HomeMy WebLinkAbout1990-1331.Keizer.96-10-29
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OWTARJO EMPL(¡VtS DE LA COURONNE
CROWN EMPLOVEES DE L'ONTARIO
GRIEVANCE COMMISSION DE
1111 SETTLEMENT RÈGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1ZB TELEPHONE/TÉLÉPHONE: (41ð) 32ð-1389
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEfTÉLÉCOPIE: (41(1) 32ð-139ð
GSB # 1331/90
OPSEU # 90D162
IN THE MATTER OP AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Keizer) Grievor -
~. . - and -
The Crown in Right of Ontario
(Ministry of the Attorney General)
Employer
BEFORE J. Emrich Vice-Chairperson
N. Carriere Member
M. O'Toole Member
~L' FOR THE A. Ryder
GRIEVOR counsel
Ryder, Wright, Blair & Doyle
Barristers & Solicitors
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FOR THE G. Gledhill
EMPLOYER Employee Relations Consultant
Human Resources Branch
Ministry of the Attorney General
HEARING May 24, 1991
August 22, 1991
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INTRODUCTION
The grievor, Nadine Keizer, whose appointment was to the unclassified service, alleges
that the non~renewal of a term contract as Court Support Services Clerk which was due to
expire March 31, 1990, but which was extended to May 31, 1990, constituted a dismissal
without just cause.
The Employer contends that the grievor was appointed properly to the unclassified
service through a series of term contracts to act as a relief Cashier, and then as a Court
Support Services Clerk during the reorganization of the Provindal Couns. The Employer
contends that the grievor was released pursuant to s.9 of the Public Relations Act.
PRELIMINARY ISSUES
A preliminary objection was raised by the Employer at the outset alleging that the
grievance had been settled and the grievance was inarbitrable accordingly. In support of its
position, the Employer C3.lled two witnesses, Ms. Mary Rose Funnell, Human Resources
Consultant for the Ministry and Mr. Nestor Prisco, Court Services Manager for North Bay
District. Ms. Funnell had entered into discussions concerning possible settlement of the
grievance with Mr. Ray Storey, the local business agent for the Union. Toward the end of
July, Ms. Funnell prepared a d~ent setting forth the terms which had been discussed with
Mr. Storey and forwarded the document to the court office at North Bay on July 27, 1990
for signature. The grievor was not present at the settlement discussions, although Mr, Storey
had indicated to Ms. Funnell that the grievor was being informed of the course of the
negotiations for settlement and the proposed terms. As it turned out, Mr. Storey was not
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available to attend at the court office on Friday, July 27th and the grievor had changed her
mind and refused to sign the document prepared .for signature on behalf of the Ministry, the
Union and the grievor. Once Mr, Storey had returned from vacation and consulted with the
grievor, he refused to sign. the document as well. The Ministry continued to process the
grievance through the grievance and arbitration procedures without reference to any alleged
settlement until the preliminary objection was raised at the hearing. Both Ms. Funnell and
Mr. Prisco admitted in cross-examination that it was the expectation of the parties that the
settlement would not be effective until it was signed by the three affected parties. Mr. Prisco,
to his credit, candidly indicated that in the absence of the grievor's willingness to sign the draft
agreement there was no settlement that could be confirmed. We ruled at the hearing that the
evidence adduced did not support a finding that the grievance had been settled and
accordingly, the grievance was not inarbitrable on that ground. We confinn the ruling in this
award that the grievance is not inarbittable on the basis that it has been settled. The evidence
does not support a conclusion that the grievance was settled, nor did the Employer evince any
intention to rely on an alleged settlement during the ensuing grievance and arbitration
procedures. Unlike the facts in the case Re Bilt-Rite Upholstering and Upholsterers' Union
(1979) 24 LAC. (2d) 128 (Rayner), it is not clear from the evidence adduced that the grievor
had approved of and agreed to the terms, nor was it apparent that the parties considered the
exeOltion of the settlement dOOlment to be a mere formality. On the contrary, the conduct
of the parties evinced an intention that the draft settlement document was a mere agreement
to agree until consent to the terms was evidenced through ex.eOltion of the document by the
grievor and the Union. Ths never occurred. On the same reasoning, the facts of this case are
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distinguishable from the facts in the case Re O.P.S.E.D. ({ansen) and The Crown in Right of
Ontario (Minisuy of Correctional Services) 888/89 (Watters) in which the evidence supported
a conclusion that a settlement had been reached. In that case the conclusion was supported
by the grievor signing a blank letter of resignation and filling in blank spots on the
memorandwn of settlement, the Uruon representative's testimony that the grievor was
satisfied with the agreement. and the ollÙssion to <;åll a key witness on the part of the
Employer.
Following our ruling on the first preliminary objection, a second preliminary objection
was raised that the issue of unjust dismissal raised by the grievance dated June 26, 1990 was
moot because the Employer subsequently reinstated Ms. Keizer to a temporary unclassified
position for the period from July 31, 1990 to Octoher 19, 1990. On behalf of the grievor, it
was argued that if it were accepted that the grievor were appointed properly to the unclassified
service, the Employer's argwnent might have m~rit. However. it was pointed out that the real
issue of substance in this dispute is whether the grievor ought to have been appointed to the
classified selVÏ.ce. rather than hired on a series of limited term contracts in the unclassified
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service. Thus, this case raises similar issues to a series of cases arising in the wake of the
decisions in Re O.P.S,E.U. (Beresford) and Ministry of Government Services G.5.B. 1429/86
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. (Mitchnick); Re O.P.S.E.U. (Milley) and Minister of Revenue G.S.B. 197'})87 (Mitchnick)
upheld on judicial review in an unreported deåsion of the Ontario Divisional Court.
December 6, 1988; and Re O.P.S.E.U, (Bressette et a1) and Ministry of Natural Resources
G.S,B, 1682/87 (Wilson). At the hearing we issued an oral ruling wlùch is confmned in this
award that the substance of the dispute involves a determinaùon of the proper
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characterization of the grievor's appointment to the dvil seIVÌce. If the Union can meet the
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onus upon it to establish that the gx1evor ought to have been appointed to the classified
service, then her termination could jot be effected under s.9 of the Public Service Act. but
would be: governed by th~ requiremenJ of just cause. The Union asserts that other remedies
would flow from a declaration that thl grievor was entitled to be appointed to the classified
service. Therefore, the grievance has lot been rendered moot by the grievor's reinstatement
to . temporaI)' position in the unlsified service for the period from July 31, 1990 to
October 19, 1990. and we so ruled,
MERITS - FACTS
The grievor was first hired as a relief Cashier in the Provincial Court (Criminal
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Division) in North Bay from February 23, 1988 to March 31, 1988 pending the appointment
of a court administrator. The terms and conditions pertaining to the grievor's lùre are set
forth on the face of the contract:
PART V
TERM:S AND CONDITIONS OF EMPLOYMENT
(A) The applicant is hereb~ appointed to the unclassified staff pursuant to
section 8 of the Public Service Act.
(B) The work period and hours of work shall be as determined by the
employee's supervisor.
(C) The applicant's employment under this contract shall be on an as
required basis, and s~ll not exceed the maximum number of hours
specified above, excluding overtime as defmed in clause (D) below,
(D) Overtime will be paidl at the rate of time-and-a·half for any work
performed in excess of Is even and one·quarter (71/4) or eight (8) hours
per day, as applicable, plculated to the nearest half hour.
(E) Vacation pay will be 4% of gross earnings. Tlùs payment will be added
b" kl .1
to your I-wee y earnmgs.
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(F) Statutory holiday pay will be 4% of gross earnings, not including
vacation pay. This payment will b.e added to your bi-weekly earrúngs.
(G) The applicant is eligible, where applicable, to receive fees and expenses
I as set forth in the regu1ation(s) under the Administration of Justice Act.
(H) (Deleted from standard fonn.)
(I) Payment of full OHIP premiums will be made upon completion of three
calendar months of full time continuous employment, including leave of
absence without pay due to sickness.
(J) Bereavement, Jury or Witness Duty leave is pro~ded for in accordance
vvith the W.C.CA or applicable regulations under the Public Service
Act.
(K) Union dues will be deducted in accordance with the W.C.C.A.
(membership in the OPSEU is granted only on application by the
employee to the W,C.CA).
(L) Other conditions or provisions in accordance with the W.C.CA or
regulations under the Public Service Act as applicable.
(M) This contract of employment may be terminated by either party upon
giving one week's notice of such intention, otherwise it will expire on the
date specified above.
(N) This contract is not binding urlless it is approved by the Attorney
General or his designee.
The grievor was reappointed to the same position as relief Cashier for the period from April
4, 1988 to May 31, 1988 on the same terms and conditions as her first contract. On May 31,
1988 she was re.appointed for a period of seven months to December 31 J 1988 as a relief
Cashier in the same coun, on the same terms and conditions. This contract indicated that
it was an extension of the immediately preceding contract. The fourth contract appointed the
grievor from January 3, 1989 to March 31, 1989 to work as a !elief Cashier. The
uncontradicted evidence of the grievor is that her duties, hours, and all other working
conditions remained the same as under the previous three contractS and were
indistinguishable from the duties and hours of work which her predecessor, Anne Barrigan,
worked as a classified employee. The flfth contract appointed the grievor for a period of
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twelve months from April I, 1989 to March 31, 1990 as "acting caslùer until such time of
replacement of regular employee or posting." At this time a major reorganization of the court
system was underway. The grievor testified that she was given some assurance by court
officials that she would be offered more permanent employment in the wake of this
reorganization. Her sixth contract appointed her to the unclassified service for the period
from August 28, 1989 to March 31, 1990 in the position as Court Support Services Clerk,
Trial Coordination Section. A note on the face of the contract indicates that contract #6
"cancels and supercedes" contract #5 for the balance of the year to which contract #5
pertained. The grievor testified that the position as Coun Support Services Qerk differed
from the duties and responsibilities as Caslúer, Her duties as Court Support Services Oerk
entailed setting dates for trials under the Provincial Offmces Act, arranging hearing dates for
appeals in North Bay couttS and satellite court, preparing the trial dockets, preparing invoices
for court reponers,}?reparing the necessary paperwork for bail hearings, and . preparing notices
of selection for jury duty, The grievor testified wt about half of the functions in her new
position she had performed in her position as a Cashier. The grievor indicated that she had
not received training to do the work as either a Caslùer or as a Court Support Services Clerk,
but had learned what was required from manuals.
A Jetter dated July 27, 1989 was adduced wlúch confirmed the grievors reassignment
from the Provincial Court (Criminal Division) office to the Court Support Services office.
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M in istry of Couns A<lminiSlralion 720 Bay SIIUI
the Attorney ONision T01(l~IO, OnlaflO
MSG 2Kl
General Oi~is\on UI
radm'n'Sllalion 720, rue Bay
Ministère des lnb"nau& TorOnto (Ontaflo¡
du ProctJreur MSG 2Kl
général (416J 325,4002
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July 27, 1989
Ms N. Keizer
Acting Cashier
Provincial Court (Criminal Division)
360 Plouffe St.
North BaYr Ontario
Dear Ms Keizer:
Due to reorganization of the North Bay 'court offices, you
have been reassigned from the Provincial Court (Criminal
Division) office to the Court Support Services Office,
support Section. There has been no change of your current
classification (O.A.G. 6) or salary.
This will become effective on August 28, 1989 and you will
report directly to Nestor Prisco, Manager, until the position
of supervisor (Support Section) is filled.
It will be necessary to complete a new contract confi~ing
the reassignment prior to August 28th.
Andre Clement
Regional Director
cc: Personnel file
Nestor ?risco
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j~ ~ ~~¡¿~,d A:~
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In cross-examination the grievor indicated that at the time of the reorganization she
was advised by the management reorgaIÙzation team that the three positions of Bookkeeper,
Cashier, and Coun Support Services Clerk would be posted. It was explained to her that she
would have to compete for any such posted positions. The grievor indicated that she was
confident she would be successful in such a competition because she had performed well in
the position of Cashier from February 1988 to August 1989. As it turned out, the position
of Court Suppon Services Cerk was eliminated and never posted.
The grievor continued in the position as Court SuppOrt Services Clerk until May 31,
1990. Her letter ofteímination sets forth the following:
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't ( JUN 28 1990
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0111':1:'1.,
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Ministry of Sh.rill Oil1r~-C1 of Courl Hol.I~~
the Attorney Nipiuing 390 P'ouf~! :-
No,,!> Ilav, O'
General PIS 4Gl
Minislère Shi,l! Oimiet dt Palai1 dl!' iuu~"7
du Procureur Nioissing 390, '''0 Plou"
Nor,h BlV ICe
general PIS 4Gl
70SlHt,191C
May 11th, lHO.
Mrs. Nadine Keizer,
450 Lakeshore Drive.
North Bay, Ontario,
P1A lEI.
Dear Mrs. ICeizer,
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Further to out' conversation, this letter serves
as written confirmation that, as a result of unfot'e-
seen budgetary constraints, your employment with the
Minis try of the Attorney General, Courts Administration
Offfice, North Bay, will be terminated effective .
May 31st, 1990.
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Tñis letter serves as notice pursuant to the
Terms and Condidtions of Employment as s ta tad on your
dontract, as well as Section 8 of the Public Service
Act and Article 3.12 of the Collee the Agreement.
Your contributions to office are appreciated
and we wish you the best ín future endeavours.
...
W ,
/t.^-t
NP/sn
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Mr. Nestor Prisco, me Court Services Manager for the District of Nipissing. explained
that during the period of the time from February ~ 988 to May 1990 the Criminal and Family
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Divisions of the Provincial Court and Small Claims Court were undergoing a process of
reorganization and integration under a single management structure, During the
reorgarùzation, classified staff holding the positions of Bookkeeper and Cashier were promoted
to acting positions as Acting Administrator and Acting Deputy Administrator and Bookkeeper
respectively. Following integration, the same classified suff returned to their former positions
as Bookkeeper and Cashier respectively. IT positions were modified more than 25% as a result
of reorganization, the positions were posted for competition. Mr. Prisco explained that for the
fiscal year commencing Aprill, 1990. the Northeastern Region was overbudget and he was
advised to take immediate steps to reduce the deficit. Among several cost-cutting initiatives,
the position of Court Support Services Clerk was eliminated and the duties of that position
were distributed widely across a number of staff who had perfonned some coun support
functions in the past,
Mr. Prisco explained that the classified inaunbent continued in her position as Cashier
from June 1990 until her retirement on July 3 I. 1990. \tVhi1e Mr. Prisco awaited
authorization to post the vacancy and recruit. the grievor was hired from August to October
1990 to fill the position on a temporary basis. Eventually a competition was held and the
grievor was interviewed as one of 7 or 8 shon-listed candidates for the position as Cashier.
In cross-examination Mr. Prisco denied that the grievance filed in June 1990 arising from her
termination on May 3 I, 1990 affected the grievors prospects in the competition. As a
memb~ of the selection panel. Mr. Prisco indicated that he thought neither of the other two
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members were aware of the grievance and the subject did not come up during the, recruitment
process or interview, These assertions were not contradicted in reply evidence by the grievor.
In cross..examination, Mr. Prisco d.uified that during the period that Ms. Keizer
worked as a relief Cashier, for 1'h years from February 1988 to August 19B9 under five short.
t~rm contracts, the position of Court Adnùnistrator was filled on an acting basis by the
classified employee Anne Harrigan who returned to her position as Cashier following
integration until her retirement. Mr. Prisco indicated that the last two short·tenn contracts
by wlùch Ms. Keizer was appointed as Court Support Services Clerk from August 19B9 to the
end of May 1990 were entered into before the extent of the salary budget was known,
effective April I, 1990. At the time that Ms. Keizer was appointed to the position as Court
Support Services Gerk, management did not contemplate the elimination of the position and
redistribution of the duties across other staff. Mr. Prisco explained that if the position been
continued permanently, the position would have been posted and a recruitment taken place,
ARGUMENTS OF THE PARTIES
On behalf of the grievor, we were referred to the reasoning of the Grievance Settlement
Board in a series of cases wlùch reviewed the propriety of the Employer's appointment to the
unclassified service within the statutory and regulatory framework of the Public Service Act and
Regulation BB 1: Re O.P,S.E.U. (Beresford) and Ministry of Government Services G.S.B.
1429/86 (Mitchnick) and Re O.P.S.E.U. (Milley) and Ministry of Revenue G.S.B. 1972)B7
(Mitchnick), both upheld on judicial review December 6, 19BB by the Ontario Divisional
Court; Re O.P.S.E,U. (Bressette et a1) and Ministry of Natural Resources G,S.B. 16821B7
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(Wilson); Re O.P.S.E,U. (Union Grievance) and Ministry of Natural Resources G,S,B. 1480,
1481 and 1482/89 (Kaplan); Re O.P.S.E.U. (BeresfordIMilley) and Ministry of Revenue
G.S.B. 1429/86, 1972/87 (Samuels) which held that the Board did not have remedial
authority to appoint an unclassified grievor to the classified service, reversed on that point on
judicial review, November 26, 1990 (ant. Div1. Ct.); Re O.P.S,E.U. (Wagner) and Ministry
of Citizenship G.S.B. 351 and 352189 (Stone); Re O.P.S.E.U. (Kozak) and Ministry of
Correctional SeIVÍces G.S,B. 979/88 (Fisher); ~e O.P.S.E.U. {Lethbridge} G.S.B. 1739, 1740
and 1741/90 (Samuels); Re O.P.S.E.U. (Canete) G.S.B. 2192/90 (Simmons). The cases
indicate that s,8 of the Publit ServiĊ Act wlúch authorizes the Employer to make appointments
to the unclassified seIVice is to be read with and qualified by the provisions of s.6 in
Regulation BB 1. The scheme of the Act, its Regulation, the Crown Employees' Collective
Bargaining Act, and the collective agreement is to distinguish temporary employment of the
sorts delineated in s.6'of Regulation B81 for which appointments to the unclassified service
may be made, from permanent positions of an ongoing nature for wlùch ~ppointments to the
classified seIVice ought to be made. Where the requirement for the work is ongoing, the
nature of duties and responsibilities and the hours of work are indistinguishable from those
in the classified service performing the same work, then appointment to the unclassified
service is inappropriate. We were urged by counsel for the Union to respect the dichotomy
between permanent employment which is the purview of classified service and temporary
employment of the sort outlined in s,6 of Regulation 881 for which appointment to the
unclassified service is appropriate, Mr, Ryder notes that the amendment to Regulation B81
introducing a fourth category of employees to the unclassified service does not change the
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outcome in this case because the grievor had entered into and worked under four limited term
contracts as Cashier prior to the amendment. Mr. Ryder argues that the amendment to s.6
must be read in such a way as to respect the distinction between temporary and permanent
employment contemplated by the Public Service Act and recognized in the collective agreement.
Group 4, under s.6 of Regulation 881, must be taken to refer to any other temporary
employment not captured by Groups 1. 2 or 3, oJ:herwise the proper scope and application of
the collective agreement would be subverted. Mr. Ryder conceded that '3 proper use of an
unclassified appointment would be to fill the position pending a recruitment by posting and
competition. However. as time wears on. and the posting is not held, the ostensible reason
for justifying the temporary appointment loses validity, unless unusual circumstances
prevented the running of the competition. Mr. Ryder contended that no such unusual
circumstances had arisen in tlùs case. We were urged to examine the substance of the duties
and conditions of employment of Ms. Keizer in deciding whether the statutory and regulatory
framework had been respected in characterization of the appointment as unclassified. In
support, we were referred to P.SA.C. v. The Queen and Econosult Inc., March 21, 1991
(S.c.c.). As to remedy, Mr. Ryder urged us to declare that the grievor should have been
appointed to the classified service, to order such an appointment to the classified service with
its attendant rights and privileges under the collective agreement, damages for loss of
employment, and all lost wages and benefits.
On behalf of the Employer. it was pointed out that the Beresford line of cases were
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decided before s.6 of Regulations 881 was amended to include Group 4. Section 8 of the
Public Service Act and 5.6. Group 4 can be read together as to authorize appointment to the
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unclassified service for a period of not more than a year on the first appointment and "for any
periodn on a subsequent appointment, whether or not the duties performed are similar to
those performed by classified staff. Furthermore, counsel for the Employer directed us to
Article 3.15.1 of the renewal collective agreement for the term January I, 1989 to December
31. 1991. which was signed September 5. 1990. It was argued that this Article revealed that
it was within the contemplation of the panies that once the same work has been performed
by an unclassified employee for a period of at least two consecutive years. and where
management has determined there is a continuing need for such work to be performed on a
full-time basis, the position must be converted to the classified service and posted and filled
in accordance with skill. ability and seniority qualifications in Article 4. :Mr, Gledhill argued
that the amendments to Regulation 881 and the provisions of Article 3.15,1. negotiated in
the context of the numerous Beresford type cases, indiates that the clear distinction between
unclassified and classified service on the basis of the permanent or temporary nature of the
work is irrelevant or not as stringently applied as the case law would suggest. He pointed out
that the effect of the amendment adding Group 4 to s.6 of Regulation 881 was not raised or
.' argued in Canete because the Employer had conceded a breach of its appointment authority.
No other cases were cited to us concerning the effect of the amendment.
Given that the evidence established that a major reorgaIÙzation had caused the
displacement of classified staff, Mrs. Banigan. from her regular ¡x>sition as Cashier. the grievor
was hired on a relief basis through four short-term contract during which time integration of
I' the court admiIÙstration was to be effected. When Mrs. Barrigan decided to return to her
regular position as Cashier, the grievor was appointed on a term contract as unclassified staff
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in the position of Coun Support Services Clerk from August 28. 1989 to March 31. 1990.
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The contract was extended until the end of May 1990 when the position was eliminated as I
pan of budget cuts. The amendment to 5.6 of Regulation 881 was effective prior to this
a ppointment. The evidence of Mr. Prisco indiC3.ted that until the need for budget cuts ,
became known for the fiscal year commenång April 1, 1990, it had been management's
intention to continue tlùs position and fill it through a posting. Mr. Gledhill argued that the
evidence disclosed no violation of section 8 of the Public Service Act, of s.6 of Regulation 881,
or 5.3.15.1 of the renewal collective agreement.
DECISION
The Board in Beresford and in the line of cases following it that were cited to us and
deeded before the amendment to s.6 of Regulation 881, decided that the Minister's power
to appoint to the unclassified staff was limited to the types of positions described in Groups
1, 2 or 3 in section 6 of Regulation 881. If the job did not fit into any of those categories,
men the appointment was improper and ought not to have been made. In the case before us,
Ms. Keizer was appointed under a series of four limited tenn contracts in the position of relief
Cashier during a period of reorganization of the Courts and integration of coun
administration. The first three contracts were for terms of 1 month, I1f2 months, and 7
months respectively. The grievor was aware of the unsettled drcumst.mces and aware that
the classified incumbent in the Cashier position was reassigned as Acting Deputy
Administrator and Bookkeeper for the purpose~ of this reorganiution. On these facts. this
case is distinguishable from Beresford and cases which followed it. It was clear from the outset
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that the appointment of the grievor was not of a pennanent. ongoing nature. but was to bridge
the manning requirements of the court office while a major restructuring was being
implemented. At best, it was not until the fourth contract was entered into for the period
fromApri11, 1989 to March 31,1990 that it was within the contemplation of management
that either the classified incumbent. who was due to retire at the end of July 1990, would be
replaced and/or the Cashier position would be posted, as stated on the face of the contract.
In fact, four months into the fourth contract the classified incumbent returned to her position
as Cashier, The grievor was reassigned and appointed to the Court Support Services Oerk
position. By mid-March 1989, Re~lation 881, section 6 had been amended to embrace a
broader category of unclassified suff than had been encompassed in Groups 112 and 3, as
interpreted in the Beresford line of cases. Furthermore. the renewal collective agreement was
being negotiated in which the parties speåfica1ly addressed the problems of conversion of
unclassified positions to classified status. The relevant provisions of the Public Smnce Act and
of Regulation 881/89 are the following:
The Employer relies upon the provisions of sections 8 and 9 of the
Public Service Act and section 6 of Regulation 881/89:
8, (1) A minister or any public servant who is designated in writing 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. R.S.O. 1980.
c.418. s.8.
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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. R.S.O. 1980, cAIS, s.9.
* * * * * . . . * .
6. (I) The unclassified sezvice consists of employees who are employed
Wlder individual contracts in which the 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.
(ü) in a professional or other special capadty,
(ill) on a temporary work assigmnent arranged by the
commission in accordance with its program for
providing temporary help.
(iv) for fewer than fourteen hours per week or fewer
than IÙl1e 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) 36V4 hours per week where the position, if
filled by a civil servant, would be classified
as a position requiring 36V.. hours of work
per week.
(B) 40 hours per week where the position, if
filled by a civil servant, would be classified
as a position requiring 40 hours of work per
week,
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(ii) for fewer than eight consecutive weeks per year
where the contract of the employee provides that
the employr-e is to work either 361,4 hours per
week or 40 hours per week,
(c) Group 3, consisting of employees appointed on a seasonal
basis for a period of at least eight consecutive weeks but
less than twelve consecutive months to an annually
recurring position where the contract provides that the
employee is to work either 36V. hours per week or 40
hours per week;
(d) Group 4, consisting of employees,
(í) wh~ are appointed pursuant to s.8 of the Act,
whether or not the duties performed by them are,
or are similar to, duties performed by civil
servants, and
(ü) who are not employees that belong to Group 1, 2
or 3. O. Reg. 24/86, s.3(1), pan; O. Reg. 129189,
s.l.
We are of the view that when s.8 of the Public Service Act is read in conjunction with
Regulation 881, section 6, Group 4, the category of employees who maybe appointed properly
to unclassified suff has been broadened beyond the confInes of temporary employment set
forth in Groups I to 3 inclusive, as interpreted in the Beresford line of cases. Indeed, the
parties in their renewal collective agreement for the period from January 1, 1989 to December
31, 1991, contemplate in 5.3,15.1 that ,management may have a considerable period of time
- at least two years - during which the same work has been performed by an unclassified
employee, before the obligation to post the position in the classified service clearly arises upon
management, if there is a continuing need for the work to be performed on a full-time basis:
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-
,
- " . .-
CONVERSION OF UNCLASSIFIED
POSITIONS TO CLASSIFIED POSmONS
3.15.1 Effective April I, 1991, where the same work has been performed
by an employee in the Unclassified Service for a period of at least
I two (2) consecutive years, and where the ministry has
determined that there is a continuing need for that work to be
performed on a full-time basis, the ministry shall establish a
posiùon witlùn the Classmed Service to perform that work, and
shall post 3 V3Qncy in accordance with Article 4 (Posting and
Filling of Vacancies or New Positions).
Article 3.15.1 became effective after the period in time that the grievor was hired and
terminated but it does indicate that the parties were aware of the problem of when
. uncIassífied positions should be converted to classified positions when they were negotiating
their renewal collective agreement.
Indeed, the evidence of Mr. Prisco was to the effect that prior to April I, 1990,
management had thought there may be a continuing need for the work of the Court Suppon I
Services Clerk to be performed on a full·time basis. Budget cuts aborted that objective and I
it became clear that the work of that position could be distributed broadly across the existing
complement of classified staff and the position was e1.ìrninated. At the time the Court Suppon
Services Oerk appoinunent was originally effected, we are prepared to conclude, on the facts
of tlús case, that the appointment was made as a temporary measure in the wake of the
reorgaIÚzation to ascertain whether there would be a continuing need for that work to be
performed full-time in a single position, and in light of the fact that management previously
had committed themselves under contract to the grievor to provide work for her at least to
the end of March 1990. Thus, the evidence discloses that the special circumstances of the
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'.:' '"\ I!'
COurt reorganization and integration led to the appoiprment of the griever on a series of short·
term contract on a relief basis.
Finally, we conclude that the amendment 'to s.6 of Regulation 881 with the inclusion
.
of Group 4 is a final answer to the grievors claim questioning the authority of the Minister
to appoint her to the unclassified service through a series of limited-tenn contracts in two
different positions. We conclude that the amendment supports the Minister in making such.
appointments pursuant to 5.8 of the Public Service Act. That being the case, the Ministry had
authority under 5.9 of the Public Service Act to release the grievor at the expiry of the extension
to her sixth contract on May 31, 1990. It follows that she was not dismissed without just
cause as alleged.
For the rea.sons provided, the grievance is dismissed.
Dated at Kingston. Ontario, on this -.éa- day of October, 1996.
Janf1&" é, £~.~1 J
Vice.Chairperson
-:
"I Concur"
-
M. O'Toole Employer Nominee
~ f~
Union Nominee
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