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HomeMy WebLinkAbout1989-0001.Rohrer.90-10-05 ~?.., ONTARIO EMPL 0¥~'$ DE LA COURONNE \l CROWN EMP~.OYEE$ DE L'ONTARIO -~ GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT ' BOARD ' DER GRII::F.~ tEO OUN~DA$ STREET WEST, SU;TE 2100, TORONTO, ONTARIO. I80, RUE OUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), MSG 1Z8 FACStMILE/T~-L~COPJ~= : (4 ;6) 326-~39 0001/89 IN T.~_ M~TTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE B~RGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rohrer) Gri evo r · - and'- The Crown in Right of Ontario (Ministry of Correctional Services) Employer T. Wilson Vice-Chairperson J. Solberg Member F. T. Collict Member FOR THE D. wright GRI~VOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE M.B. Furanna & S. Currie EMPLOYER Staff Relations Officers Human Resources Secretariat .Management Board of Cabinet HEARING September .21, 1989 898783 DECISION The grievor grieves that he was terminated without just cause. In fact, his 'appointment was to the unclassified st$,ff and his contract was not renewed. So, in fact, the first issue in his grievance like that of the grievors in Beresford and MGS (GSB # 1429/86) and Bressette and }{OH (GSB # 1682/87) is whether he wasimproperly appointed to theunclaSsified staff. The facts however are not the same as in Beresfordor Bressette and therefore I set out the agreed statement of facts~ 1. The grievor,- Mark Rohrer, was first appointed to the · unclassified staff on a contract that ran from April 18 to July 17,.1987. His classification was Correctional Officer 1. 2. The grievor's contract was renewed several times with the last one beginning on July 18, 1988. That contract expired January 17, 1989. He was not appointed to any further contracts. 3. The grtevor was employed at the Stratford Jail. His hours varied weekly and were not necessarily scheduled in advance. The average hours during the entire period of employment were 26.7 hours per week. 4. With the exception of escort duties, the grievor's duties were essentiallythe same as classified employees. He did not have the Alymer Police College training required for classified correctional officers. 5. Subsequent to January 17, 1989 the unclassified complement at the Stratford Jail was not reduced. There were two other grievances of the grievor but they were withdrawn at the hearing and the Board proceeded to receive argument on the unjust discharge grievance. If the grievor was classified of course he c~n grieve unjust dismissal. The union argues that the grievor's purported appointment was improper i.e. outside of the scope of section 8 'of the Public Service Act and its regulations. It was only this part of the issue which was argued at this stage. Another issue reserved for a later, day is whether the grievor's contract was terminated prematurely. The Ministry appOinted the grievor to Group 1 (iv) of subsection 6 (1) of Regulation 881. This provision was issued pursuant to the Public Service Act. Section 6 provided as follow~, at the time: 6. - (1) The unclassified service consists' of employees who are employed under individual contracts in which the terms of employment are set out and divided · into z (a) Group l, consisting of employees who are employed, (1) on a project of a non-recurring kind, (ii)in a professional or other special capacity, (iii) o~ a temporary work assignment arranged by the commission 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, (v) during, their regular school, college or university vacation 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 ~osition, if filled by a civil servant, would be classified as a position requiring 36% hours of work per week. (B) 40 hours per week wherethe position, if filled by a civil servant, would be classified as a position requiring 40 hours of work per week, (ii) for fewer than eight consecutive weeks per year where the contract of the employee provides that the employee is to work either 36% hours per week or 40 hours per week; (c) Group 3 consisting of employees appointed on a seasopal basis for a period of at least eight ~onsecutive 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~ O. 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 tunclassified service shall supervise the work of persons employed in the classified service, except with the approval of the Commission. R.R.0. 1980, Reg. 881, s. 6 (3,4). (5) (6)--Revoked: O. 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.RJO. 1980, Reg. 881, s. 6(7). Both Beresford and Bressette dealt with-grievors who were purportedly appointed to Group 2. Ministry Counsel cited one case where this Board dealt with grievors purportedly appointed to Group 1; Carson and Ministrv of Health ~SB BS/$B. In that case there were four grievors who worked for a number of years as ambulance officers with the Ottawa-Carleto, n Regional Ambulance Service. They were employed in a series of fixed term contracts. At that time, the ambulance service employed between 18 and 24 unclassified officers, whom it referred to as part-time officers.. Because of absences from time to time of full-time ambulance officers for the reasons of vacations, illness, etc., this part-time officers' service was required. In 1982, however, the employer in the Carson case adopted a system, in which none of the part-timers worked set hours. Every Wednesday morning the part-timers would telephone in their availability for the following week and full-time staff indicated how much overtime they could give. On the WednesdaY afternoons the employer would call the part-timers to inform them of their hours of work for the following week. Part-timers also got additional hours later by agreeing to fill in on short notice for full-time officers who on short notice had indicated they would be off work. As a result, some of the part-timers could be put on a full-week of work. Mr. Springate commented at page 5: "When they did so, they were not really working on a part-time basis at all. The major difference between them and the regular full-time staff was that they were not working regularly scheduled shifts." With.respect to Carson, for the 32 weeks between March 1987 and January 1988, there was no pattern to the hours. During seven of the weeks he did not work at all. When he did work, it was for anywhere from 5 to 32% hours. For only 12 weeks did he work in excess of 14 hours. For Chouinard, over a 46 week period he did not work 4 weeks; he worked varying amounts of time during the remaining weeks, between 12 'to 45 hours, and he worked more than 14 hours per weekduring 30 weeks, although only more t/tan 24 hours for 16 weeks. Phillips and Lake generally worked a ~elatively full work week. Phillips, in a 44 week period worked 36 or more hours per week during 26 weeks; he worked fewer than 14 hours on 3 occasions and took 3 weeks vacation. Lake, in a 46 week period worked for at least 36 hours.~er week during 26 weeks and fewer than 14 hours for only 2 weeks and one week off on vacation. At pages 9 - 10, Mr. Springate concluded as follows: "Group 1 (iv) of ~he unclassified service was d~scribed in Regulation 881 as consisting of employees working fewer than 14 hours per week or fewer tha~ nine full days in four consecutive weeks, as well those working on an irregular or on-call basis. As indicated above, Mr. Carson worked less than 14 hours during 20 of 32 weeks during the period of March 1987 to January 1988. His work was irregular in the sense that the number of hours he worked varied considerably-from week %o week. In these circumstances we conclude that Mr. Carson generally worked on an irregular basis. It follows that Mr. Carson did come within one of the groups listed in Regulation 881 as comprising the unclassified service. "The situation with respect to Mr. Chouinard is somewhat more difficult. Mr. Chouinard generally worked in. excess of 14 hours per week, although less than24. The hours he worked were irregular not only in terms of when he worked but the number of hours worked each week. On balance, we are satisfied that the term "irregular" accurately describesMr. Choulnard's employment. It follows that he also came within Group 1 (iv) of the unclassified service. "This brings us to Mr. Phillips and Mr. Lake. The times that they worked were irregular in the sense that the two of them were not scheduled to work on a regular basis. Nevertheless, on an on-going basis both Mr. Phillips and Mr. Lake generally worked a full work week. They did so over five years. In these circumstances it cannot reasonably be said that they were employed on an irregular basis. Given this conclusio~, we are satisfied that neither Mr. Phillips nor Mr. Lake fit within one of the groups which according to Regulation 881 constituted the unclassified service." Counsel for the Ministry was very critical of the Carson decision and indeed invited %his panel not to follow it in a number of its conclusions.- We were informed that an application for judicial review of Carson has been filed in the Divisional Court. The~ thrust of the Ministry's attack on Carson is that the Board in Carson applied Group 2 analysis to Grou~ 1 employees. Essentially in finding ~hat Lake and Phillips worked "regularly" Vice-Chair Springate l~oked not at their appointment but what happened. But it happened 'week by week and not by virtue of the appointment which stipulated "as rsquired." It is only when the appointment does not fit the regulations that the Board may review the manner of appointment according to Ministry Counsel. By inviting this panel .to-refuse to follow Carso__n, Ministry Counsel also addressed the issue of the Board's decision in Blak~e v. Toronto Are__a Transit Operating Authoritv GSB 1276/87 in which the issue of other Board decisions was canvassed. In that case, Mr. Shime, Chairperson, stated that: [pS] "Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the. Grievance Settlement Board. The Act does not give one panel, the right to overrule another panel or to sit on appeal on' the decisions of an earlier panel. Also,. given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that a~other ~anel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load. "We are mindful, however, that there is no provision for appeal and there are limits to judicial review. While it is our view that the "manifest error" theory is too lax a standard, we recognize that there may be exceptional circ~ms%ances where an earlier decision of this board might be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case ' basis. The onus will be on the party seeking review to establish exceptional circumstances," Ms. Currie for the Ministry argued in our case that such an exceptional circumstance is present here in that she submits that the Springate panel misinterpreted the regulations: Groups 1 and 3 can work a full work week i.e., 36½ or 40 hours. Only Group 2 requires that the employee work on a recurring project and for fewer hours than a full work week. In Ms. Currie's submission, Mr. Sringate confused that issue and carried "the fewer than" provision of Group 2 over into Group. I. That in her submission is an interpretive error that is not binding upon a subsequent panel. Ms. Currie further argued that "appointment" is within s 18 -(1) of the C.E.C.B. Act and therefore if the Boaxd does review an appointment as did Mr. Mitchnick in Beresford, the determination must be correct, rather than merely reasonable. Mr. Wright arguing on behalf of the Union disagreed with Ms. Currie' s analysis. In his view, Beresford and Bressette both say that the position must be unclassified and if it is diagnosed as a classified position ~he Ministry cannot use s. 6 of the Public Service Act Regulations to reappoint unclassified persons over and over to that position. The mere fact that the "appointment" says that the grievor is Group 1 (a) (iv) does not m~e it so. Accordingly, Mr. Wright submits, there are no extraordinary circumstances Justifying a departure from the Blake admonition against the "manifestly wrong" rule. This Board interprets statutes in many situations as for example in release cases Leslie and MCSS (80/77) and Defoe and M.N.R. (1868/87 and also under section 9 of the Public Service Act McKay v. M.N.R. ( 265/80 ). Since Counsel presented their arguments, the Divisional Court has commented .adversely on the standard articulated in Blake: See D~uis and Ministry o__f Correctional Services (GSB ~1335/$6) Divisional Court File #94/89 (released May 8, 1990) in which, Reid J. writes: "We are in agreement with the manifest error policy. Because we are satisfied that was the basis on whichthe Board approached its task, we do not find it necessary to make any pronouncement 'on the appropriateness of the exceptional circumstance test, but I should not leave it without saying that we have some concern with it. "Ms. HcIntosh also submitted that the effect of the Board's adoption of the exceptional circumstance test led it to refrain from perforating its duty, a duty. which has be~n articulated by this Court, which was to address the issues before it and to make its own decision on these issues, not merely to adopt an earlier decision. We agree, but we are satisfied that the Board did not merely apply blindly, as it were, the Sears decision. It used the decision as a reference or guide to the case before it." I note that in the Dupuis case, the Board was only concerned with the interpretation of specific terms of the Collective Agreement namely, Articles 47.2and 54.4. Subsequently, on August 7, 1990 yet another panel of this Board in Carson/French and MCS (GSB582/89) held that it believed that the Blake rule had survived the comments of Mr. Justice Reid in Dupuis. It then proceeded itself to find no manifest error in the precedent before it namely, C$ipps and MCS (GSB #660/86). At this point, the reader would be justified in describing this whole area as somewhat obscure, to say the least. In a word,~virtually the whole 'panoply of current GSB jurisprudential controversy appears to have converged onto our case. But before taking on the task of giving answers to everyone's questions, I turn first to the factual realities of this case. Clearly, if the grievor works "on an irregular basis" within the meaning of section 6 {1) (a) (iv) of Regulation 881, then his appointment to the unclassified staff is proper and that great panoply of issues does not arise. In Carson, ~r. Springate found that 26 weeks of 36 hours each out of 44 weeks constituted regular employment. Of course, the Ministry does not accept that test at all. But to get his foot in the door, so to speak, the grievor must show that he meets the Carson tests assuming it is correct. Rohrer worked 36 or more hours per week for 32 weeks out of 90 and even if we deduct the last three weeks (which were notice weeks during which he received no work), it is only 32 out of 87. Interestingly, the work week is 40 hours not 36 in our case .and indeed in the Carson case also; furthermore, no one could explain at the hearing why Mr. Springate referred to 36 hours a week or to 24 hours a week (the latter sounds like an 0LRB standard). Some of Rohrer's weeks were split weeks in terms of scheduling and therefore .were not complete weeks. Rohrer worked 57 weeks out of the 90 at 24 hours or more. He worked 15 weeks at fewer than 14 hours. Mr. Wright summarized it as follows: I/6th fewer than 14 hours; 1/6th 14 to 23 hours; i/3rd 24-36 hours and 1/~rd greater than 36 hours per week. Mr. Wright argues that this was more regular than either Carson or Chouinard. He has thus put it at its best, but we are satisfied that it is still an irregular work record. Even a cursory look at the grievor's work schedule (Appendix A) shows a totally random work pattern. By any conceivable definition, it was irregular. The result is that this part of the union's argument does not succeed. It could not carry the day even if the correctness of the Carson decision were not in issue. That being so we leave to another day the issues of Blake, ~ and the Board's jurisdiction under Beresford, etc. and Carson itself. At the beginning of the case the Union asked us to remain seised of the issue of whether the grievor's contract ~was prematurely terminated. The Ministry agreed to our so remaining seised and accordingly we request the parties now to arrange another day for hearing of that issue through~ the Board's Registrar. We remain seised of the grievance as so indicated. DATED at Toronto this 5thday of October , 1990. T.H. Wilson, Vice-Chai~er$on "I DISSENT" (DissgDt attached) Janet Solberg Member w'.T. Collier Member Dissent from: 3anet $oiberg Union Nominee Reference: OPSEU {Rohrer) v. Ministry of Coorectional Services GSB 0001/89 I rely for my dissent entirely on the facts of this case. The grievor's duties were essentially the same as classified employees. Although he Nas not regularly scheduled in advance, he averaged 26.7 hours per week during a period of employment spanning nearly two years. For two-thirds of that time, he worked more than 24 hours a weekJ ~ The cut-off (used by Mr. Springate and probably based on a OLRB standard) of 24 hours seems to me a reasonable threshold. And thus, in my view, the grievor's hours constitute a de facto full- time schedule, even if the schedule was random in its pattern.