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HomeMy WebLinkAbout1990-1739.Lethbridge et al.91-04-05 ONTA,qlO EMF~.OYE,S DE LA COUflO~N£ CRO~ ~L OYEE~ DEL 'ONTARIO GRIEVANCE .C~MMISSION DE SE~LEMENT REGLEMENT BOARD DES GRIEFS 1739/90, 1740/90, 1741/90 IN'THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BO~%RD BETWEEN OPSEU,(Lethbridge et al)- '~- Grievor - and - The Crown in Right of Ontario (Ministry of Health} Employer BEFORE: J. Samuels Vice-Chairperson P, Klym ~. Member H. Roberts Member ~OR THE A. Ryder GRIEVOR' counsel - Ryder, Whitaker, Wright & ChaDman Barristers & SolicitOrs FOR THE J. Crawford EMPLOYER Counsel Legal Services Branch Ministry of Health HEARING: February 13/91 The three grievors were unclassified employees, working as manual labourers at Penetanguishene for over three years on renewed short-term contracts. The Union urged that they ought to be classified employees because their .jobs were on-going. Eventually, it was agreed at the Central Employer/Employee Relations Cormnittee to .:onvert the grievors to classified employees, appointing them as Maintenance Mechanic 2 (a classification which did not fit them well). They were put into newly- created full-time positions in early 1990. But the positions had not been posted an.d other members of the bargaining unit grieved management's failure to post the positions. It was clear that these grievances would have to succeed, because Article 4.1 of the collective agreement requires that vacancies c,r newly-created positions in theLbargaining unit must be posted. The griev'ors, fearing failure in the coming competitions, grieved in anticipation t~heir dismissals from the classified positions. Their forecasts were correct. They were not successful. In late 1990, the grievors were informed that they would be returned to the unclassified service. Unformnately, by now the projects which l:hey had been working on at Penetanguishene were over and they could not return to that work. Two of the grievors were given short-term contracts and remained in government service. But one of these contracts has now expired and this grievor is out of government service. Mr. Lethbridge was dismissed immediately. The Union now argues that 'there were a series of errors made, which require some remedy. Firstly, the grievors should not have remained as unclassified employees for over three years. Secondly, they should not have been placed in classified positions without posting. Thirdly, they should not have been classified as Maintenance Mechanic 2. 3 And most importantly, they should not have been dismissed from the classified service. At the least, 'the grievors should be considered as surplus employees and be treated according to the provisions of Article 24 of the collective agreement. The Ministry argues that the grievors were never properly appointed to the classified service because, in fact, there Were no vacancies available for them to fill. Vacancies had to be posted and the grievors did not succeed in winning any posted positions. Because they were never properly appointed to the classified service,' they were not dismissed from the classified service. Rather, they were always unclassified employees, though mistakenly considered to be classified for a brief period of time. In support of th/s argument} reference is made to Beresford/Milley( 1429/86 and 1972/87 (SamUels), in which the Boa'rd held their the-requirements for a proper appointment to the classified service are an appointment by the Commission, pursuant to section 6 of the Public Service Act, and success in a competition for the vacancy or newly-created position, pursuant to Article 4. I of the collective' agreement. It is argued that this Board does not have jurisdiction to deal with their grievances, because they do not raise any matters over-which this Board has jurisdiction. The Ministry argues that the' agreement between the Union and the Employer to convert the grievors to classified employees and to put them in classified positions 'was improper and could not have force and effect, because the classified Positions had to be posted. Furthermore, the Ministry m'gues that it would be wrong to permit the Union to grieve the reversion of the grievors to the unclassified service, because the Union supported the grievance which challenged the grievors' appointments to the classified positions. The Union cannot now complain about the results of its own actions. The Union, on the other hand, argues 'that the initial appointments to the classified service were valid because they met the requirements of section 6 of the Public Service Act. At the tirne, the appointments were unconditional, ff no one had grieved these appointments, to the new classified positions, clearly the appointments would have survived and would have to be confirmed. If the appointments were valid in the first place, they cannot be revoked. And then it follows that, in order for the grievors to now find themselves out of the classified sen, ice, they tnust have been dismissed without just cause. The grievors did not accept their dismissals. Indeed, they grieved. The fact that two of them took' later unclas'Sified positions does not mean that they condoned their dismissals from the classified service. They took this later work in order to mitigate their losses. In our view, it is important at the outset to distinguish between the situations of the grievors in Beresford and Milley and the grievors here. In Beresford and Mi'lley, the grievors were never appointed to the classified service by the Employer. Rather, the grievors had been members of the unclassified service on limited--term appointments, which were not renewed. The grievors argued that they were not properly appointed to the unclassified service, and therefore that they must be considered to have been appointed to the Classified service. In the initial award dealing with their grievances, the panel chaired by Mr. Mitchnick decided that their appointments to the unclassified service were improper and unauthorized. The grievors then asked a second panel, chaired by Mr. Samuels, to find that they were classified 'employees, This second panel decided that they were not classified employees because they had not been 5 appointed to the classified service according to section 6 of the Public Service Act, and they had not applied for.posted positions under Article 4 of the collective agreement. It is this part of the decision of the second panel which the Employer now relies on in our case. tn effect, what the second pane/said was that it would be fanciful to consider the grievors to have been classified employees all along, when their hiring did not involve any of the steps normally associated with appointment to the classified service. The essential po.int in Beresford and Milley was that the grievors had never been in the classified service. In the cases before us now, the situation is markedly different. Here the grievors were appointed to the classified service according to section 6 of the Public Service Act. There was no violation of this provision. However, there was a violation of Article 4.1 of the collective agreement,- because the new positions were not posted. But, in our view, this violation did not vitiate the appointments ab initio. The violation of Article 4.1 simply meant that the rights of other members of the bargaining unit were violated, but these .members could Choose to ignore the violation. The violation of Article 4.1 had no significance as between the Employer and our grievors. The violation of Article 4.1 could give rise to a grievance from some 'other member of the bargaining unit (as, in fact, did happen). In these circumstances, in our view, the grievors did become members of the classified service. However, they were displaced from their positions as a result of the grievances filed under Article 4.1. And it is important to note here that the Union did not file these grievances--they were filed by individual 'members of the bargaining unit. What is the result of all of this? In our view, the grievors must be considered to have remained in the classified service after their failure to get the ,posted positions. The Employer had no right to remove them from the classified servicemthere 6 was no just cause for dismissal, and they were not "released" under section 22 of the Public Service Act. Instead, they became surplus employees and have the rights provided in Article 24 of the 'collective agreement. In effect, their grievances, which read "I have been dismissed (released without just cause)", must be taken to complain of a violation of their rights under Article 24. The grievors should have been dealt with according to the procedures set out in Article 24. Instead, the Employer summarily informed them that they were being returned to the unclassified service. This treatment was not in accord with Article 24 and this is what the gfievors were really complaining about in their grievances. In substance, the grievances before us allege a violation of Article 24. This Board has jurisdiction to determine differences relating to the interpretation and application of Article 24, so we have jurisdiction over these grievances. Thus, we conclude this preliminary award by declaring that we have jurisdiction to determine these grievances, and that the grievors are still members of the classified service with the rights provided in Article 24 of the collective agreement. 7 If the grievors now feel that there has been some further violation of their rights under Article 24--in particular, a violation which resulted in financial loss--we will reconvene to hear and determine the evidence and argument concerning these further matters. Done at London,' Ontario, this 5th day of April ,. 1991. ,.._J~ imuels, Vice-Chairperson P. Klym, Member .f H. Roberts, Member