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HomeMy WebLinkAbout1990-1799.Houston&Campbell.93-12-03 GRIEVANCE COMMISSION DE ~ ~ SETTLEMENT Ri=GLEMENT BOARD ~DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TOF~O~ITO, ONTAR~. M5G ~Z8 TEtEPHONE/TE£EP~©NE: (415) 326- 1388 180, RUE O(JN~A5 0UEST, BUREA~J 2 tOO, TOF~ONTO (Ot'.ITAR~O). MSG tZ8 FACSIMILE/T~L~-COF~IE : ' (4 t6~ 326- 1396 1799/90, 1803/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN,EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD, BETWEEN OPSEU (Houston/Campbell) " Grievor -'and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: R. Verity vice-Chairperson G. Majesky Member D. Clark Member FOR THE P. Munt-Madill UNION Counsel Ryder, Whitaker, Wright & Chapman- Barristers & Solicitors FOR THE J. Benedict EMPLOYER Manager, Staff Relations and Compensation Ministry of Correctional Services HEARING July 9, 1993 2 SUPPLEMENTARY DECISION Paul Houston and David Campbell were employed at Metro East Detention Centre' as unclassified correctional officers. Both~ grieved the non-renewal of term contracts that expffed on September 30, I990. At the hearing, the'EmPl0yer contended that Houston and Campbell were properly appointed to the unclassified service, working "on an irregular and 0n-call basis'', within the. meaning of group 1 of the unclassified service as defined in S.6(1)(a)(iv) of Regulation 881 of the Public Service Act. In a decision dated February 18, 1992, the panel determined that the grievors were improperly appointed to the unclassified service. 'The issue of remedy was remitted to the .parties while the board retained jurisdiction. The sole issue for determination is whether or not the panel will issue a remedy in light of the judicial review of four G.S.B. decisions;'namely, Parry, Porter, Singh and Lavoie. The parties proceeded by way of written submissions following a brief hearing on July 9, 1993. The union's submission was filed on August 24 and the empIoyer's submission followed on September 16. .. Br/efly stated, the union atgnes that the panel is functus officio with regard to the issue of the validity of.the grievors' appointment to the unclassified service. However, the union maintains that the panel has an obligation to fashion a remedy to compensate the grievors properly. In the alternative, if the Panel were to find.that it is not functus officio, the judicial review in Parry, Porter, Singh and Lavoie, which addresses the validity of group 3 4 appointments under s.6(1)(d) of Regulation 881 to the Public Service Act, has no relevance to the facts of this case. The t~n ion referred us to the following authorities: OPSEU [Ward) and Ministry of Citizenship 1720/89, 1721/89 (Dissanayake); O, PSE U (Angus et al)_and Ministry of Correctional Services 203/84 (Slone); Ontario Public Service Employees Union and _Carol Berry and Ministry. of Community and Social Services (Ont. Div. Ct. - February 17, 1986); ReAir Canada and Canadian Airline Employees Association (1973), 3 L.A.C. (2d) 375 (Johnston);Re Skeena Sawmills and lntemational Woodworkerx. Local 1___.-71___. (1990), 15 LA.C. (4th) 432 (Bird); Chandler et al. v. Alberta Association of A'rchitects et al. [1989] 62 D.L.R. (4th) 577 (S.C.C.); Ontario Public Service Emplaveex Union, 'Party. Porter, Singh and Lavoie (Ont. Div. Ct. - February 12, 1993) and Figtiano and Ministry of Transportation and Communications 218/79 (Pr/chard). The employer contends that the judicial review in Lavoie et al determines conclusively that there is no remedy for the non-renewal of a term contract of an unclassified employee~ In support, the employer cited the following authorities: OPSEU (Ryder) and Ministry of . _Correctional Services 2413/87 (Dissanayake); OPSEU (Parry) and Ministry of Finaecial Institutions 237/91 (Low); OPSEU (Porter) and Ministry. of Skills Development 428/90 (Brandt); OPSEU (Singh/Mohamed.) and Ministry of Transportation 721/89, 730/89 (Kirkwood); OPSEU (Lavoie) and Ministry of Correctional Services 441/91 (Keller); OPSEU (Jafri) and Ministry of Correctional Services) 933/91, 935/91 (Dissanayake); OPSEU (Parry, Porter, Singh and Lavoie) (Ont. Div. Ct. - February 4, 1993 and February 12, 1993). · It is helpful, we think, to set out the provisions of the Public serVe'ce. Act for both the .appointment and the termination of appointment to .the unclassified service. Appointment to the unclassified service is provided in s.8 as follows: I 8. (1) A ministor or any public servant wlio 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 the subsection (I) shall be deemed to have been made by his min~er. Section 9 of the Ac__tt provides for termination of appointment to the unclassified service as follows: 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. On the issue before us, the Ontario Divisional Court has effectively resolved the conflicting lines' of authority. The decisions in Parry, porter, Singh and Lavoie were heard togeth,er in a judicial review before the Ontario Court of Justice earlier this year. On February 4, 1993, Mx. Justice Carmthers in a unanimous judgment of the Court dismissed the union's application for judicial review in Patay, Porter and Singh with the following endorsement: We see no error in law ia the following statement of the Board: ... We are of the view, therefore, that the Minister did have the power under section 8 to appoint Mr. Puny to the unclassified service at the date that he aras first appointed, and that that being the case, Mr. Parry ceased to be a public servant pursuant to the provisions of section 9 of thc Act upon the expiry o~ his last contract. 5 Sub!equenfiy, on February 12, 1993, the Ontario Divisional Court allowed the employer"s application for jddicial ~eview in Lavoie. Justice Carmthers' endorsement reads as follows: "Aa i~, the Porter, Parry and Singh matters, all of which we have disposed of as above, the Lavoie matter involves an interpretation of section 8 of the PSA. ThelBoard in Lavoie determined that he had not been properly appointed to the unclassified service beea,'usc "he was not employed or appointed to meet tcmporav/star-Frog requirements". In the course of reaching this conclusion, the Board said that "in the instant case we have found the grievor's position was an ongoing on6 with the work being performed thc same as that performed by classified employeeg'. The Board found that Lavoie was to be appointed to the classified service effective September 30, 1991, being the end of a six month per/od following the termination of his second contract. Lavoie was appointed by the M~igter under Section 8 to the unclassified service. The first contract ran from 25 June 1990 to 30 September i990 and the second from October 1, 1990 until March 31, 199I. There was no · renewal of the second contract,, and thus, according to 'section 9 of the PSA, he ceased "w be a public .se?ant'" at that time, ! It is our opinion that the Board's interpretation of section 8 is not correct a~d that its conclusion is pa[ently unreasonable. It is our view that the decision of fl~is Court in OPSEU (Beresford)'doesa't require us to conclude othenvise. The application insofar as it ~lates to Lavoie is therefore allowed. We would agree with the union.that oar panel is now functus officio in the sense that 1 we haveI no authority to issue a further decision on the merits. We did, however, retain 'l jurisdiction on the issue of remedy. It would be uniealistic, we think, to grant any remedy to es s. Houston and Campbell in light of the judgment of 1Vff.' Justice Carmthers. In our vi , it make~ no difference whether the employer deemed the. grievors to' be group 1 or grot~p 4 unclassified employees, haxdng regard to the judgment of the Court that there is simply/~o remedy for the non-renewal of a term contract made pursuant to sections 8 and 9 of the Pablic Service,4ct..We are satisfied that.to fashion a remedy would be contrary to. 6 the judgment of the Ontario Divisional Court in Lavoie. ~Accordingly, there' shall be no remedy awarded. DATED at Brantford, Ontario, this 3rd day of ~ 1993. .................... I~L"VERITy, Q.C.- VICE-CHAIRPERSON "I Par~ially Dissent" (aL~ached) G. MAJESKY. MEMBER D. CLARK. MEMBER PART/AL DISSENT The Chairman is correct in his finding that this panel is functus officio in the sense that we have no authority to issue a further decision on the merits. However, as per page 6, of the Union's of the Union's submissions; according to the Divisional Court's decision in the Ontario Public Service Employees Union (Berry et al) and the Crown in Right of Ontario (Ministry of Community _and Social Services), 1986 (Reid) once the Board has · found that the grievor's were improperly unclassified this Board has jurisdictional obligation to fashion a remedy. At page 15 of their decision, the Court states as follows: The Board's obligation under s. 19(1) is to "decide the matter". When looked at without the confinement imposed by Article 5.1.2 '"the matter" grieved was wrong classification. If the Board concluded that the classification was wrong, its mandate was to '. effect a proper classification., its jurisdiction is unrestricted. Its mandate is remedial, In making the decision it made the board refused to decide the matter, it simply finessed it. In doing so it erred in.law. Its error was so ~erious that, in my opinion, . it falls '- into the category of cases requiting the intervention of this court, in accordance with O.P.S.E. IJ. v. Forer, supra. Therefore the Board should reconvene to hear the parties' submissions with regards to remedy. November 18, 1993 MARKHAM, Ontario