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HomeMy WebLinkAbout1989-0721.Singh & Mohamed.92-02-11 ONTARIO EMPLO¥~S DE LA COURONNE GNI~AN~E ~pMMISSION DE S~LEMENT NEGLEMENT BOARD DES GRIEFS 180 ~UN~AS s~E~WEST, SUI~ 2~, TORO~, o~AR~. ~G 1Z8 ~ ~O~TE~NE: ~a~6) 326-~398 72[/89, 730~89 ~D NE~OT~TION8 Be~o~e ~E~EEN 0PSEU (Singh/Mohamed) Grievor The Crown in Right of ontario (Minis=~ of Transpo~a=ion) Employer BEFO~: B. Kir~ood Vice-Chai~erson M. Lyons Me~er D. Halpe~ M~er FOR T~E D. Wright GRIEVOR' Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR TH~ B. Christen EMPLOYER Counsel Winkler,' Filion & Wakely Barristers & Solicitors HE~tRING May 21, 1991 P~g~ Z DECISION The grievors competed in twa separate job competitions and lost. Mr. $ingh competed for a Search Clerk position at the Ministry ' s Downsview office. This competition closed February 17, 1989. Ms. Mohamed for an Oversize and Overweight Pe~i~ Issuing Clerk posi:~on. This competition closed on February 17, !989. -T~e grieved tha= each comgeCiCion was hoc properly ~he Ministry did not consider ~heir qua ! i f ica~~ experience and seniority in a fair and impartial manner. Notices of hearing were given to parcies that may be affected. No third party appeared. Ministry's counsel argued that at the time of the compe=itions, the grievors were each employed under contract in the unclassified service. As members of the unclassified service, they had no right to grieve the job competitions. Union's counsel claimed tha~ the qrievors were improperly appointed To the unclassified service and that the Board ought to appoint them to the classified service, which would entitle them to grieve the job competitions. As employees in the unclassified service do not have the righ~ to grieve job competitions, the status of the grievors must first be resolved. Therefore the first i~sue is to ~etermine whether the grievors were properly classified. Although both grievors were holding the same position as the other at the expiration of their final contract, their employment histories differ, and accordinq!y each grievor's situation Will be dealt with separately. Page 3 Grieva~=e of Mr. Singh. Mr. Singh was employed in the Issuing and Servicing Section of Licence ~Administration. This department is responsible' for issuing licences to commercial vehicles. Prior to 1981 and 1982 commercial vehicle operators had to buy license plates for each~urisdiction' they entered. Under CAVR (Canada Agreement on Vehicle Registration) the provinces agreed to a fee structure for each fleet to pro-rate the fees in proportion to the kilometres travelled in each province. Prior to 1988 each carrier had to complete documents for each province and the information had to be entered manually into the system. ~n 1986 the department changed its system for monitoring and issuing licences, The Ministry introduced SAVR (Single Application for Vehicle Registration) to enable a fleet operator to pay his fees in one location. The system would then distribute the fees. This system was designed to retain oore information on the licensed vehicles in the syssem. After the information was entered into the new system, it would only need to be updated each year. The Ministry expected that SAVR to be operable by July 1988. In July 1988, the Ministry had problems with the system and installed an interim computerized system. Mr. Singh, who had been employed under two contracts to assist in the increased workload, began to work on SAVR in July, 1988. By December 1988, as only Ontario and Quebec had entered into the interprovincial agreement, Ontario had many new transactions to be entered. In addition, data from the old system still had to be inputted into the. new computerized system. The Ministry' employed thirteen unclassified employees to implement the system, in addition to the five classified employees who had been working in the department. By April ?~c 4 28~ 1989 there were no more unclassified employees working in this position. Mr. Singh was hired by the. -Ministry of Transportation in December of 1987. From December, 1987 to October 31, '1988, Mr. Singh worked under four successive contracts as a VRS/Pro Rate Clerk. His contract ending October 31, 1988 was not renewed. Mr. Singh was reemployed for the period from December 19, 1988 to March 31, 1988. This contract was renewed to April 28, 1989. The Union claimed that Mr. Mohamed worked as a Prorate Clerk in the same capacity as the classified staff, implementing SAVR-and reducing a pre-existing badklog. The Union's counsel argued that the work was ongoing in nature, and was not a project of a non-recurring kind as required by section 6 of Regulation 881 of the ~ubli¢ Sex--ice Act. Union's counsel further argued that as the Ministry deducted union dues from Mr. Singh's income the Ministry considered Mr. Singh to be working a continuous basis and not as a temporary employee as contemplated by section 6 of Regulation 881. Therefore Union's counsel argued that Mr. Mohamed was improperly classified in the unclassified service. Ministry's counsel claimed that Mr. Singh was working on a project of a non-recurring kind. His work was 50 effect the transition from the manual to computerized system, Ministry's counsel argued that the Union had never challenged Mr..Sing~'s appointment. He argued that the Union could not now rely on the deduction of union dues as supporting a continuous relationship as the Union had never brought the matter of the union dues to the MiRistry's attention. Therefore Ministry's counsel argued that Mr. Singh was properly appointed to the unclassified service under section 6 of Regulation 881 of the Public Service Act. Page Although both counsel made extensive arguments on remedy, it is unnecessary to consider those arguments until a finding is made on the threshold issue - wkether Mr. Singh was properly classified. We mu$~ first consider whether Mr. Singh was employed for the purposes set out in Regulation 881, section 6. The relevant time for the consideration of the status of the grievors is at the time of the grievance and at tke time of She competition. The rights of the classified and unclassified staff are founded.in the Public Service. Ac= R.S.O. 1980 c. 418, the Crown Employees Collective Bargaining Act R.S.O. 1980 c. 180, as amended and the parties' collective agreement. Regulation 881 of the Public Service Act, defines the unclassified service as consisting of employees on individual contracts whose work fit certain criteria. Pursuant to section 8 of the Public Service Act, persons are appointed to the unclassified service of the public service by a Minister or his designee. Regulation 881 states in part: 6.(1) The unclassified service consists of employees who are employed under individual contracts in which terms of employment are set out and is divided 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 capacity, (iii)on a temporary work assignment arranged by the commission in accordance with its program for providing temporary help,... Page Classified staff are members of the civil service appointed by the Civil Service Commission to the public service pursuant to section 6 of the Public Service &ct to a vacant position. The collective agreement requires posting and competitions for vacant positions. The first consideration is whether Mr. Singh was working on a project of a non-recurring kind. In our view the determination of whether a project is of a non-recurring basis must be looked upon by reviewing the facts of each situation. A test that has been used by the Grievance Settlement Board in OPSEU (Union grievance) and Ministry of Natural Resources, GSB %1480/89; 1481/89; 1482/89 (W. Kaplan) to determine whether the employee was working on a project of a non-recurring kind, was to consider whether the work was ongoing. We must then review the nature of the work, the length of time the work was being done, and whether it was continuous in nature. The facts here are different from the OPSEU (Union Grievance) (supra) in which Vice-Chairperson Kaplan stated'that there was significant evidence that the work was continuous in nature. In that case, the grievor filled the position of a classified employee who had held that position for four years before the grievor accepted the job. There was also evidence that the work continued. In December 1987, Mr. Singh was hired to handle the increased workload during the peak per~ods. When the interim computerized program was introduced in July 1988, his work changed to assist in establishing SAVR. His work remained, as his contract commencing July 1988 stated, to handle the increased workload. We find that there was a distinction between the implementation of SAVR, which is a one time occurrence, and Page 7 the ongoing application .of SAVR. Mr. Singh's work was to make the transition from the old to the new system, and in so doing, to make SAVR into an ongoing system. The project began with the introduction of SAVR, and ended when the Ministry was satisfied that there were no more problems with the system. As the Union recognized, Mr. Singh was employed to input the applications from the old system into the new system and to handle the backlog created by the many Quebec applications... His work was completed when the system was fully operational without problems. Although the purpose of the increased workload may have changed, it did not change the temporal nature of the work, or prevented it from being work on a project of a non-recurring kind. We do not find that the fact that the project took longer than expected and extended beyond any one contract detracts from this characterization. Mr. Singh's final contract was extended because there still were problems with the system. His contract ended with the eradication of those problems. Our jurisdiction is to determine if the grievors were properly appointed to the unclassified service. The criteria for proper appointment is set out in Regulation 881. It does not refer to the deduction of union dues. The deduction of union dues can only be a consideration. We do not find that in this case, the deduction of union dues detracts from the nature of the work that the grievors were performing. This case is unlike the o~ A~icu~tu:m mad Food G.S.B. 1101/88 (B.B.Fishe~) case where the employee grieved his status and sought inclusion in the bargaining unit. The Ministry agreed in minutes of settlement to deduct the dues. In that case it was a clear overt action by the Ministry to treat the unclassified employee in the same manner as the classified employee. The deduction of the dues also occurred at the time when the Page 8 project that the grievor had been working on was extended to become a continous job. Here, we had no evidence why the dues were deducted nor of the circumstances surrounding the deduction of the union dues. we do not find that the deduction of union fees determined that Mr. Singh was coasidered a long-term employee and was not an unclassified employee. However, it would seem that as Mr. singh was employed for the purpose of implementing SAVR that union dues may have been improperly deducted. We find that Mr. Singh was employed on a contract of a non-recurring basis, and Mr. Singh was properly appointed to the unclassified service at the time he applied for the competition. Although the application was open to unclassified employees, he had the right to compete but as an unclassified employee, he did not have the right to challenge the competition. Grievance of Ms. Mohamed MS. Mohamed was employed in the same department, but until her last contract, performed a different job from Mr. Singh. Ms. Mohamed was employed under a series of five contracts in the unclassified service to work as a Receptionist/Typist OAG 6 in the Prorate Office from November 11, 1987 to April 3, 1989. Ms. Mohamed held the position of Receptionist/ Typist from November 11, 1987 to January 15, 1989. During that period she replaced Olga Janiw as a Receptionist/Typist, OAG 6, while MS. Janiw took a leave of absence. Ms. Janiw never returned to the position. When Ms. Mohamed learned in December 1988 that the Ministry intended to eliminate the OAG 6 position, she signed a new contract for the position of Prorate Clerk at the OAG 8 level for the period of December 16, 1988 to March 31, 1989. This contract Page 9 was extended to April 28, 1989. She has not worked for the Ministry since April 28, 1989. Union's counsel claimed that Ms. Mohamed ought to be appointed to the classified service on the basis of her improper status as an unclassified employee when she was working as a Receptionist/Typist. Union's counsel claimed that as Ms. Mohamed replaced a classified employee in the position of Secretary/Typist for a period more than six months, the position ought to have been posted and competed for after six months, under the terms of the collective agreement. Union's counsel argued that had the position been posted, it was likely that Ms. Mohamed would have won the competition for that position. Therefore'Union's counsel argued that the Board ought to appoint Ms. Mohamed to the classified service. Ministry's counsel argued that Ms. Mohamed never grieved the vacancy of the Receptionist/Typist position and cannot now be allowed to raise this issue in order that she may grieve the job competition for the Oversize and Overweight Permit Issuing Clerk position. Minstry's counsel argued that at the time of the competition, Ms. Mohamed was clearly a public servant. Although Ms. Mohamed held the Receptionist/Typist position for more than six months on successive contracts, she did not grieve that the position was vacant pursuant to article 4 of the collective agreement and she ought to have the right to compete for the position, after the six month period We do not now have jurisdiction to respond to the posting of the Receptionist/Typist position. The parties agreed in article 27.2.1 to require an employee to bring a complaint to the supervisor's a~tention within twenty days of becoming aware of a complaint.. Instead of Ms. Mohamed Page 10 ' grieving her position, she changed her contract of employment \ to work in a different position and at a different level. ~_~ At the time of the grievance Ms. Mohamed held the position as Prorate Clerk OAG 8. Ms. Mohamed obtained the job by signing a contract in the unclassified service. Ms. Mohamed did not compete for this position. There was no a!legation nor evidence that there was a vacant OAG 8 position in the classified service for which she ought to have had the opportunity to compete. Nor was there any indication that Ms. Mohamed would have won a competition had this position been posted. Ms. Mohamed knew that she was signing the contract for the OAG 8 position for a limited time. She took the OAG 8 position on the hope that the OAG 8 position would last longer than the OAG 6 position. The work that Ms. Mohamed was performing at the time of the competition and the grievance, was temporary as she was filling in for another employee. As with Mr. Singh, at the time of the competition and at the time of the grievance, Ms. Mohamed was working to complete the implementation of SAVR and was working on a project of a non- recurring kind. Therefore we have no basis to find that she ought to have held the position as a classified employee. Ms. Mohamed was employed within the parameters set out in Regulation 881, sections 6(1) (a) (i) and 6(1) (a) (iii) of the Public ~ervice Act and was properly appointed to the unclassified service. As we find that both grievors were properly appointed to the unclassified service, the grievances are dismissed and it is unnecessary to deal with the extensive 'Pag~ 11 arguments of counsel on remedy. Dated at Toronto, this llday ofFebruary' 1992. B. A. Kirkwood, Vice-Chairperson M. Lyons, Union Member D. Halpert yet Member