassified staff. Nevertheless, it is our hope that our unclassified employment situation will have stabilized within a six month period. However, in the meantime, all unclassified Correctional Officers should consicier their status very fluid and subject to change, with proper notice. - 5 - Any questions related to the speciEics of this memorandum should be directed to Mr. L. Dipalma, Senior Assistant Suoerintendent. Other staEE will not be in a position to discuss this matter in any authoritative manner. In June of 1984 management at the jail.decided not to renew the contracts oE two employees, one of whom was the grievor. Mr. DiPalma testiEied that the decision was made not to renew the grievor's contract, as opposed to some other contract employee, because "he was not as suitable as the other casuals." Mr. DiPalma stated that he based this conclusion on two Eactors. One was a number of occurrence reports relating to incidents where the grievor had performed incorrect prisoner counts, an incorrect spoon count (of concern in that spoons have been known to be sharpened and used as -weapons) and an improper log entry. when these incidents occurred, the grievor was c.ounselled, but not disciplined. Mr. DiPalma testified that the second factor he considered was the grievor's performance in an interview held in connection with an aoplication by the grievor to e.nter the classified public service. In consequence oE management'sdecision to increase the number of regular classiEied correctional officers at the jail, at least two comoetitions were held in which unclasscfied contract stafE were given the opportunity to apply for permanent positions within the classiEied service. The grievor applied with respect~to one of the competitions. i -6- Mr. DiPalma interviewed the grievor in connection with his application, and concluded that the griever did not display the knowledge necessary to function effectively as a correctional officer. The grievor's last contract was due to expire on June 30, 1984. On June 22, 1984, Mr. N. McKerKell, who at the same time.was the jail's Acting Superintendent, wrote a letter to the grievor, the relevant parts of which read as follows: As you will Kecall, you were- advised in January, 1984 that we were going to conduct a major revision of our stafEing patterns and also review all Correctional Officer contract positions, in Order to better meet the operational requirements of the institution. I must therefore advise you, that your contract which expires on June 30, 1984 will not be'renewed, and your services will be terminated with the Toronto Jail as of June 22, 1984 (at the end of the shift). You will receive payment fOK any scheduled shifts up to and including June 30, 198p, in lieu of notice. MT. DiPalma testified that in accordance with general practice, the grievor was plaid 'EoK, but not required to Work, the last week of his contract. The purpose of this general practice is to avoid the possibility that an employee whose contract is not being renewed might cause problems at the jail. - - 7 - Subsequent to the non-renewal of the arievor's last contract, there were certain staffing changes.' Union counsel contends that these changes demonstrate bad faith on the part of management in connection with the non-renewal of the griever's contract. In particular, the union relies on the fact that extra hours were given to three other contract staff, namely Irwin Igra, Quinn Johnston, and David Finnessy. The evidence indicates that M~..Igra Andy MK. Johnston were students who generally worked fOK 24 hours per week during the school year, but whose hours were raised to 40 hours per week during the summer, including the summer of 1984. Mr. Finnessy was a twenty-four hour contract employee whose hours were raised to 4n hOUKS per week in April of 1984, that is prior to the non-renewal of the griever's contract. MK. Finnessy subseauently became a member of the regular classified staff. According to MK. DiPalma's uncontradicted testimony, the increase in the number of hours worked by these three contract employees during the summer of 1984 was to compensate for the absence of a number of regular staff over the summer. Given this evidence, it is OUK view that the changes to the hours of other staff fall far short of establishing bad faith on the part of the employer. Counsel foK the union contends that the employer wasestopped from not renewing the qrievor's contract because of an onooing practice of retainins contract .~~ - - 8 - employees. This practice, contends counsel, lulled ,the union.into a belief that the employer would not enforce its strict rights with respect to contract employees. The evidence beforeus does not support this claim. To the contrary, the evidence indicates that, prior to the events in question, the contracts of a number of employees at the Toronto Jail were not renewed, and some contract employees had their contracts terminated prior to their scheduled expiry dates as permitted by the terms of the contracts and the collective agreement. As already noted,, the union contends that the grievor was either dismissed without just cause.or the Ministry terminated him in a manner which involved an unreasonable exercise of its power to terminate. If what occurred was a dismissal, then, pursuant to section 17(2) OF the Crown Employees Collective Bargaining Act, just cause must have existed to justify the dismissal. In our view,' however, what occurred was not a dismissal, as that termis used in the Crown Employees Collective Bargaining Act, but rather the non-reappointment of a contract employee. Sections 8 and 9 of the Public Service Act, which are set out below, provide both for the appointment of unclassified contract staEE, and Eor the possibility that a contract employee may not be reaopointed. When a contract employee is not reappointed, he ceases to be a public servant. ~.... :.. .I,, : :I?+‘. - 9 - 8 .-(1) k minister or any public servant who is designated in w.ritinc for the purpose by him may appoint for a period of not more than one year on the first appointment and for any period on any 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. 9. 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. Our conclusion that an employee whose contract is not renewed has not thereby been “dismissed” is supported by the Board's jurisprudence. In Johnson and Szpakcwski, File 72/76 (Swan), which involved facts similar to those now before us, the Board commented: This case is very similar to Re Bond and Ministry of Natural - Resources,' 173/78 (Adams), a case heard just one week prior to the present. In that decision another. panel of the Board found: It is our opinion that the grievor's employment ceased by operation of section 9 of the Public Service Act and by virtue of this section and .the terms of his appointment, it cannot be said that he was “dismissed” within the meaning of s. 17(Z) of the Crown Emplovees Collective Bargainins Act. - - 10 - The main argument advanced by the Union is that an appointment for a specified term under s.8 of the,Public Service Act is contrary to the spirit of the applicable collective agreement, and that, at least after the first appointment (which is limited to terms of one year or less) the Employer should be found to have agreed to make further appointments subject only to dismissal for just cause or termination otherwise in accordance with the collective agreement. TO expand slightly on the Bond decision, it is our view that, for the Union successfullv to alter the impact of ss. 8 and 9 of-the Public Service Act, - it would need to negotiate express provisions in the collective agreement requiring such appointments to be entirely on the same basis as appointments to the classified service, Even. in private sector labour relations, agreements are generally considered to be negotiated in the context of an ordered statutory framework. Here, the Public Service Act is part of that framework,. - Ministers only have authority to appoint public servants to the extent that they are authorized to do so by the Legislature; all other purported appointments to the public service are without statutory sanction. If the Union wishes to influence the way in which a Minister (or the Employer in general) will administer his or her (or its) statutory authority, the Union must do so through collective bargaining, if at all. In the result, we find that the action complained of is not a dismissal, and is not subject to a test of just cause. The grievances are therefore denied. f - - 11 - The Ministry's failure to renew the grieVOr’S contract was not a "dismissal." Further, in our view, it cannot reasonably be viewed as a "termination." The word "termination" is used in both the collective agreement and. the griever's contracts to refer to situations where a contract is' terminated prior to its stated expiry date. This was not the case here. While ?Ir. McKerrell in his letter to the grievor of June 22, 1984 did make'reEerence to his services being "terminated" as of that date,.a reading of the entire letter indicates that the phrase in question was meant only to advise the grievor that he was not to report for work after June 22nd; although he would continue to be paid to the end oE his contract on June 30, 1984. In that the grievor was not terminated within the meaning of ' his contract and the collective agreement, it cannot reasonably be said that there was any unreasonable exercise of the employer's power to terminate a contract employee. Further, as already indicated, the evidence before us d,oes not establish any bad faith on the part oE the employer.when it made its decision not to renew the grievor's contract. There is nothing in the collective agreement or in the applicable statutes which guarantees contract employees the right to be reappointed, or which in any way restricts.management when it makes ,a decision as to which I ? * 3” - 12 - contract employees are not to be renewed. Accordingly, the non-renewal OE the grievor's contract, which. was not tainted by bad faith on the part of the employer, did not involve a breach of either the collective'agreement or a relevant statute. The grievance is accordingly hereby dismissed., Dated at Toronto this 5th day of December 1985. I. C. Springate, Chairman T. Traves, Member D. B. Middleton, Member