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HomeMy WebLinkAbout1990-0428.Porter.91-11-12 " : .... '; ,- ONTARIO EMPLOYÈS DE LA COURONNE ,,---- CROWN EMPLOYEES DEL 'ONTARIO . 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT\ BOARD DES GRIEFS I 1110 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONl:¡TÉLÉPHONE: (4 J 6) :;26- J 388 180, RUE DUNDAS OuEST, BUREAU 2100, TORONTO (ONTAmO), MSC¡ 1Z8 FACSIMILEIT£:LÉCOPIE: (416) 326-1396 '. 428/90, .1640/90, 1641/90 IN THE HATTER OF AN ARBITRATION , Under , THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ~ : Before - THE GRIEVANCE SETTLEMENT BOARD BETWEEl1 OPSEU (Porter) Grievor - and - The Crown in Right of Ontario. . (Ministry of Skills Development) Employer ¡ BEFORE: G. Brandt Vice-Chairperson E. Seymour Member D. Clark Member FOR THE M. Doyle i GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & SOlicitors FOR THE C. Peterson EMPLOYER Counsel winkler, Filion & Wakely . Barristers & Solicitors \ '" I FOR THE A. . Bryant ¡ ¡ THIRD PARTY ! ¡ HEARING August 7, 1991 1 i ..- , .1 I .. ' . ~ 1 2 DECISION This case raises once again the question of the status of an employee, who has been appointed to the unclassified service, to grieve action taken by the employer. The grievor, Susan Porter, was employed in the Apprenticeship Branch of the Ministry of Skills Development and worked at Durham College. She was initially hired as a GO Temp in July of 1986. On October 1, 1986 she was appointed to a contract position in the , 1 unclassified service as a Clerical Typist. That initial contract expired on December 31, 1986'. Her contract was successively renewed 12 more times (for periods generally of 3 months at a time but also ¡ including periods of one month, six months, and in 1988, 12 months.) Her last contract expired on August 31, 1990 and was not renewed. - There are three grievances which have been consolidated for hearing by this panel of the Board. First, there is a "status" grievance (dated April 10, 1990) alleging that the grievor has been "improperly classified in the unclassified service" and which seeks to be reclassified to the classífied service retroactive to her date of hire. Secondly, there is a "dismissal II grievance (dated September 6, 1990) alleging Ildismissal" without just cause and requesting reinstatement to her fortner classification retroactive to August 31, 1990. Thirdly, there is a "competition" grievance (September 17, 1990) protesting the refusal of the employer to award the grievor a posted position for which she had applied and for which a competition was conducted. . '. .... ~ 3 . The law is clear that an employee appointed to the unclassified service may not grieve the non-renewal of the contract as a lldismissal" unless it can be established that the "non-renewallt is, in essence, a disguised termination for disciplinary reasons. (SkalesKy 429/81). It is equally well established that the 'provisions of the collective agreement entitling employees to grieve a jOb posting are not available to employees in the unclassified service. (Daniels 1544/87) The Board has, ho~ever, in a line of cases beginning with Beresford '(1429/86), held that the propriety of an appointment to the unclassified service may be challenged by inquiring into the nature of the appointment and -the duties performed by the inèumbent in order to determine wheth.er the appointment conforms to the requirements set out in the Public. Service Act and the Regulations enacted thereunder. The relevant provisions of the Public service Act are as follows: 8 (1) A minister...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. 9. A person who is appointed to a position in the public service ceases to be a public servant at the expiration of that period. At the time that Beresford was decided section 6 of Regulation 881 under the Public Service Act defined the unclassified service as "~onsìsting of employees who are employed under individual contracts in which the terms of employment are set out" and which are divided into three groups of employèes. Broadly speaking these groups comprised seasonal employees or employees employed generally on· temporary projects. I . I ' ; 4 In Beresford the Board commented OT'! these provisions in the following terms: Section 6 of Regulation 881... provides that "the unclassified service consists of" contract employees and "is divided into" 3 groups, which are set out in detail in the remainder of the section. That language is cast in a way that is '''exhaustive" (as opposed to "inclusivell), and appears to provide....a definition of the kind of situation contemplated by inclusion of a power of appointment to the unclassified service by way of section 8 of the Act. Those 3 IIGroups" set out in the regulation, on the other hand, cover a very wide range of situations, and Obviously create a broad degree of discretion in a minister whem considering a fixed-term appointment to the· unclassified service, rather than an open-ended appointment to the classified. In fact, the bulk of the appointments to the unclassified staff would in all likelihood "speak for themselves", in the sense that they would, by their very nature, fall within the terms of section 6. It may well be that in such cases no further evidence from the employer will be needed. It is only, in other words, where the evidence pertaining to the position suggests on its face that the position fits into none of the categories of employment set out in section 6 of the regulations that an onus will arise upon the employer to pre~ent evidence of its own which would demonstrate that the appointments did·in fact fall within qne of the specified categories. The Board went on to find on the facts of the case before it that since the appointment did not fall into one of the categories set òut in the regulation it was It improper". However, rather than direct that the grievor be appointed to the classified service, the Board issued a declaration and left it to the parties to work out a satisfactory remedy. The Beresford analysis has been repeatedly followed by the Board. In Milley (1972/87) the Board was asked to reconsider its decision in Beresford but deClined to do so. An application for judicial review of both Beresford and Millev was dismissed by the Divisional Court and leave to appeal to the Court of Appeal was denied. Although some -' ; " 5 contradictory jurisprudence emerged briefly . in Hicks (2563/87) , that case has subsequently been discredited. (See, for example, Bressette (1682/87) . ) However, while the union has been successful in obtaining declaratory relief where it is found that an appointment to the unclassified service was improper, it has not, until very recently, been successful in persuading the Board to order that a successful grievor be appointed to the classified service. (See W~gner (351/89, 352/89); Kozak 977/88); Branch 314/89}. ~~ Some uncertainty over the question of remedy has arisen as a result of certain remarks of the Divisional court concerning the question of the Board's authority to order the àppointment of a successful grievor to the classified service. It may be recalled that in both Beresford and in Millev,the Board had left the question of remedy to the parties. When those efforts failed the parties returned to the Board and a panel chaired by Mr. Samuels rUled that the Board lacked the authority to order an appointment to the classified service. In this respect the Board· was following its own practice established in Wagner. However, on judicial review of the Samuels award, the Divisional Court, while dismissing the application, commented obite~ that it was "incorrectlt to say that the Board dic:i not have the authority to order an appointment to the classified service; that "the Board does have the ultimate remedial power to appoint an employee to the classified service - I . 6 if it considers the remedy appropriate for a particular employee." In Canete (2192/90 ) the Board had an opportunity to consider the remedy issue in the light of the remarks of the Divisional Court in Beresford/Millev. The Board reviewed the jurisprudence which had consistently held that it lacked authority to order an appointment to the classified service· (Wagner. Beresford/Milley) but stated that, in the light of the remarks of the Divisional Court in ~eresford/Milley, any earlier stateménts of the Board to the effect that it lacks the remedial authority to appoint an emRloyee to the classified service must be deemed now to be bad law. Accordingly~ the Board directed that the grievor be placed on the surplus list in the classified service. In the instant matter· the employer takes the position that the grievor had no status to grieve either the "competition" grievance or the "dismissal" grievance as she was not a member of the classified service. The union argues that the appointment of the grievor to the classified service was improper, having regard to the reasoning in Beresford and asks that the Board issue an order appointing her to the classified service, thereby conferring upon her the requisite status to grieve the job posting and the dismissal. The Board ruled that it would determine the status grievance first, before hearing evidence and argument respecting the other two grievances. Obviously, if the status grievance fails the other two grievances must also be dismissed. As an employee found to be properly 7 appointed to the unclassified service the grievor would have no status to grieve the job posting. Further, as there is no allegation that the non-renewal of her contract is a disguised dismis$al for culpable reasons, the necessary foundation for the arbitrability of the dismissal grievance has not been established. In addition to the preliminary objection based on status the r employer also submits the status grievance is un<t;imely. It is appropriate to deal with that issue first since, if this argument succeeps, there is no need to address the question of status. It is argued that, insofar as the status grievance alleges an improper appointment to the unclassified· service since July 16, 1986, its filing in April of 1990, nearly 4 years after the initial appointment is significantly beyond the mandatory time limits set out under the collective agreement. , I We do not consider the grievance to be untimely. , As noted, the grievor was successively re-appointed to the unclassified service by a number of separate contr~cts each of which, by operation of'section 9 of the Public Service Act, terminated upon the expiry of the fixed term of the contract. In our view the grievor may grieve the propri~ty of her appointment on each and every occasion that she was been appointed. Consequently, the April 10, 1990 status grievance is a timely grievance flowing from her April 2, 1~90 appointment to the unclassified service. ¡ 8 , ". , We therefore dismiss the preliminary objection relating to timeliness and turn to the principal issue of substance that has been brought before the Bo~rd. This case is unique in that, unlike Beresford and its progeny, it is agreed that the position occupied by the grievor was not a temporary position falling within one of the three categories of employees so . characterized by s. 6 of Regulation 881. Thus, it is unnecessary in this case to conduct the kind of· inquiry directed by Beresford to ¡, determine whether the appointment falls within one of the required categories. The·employer concedes in t~is case that it does not. The position in question was in existence at the time that the . grievor was appointed to it and, throughout her tenure in the position, she continued to serve the ongoing needs of apprentices at Durham College. To all intents and purposes the terms and conditions of her employment were such that her position could not be distinguished from a position in the classified service. Her hours of work and assignments received were similar to those of a classified civil servant. Thus, the foundation appears to have been established for the application of Beresford. However, the important issue before the Board is whether, as a result of a.Reg. 129/89, an amendment to s. 6 of Regulation 881, most of if not all of the restrictions placed by Beresford on the power to - -' I ; 9 appoint to the unclassified service have been removed. o. Reg 129/89 adds a fourth group of employees to the classes of employees that may be appointed pursuant to s. a of the Public Service Act. That group is defined as consisting of employees: i) who are appointed pursuant to section 8 of the Act¡ whether or not the duties performed by them are, or are similar to duties performed by civil servants, and ii) who are not employees that belong to Group 1, 2 or 3. . In summary, the employer argues that the April 2, 1990 re-appointment of· , the grievor fell clearly within Group 4 ~nd that consequently the Beresford reasoning does not apply. The union does not take issue with the ~laim that the grievor was an employee falling with Group 4. It is argued¡ howèver, that insofar ,as o. Reg 129/89 is inconsistent with s. 8 of the Public Service Act, it should be read down so as to remove that inconsistency. It is appropriate here to set out the respective submissions of the parties on this issue in greater detail. Counsel for the Employer concedes that, according to BeresfOrd, the power of appointment to the unclassified service set out in 5.8 of the Public Service Act is restricted. First, it holds that for an appointment to be proper "there must be something about the job in its initial conception Which distinguishes it from the normal llpermanent" position in the classified service~ Secondly, and more importantly in the view of the Board in Beresford, the power of appointment is limited -' . . 10 by the terms and scope of the three groups of employees identified in section 6 of Regulation 881. Beresford describes these groups as providing an "exhaustive.... definition of the kind of situation contemplated by inclusion of·a power of appointment to the unclassified service. . " (p. 15) Hence,. in order for the appointment to be valid it must fall within one of the three groups or categories of employees. . It is argued that the 'effect of a.Reg 129/89 is· simply to add a fourth category of employees that may be appointed to the unclassified service. Thus, whereas at the time of Beresford it waf> necessary to establish that the position was temporary, or involved work of a -seasonal character or work of a non-recurring character, that is no ,-, longer required. O.Reg 129/89 on its face expressly states that it is irrelevant that the duties performed may be similar to those performed by civil servants (i.e. members of the classified service) . Further, to qualify for inclusion in Group 4, an employee must not belong to Groups 1 , 2, or :3. Thus, the concerns which led the Board in Beresford to allow grievance, " the (viz, the preservation of some distinction between unclassified jobs and "permanent" classified jobs, which distinction was reflected in the identification in Regulation 881 of certain classes of "temporary" position), are, it is submitted, no longer present. The rationale of Beresford simply requires that the appointment be to one of the groups established under Regulation 881. As that Regulation has been broadened to include employees whose jobs are both permanent (i.e. as not falling within Groups 1,2, or 3) and possibly similar to those of classified civil 'servants, the Beresford principle is not offended by ,) , 11 the kind of appointment which occurred in this case. Indeed counsel suggested that a.Reg 129/89 represented a deliberate attempt to rectify the anomaly found by the panel in Beresforg, viz, that unless an appointment could be found to fall wi thin one of the , three categories then existing it must be considered to be improper. The inclusion of a comprehensive "catch åll" group removed that anomaly and permitted compliance with Beresford so long as the appointment fit the other requirements of Regulation 881. In our opinion there can be little doubt that, assuming for the moment that a.Reg 129/89 does not conflict with s. 8 of the Public Service Act, the appointment ot the grievor to the unclassified service was a valid one. Regulation 6(1) as amended requires that an employee of the unclassified service be "employed [under an individual contract] in which the terms of employment are' set out" and that she fall into one of the identified groups. The grievor was appointed by a succession of individual contracts each of which identified her job title and equivalent classification, her hours of work and her salary. Each contract was signed by the parties and specified to be for a fixed term. Further, it is agreed that she does not fall within Groups 1,2 or 3. Hence, her appointment is valid. We turn to the submission of the union that a.Reg 129/89 should be read down so as not to conflict with s. 8 of the Public Service Act. . . - 12 The argument is that 5.8 of the Public Service Act contemplates a "temporary" unclassified service that is t6 be distinguished from the "permanent" classified service. Consequently, any regulation which purports to confer a power to make appointments to the unclassified service that are, in reality, bòth permanent and undifferentiated in 'kind from appointments to the classified service, is inconsistent with the underlying legislative scheme set down in the statute. Thus, in the submission of the union it should be interpreted in such a fashion as to eliminate any conflict. ~. counsel sought support for this position from Beresford, Milley, Bressette~ and from the Act itself. In Beresforq the Board stated: [Section 8(1)] is in fact curiously worded, to the extent to the extent that it does raise the question why the Legislature would limit the term of the initial appointment to one year, but then go on to permit any extension of that term on an indefinite basis. That wording would, therefore, tend to support Mr. Ryder's argument that, in order to fall within the contemplation of the Legislature as to what constitutes a "properll appointment on a limited-term basis, there. must be something about the job in its initial conception which distinguishes it from the normal "permanent" position in the classified service.... The Board went on to say that s. 6 of Regulation 881 provided an exhaustive definition of the kind of situation contemplated by s.S of the Public Service Act. Similarly, in Milley (p.1l) the Board stated that s.. 6 of Regulation 881 "served to inform as to the intent and , purpose of section 8 of the Act..." In Bressette (1682/87) the Board, again quoting from the passage . , 13 from Beresford set out above, stated that: ...the limitation therefore appears to find its source in section 6 of the Public Service Act itself. The Regulation appears only to flesh out the ~erms of that limited power. There does not seem to be any open-ended residue of power of appointment ' in section 6. The , existing regulation at the time of Beresford appears to exhaus-t the general scope of the appointment power. Thus, it is argued by the union that, insofar as O.Reg 129/89 purports to expand the power of appointment in section ß in a way which permits appointments which are permanent and indistinguishable from appointments to the class,ified service,' it removes the limitation which ~' . Bressette found to be."within section 8 itself." It confers, contrary to Bressette, an lIopenended residue of power of appointment.1I " Acc,ordingly, it is submitted that the provision should be read down and construed in such a fashion'as to limit its application to 'the kinds' of situation contemplated by the s. 8 of the' Public Service Act. I We are unable to agree with the SUbmissions of the union. , ! It is well recognized that delegated legislation must be interpreted in the light of the enabling statute. (See, for example, & Slater Steel Industries Ltd. [1971] (Ont. cty. ct. ) . v 1 Q.R. 760 However, . the Board must also refrain from giving the language of the , regulation a construction which it cannot reasonably bear. In that regard we are unable to see how a.Reg 129/89 can be construed in the / . manner suggested by the union. Specifically, Group ,4 is to consist, I inter alia, ,of employees who do not belong to any of the first three \ ! I ¡ J . ; ~ 14 groups. Since the first three groups define a kind of relationship which is temporary in nature it appears evident that a.Reg 129/89 was : intended to comprise employment relationships which are not temporary in nature. To construe a.Reg 129/89 in the manner suggested by the union i would be essentially to ignore it. In the face of these interpretive difficulties the only alternative is to find a.Reg 129/89 to be ultra vires tne Public Service Act. Difficult questions may arise as to the'scope of our authority to declare a regulation to be ultra vires. However, it is unnecessary to express any opinion concerning that,matter since, in our view, there is I no conflict between a.Reg 129/89 and section 8 of the Public Service I Act. Accordingly, it should be given its full effect. Although it is true that the Board in Beresford spoke of a . distinction between the job in its initial conception and the "permanent" classified position in the civil service, it appears that these comments did not form the principal reason for its decision. Immediately following the passage in question the Board goes on to discuss the "more important II question as to the significance to be attached to the wording of the 3 groups of employees in the regulation and concludes that, for an appointment to be proper, it must fall within one of the identified groups. The question is whether or not, of necessity, the groups identified must reflect an appointment of a temporary character. We do I .J : . ~ ; 15 " not believe that to be the case. section 8 itself, while it contemplates an initial appointment for no longer than one year, is completely open ended in terms of any subsequent appointments. Such appointments may be made for any period on any subsequent appointment. Thus, there is no limit to either the number of appointments or to the duration of each appointment. It is impossible to read into section 8 a requirement that appointments be for jobs which are limited in duration. ; It happens that, at the time that the Board decided Beresford, section 6 of Regulation 881 defined the appointing power in t~ose terms. However, there is nothing in Beresford or in any of the other cases in its wake that state or suggest that the Lieutenant-Governor in Council could not expand upon the groups identified in the 'Regulation. This is the first case in which that question has been raised. We find some support for this conclusion in Bressette. In the passage referred to above, and upon which the union relies, the Board speaks of the "existing regulation at the time of Beresford" as appearing to exhaust the general scope of the appointment power. We agree. However, it does not follow from this that a change in the regulation cannot expand the "general scope of the appointment powern. In our opinion that is precisely what has happened with the enactment of a.Reg 129/89. The cabinet in its wisdom has chosen to deal with the -"- . ; - , 16 . . " kind of problem presented by Beresford by broadening the basis upon which appointments to the unclassified service could be made. Insofar as section 8 of the Public service Act does not, on its face, purport to limit such appointments in the manner suggested by the union, we see no conflict between it and O.Reg 129/89. Accordingly, we are prepared to give it full effect and declare that ,the appointment of the grievor to the unclassi-fied service is tlproper.1f £í Counsel for the union also argued that, apart entirely from any I I question as to how a.Reg 129/89 should be interpreted, the employer I .. could not rely on a.Reg 129/89 since it did not, purport to appoint the grievor to the new group established under that regulation. We are unable to see'merit in this submission. Nothing in either the Public Service Act or the Regulations requires that the form of an appointment to the unclassified service designate specifically the particular group into which the employee will fall. All that s. 8 of the Public Service Act requires is that the appointment be "to a position in the unclassified service". Whether that appointment is valid will depend on whether or not it meets the requirements set out in the regulations. There l.S no basis for reading into the Act or regulations a further formal requirement identifying the group into which the employee falls. - J ~ . . 17 Counsel for the union, in her opening submissions, also adverted to an estoppel argument. However, as the issue was not pursued in any detail, notwithstanding that the employer joined issue on the point, we assume that the argument has been abandoned. In summary, we find that the grievor was properly appointed in accordance with section 8 of the PUblic service Act and a.Reg 129/89. Therefore, she has no status to pursue the competition-grievance. Nor, in the absence of any claim that the non-renewal of her contract, is a disguised dismissal for culpable conduct, does she have any status to pursue the dismissal grievance. .. The preliminary objection is allowèd. . . . , .'- ~ , . . 18 . Dated at London, onto this 12th-, day of NoveQlber J 1991. - - -j é -- ;.-' c ') /_, '--- . I / / - G. J. .Brandt, Vice Chair . , I ,_,I ~~>~..:~<- /...CJ -> . (~ddendum attached) O. Clark, Employer Member , "I Dissent" (dissent attached) -. E. Seymour; Union Member .' . . I, . ..\DDENDUM G.S.B. #428/90, 1640/90, 1641/90 OPSEU (Porter) I and The Crown in Right of Ontario I (Ministry of Skills Development) . " " I fully agree that the appointment of the grievor to the unclassified service is proper. As a result, '+ is unnecessary l ~ for me to express any opinion with respect to the issue of timeliness. , i j r , ~ \ I " . ,I I' . --, ----.. r .~~-jt '..' )~ "-...:=- ...... . ¿,.,¡.... -::... Don M. Clark, Member I " . , . , RE: GSB FILE 428/90 : OPSEU VS MSD (PORTER) DISSENT - EDWARD E. SEYMOUR I have read the majority decision and I find I must, with respect dissent. Commencing , with Beresford (1596/84) there has been a line . 0 f jurisprudence which has,found that appointments to the unclassified services were improper because they did not comply with Section 6 of the Regulations. The panel in Beresford found that the statute - creates a distinction which' is not merely one of unclassififed or classified services. - 'It found that the distinction to be drawn from the two types of appointments was that there must be a ~ifference between the two levels of appointment and, that difference was shown to be the . temporary nature of the unclassified service as compared to the permanent nature of the 'classified service. Section 8.1 of the Pub Ii c Service Act states . the initial appointment to the unclassified service should be for a period which 1s not to exceed one year, a fact which the majority of this panel seems to dismiss as irrelevant. In rUling there is no conflict between 0 REG 129/39 and Section 8 of the Public Service Act (PSA), the majority pointed out that the panel in Beresford spoke of a distinction between the job in its ; - -- ~ ;. initial conception and the permanent classified position. The majority then arrives at the conclusion that this comment was not the principal reason for the decision. That may be so, but the I I simple assertion that a position is not the most important, is no reason to ignore it. , ! I ¡ The Beresford Panel went to Regulation 6 seeking clarification for Section 8 of the statute because of the "uniqueness o'f the wording" . In the Beresford decision the regulations a.ssisted in deriving an explanation for the statute to the effect that it covered temporary employees. I agree with the majority that the Cabinet can expand the existing . regùlations~ However, it can't change its original meaning and -that is what occurred in this i,nstanc e " as I perceive it. The Cabinet did not broaden the basis for appointment to the unclassif~ed service, it eliminated .the distinction between them. The acceptance of the 4th group of employees eliminates any Beresford type of analysis in the future. The result is that the union's opportu~li ty to challenge any appoint.ment. to the unclassified service is effectively eliminated and gives any Ministry Carte Blanche to appoint anyone to the unclassified service for any duration. Section 6 and 7 of the Public Service Act clearly refer to appointments to ·the classified service. Section 8 just as clearly t - - ~ .~ ~ ',: . . refers to appointments to the unclassified service. The opening sentence of Section 8 of the statute clearly indicates the temporary nature of the appointment. This was elucidated by Vice ,Chair Mitchnick in the Milley decision when he clarified the di ffere'nce between classified and unclassified staff. He wrote: " In simplified terms, for the purpose material here, the classified staff are the regular or permanent employees , of the government and the unclassified staff are the employees hired on fixed term contracts. These contracts self destruct on their expiry date. " ~ I would suggest that simply adding a new Group 4 under Regulation 6 cannot eliminate that difference. -. , - For these reasons I would,have ruled that Section 8 of the Statute, does not permit the addition of a new group 4 as written. and the introduction of such a regulation was ultra vires to the Act. ¡ I would have dismissed the preliminary objection raised by the employer and heard the'merits of the case.