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HomeMy WebLinkAbout1991-0340.Browarski.92-01-31 ONTARIO EMPLOY~-S DE LA COORONNE CROWN EMPLOYEES DE L'ONT'.41~O ~ GRIEVANCE ' CQMMISSION DE " SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS $1'REET WEST, SU~TE 2tO0, TORONTO, ONTAFWD. MS(] 1Z8 ?'ELEPHONE.q'ELEPHONE: {4~6) 326-~388 '~80, RUE DUNDAS OLIEST, BUREAU 2100, TORONI'O (ONTARIO). USG ~lZ8 FACSIMHLE/T~;..[:'CGPtE : (4~6) 326-1396 340/91 IN THE MATTER OF ]tN ARBITI~%TION Under THE CROWN EMPLOYEES COLLECTIVE BZtR~AINING ACT Before THE gRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Browarski) Grievor - and- 'The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: G. Brandt Vice-Chairperson J. Carruthers Member 'R. Scott Member FOR THE M. Doyle GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE S. Mason EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING. August 19, 1991 2 DECISION The grievor is currently a member of the unclassified service. Two grievances have been put before this panel. One is a grievance, dated March 27, 1991, that was duly processed through the offices of the Registrar and set down for hearing on August 19, 1991. That grievance alleges that the employer has denied the grievor her rights and benefits under the collective agreement and seeks immediate appointment to the classified service with retroactive relief. The other grieuance claims that two job competitions, held'in March of 1990 and .January of 1991, in which the qrievor unsuccessfully participated, are unfair %nd asks that the grievor be awarded~the-position in question. That grievance was dated August 19, 1991 the same date as that scheduled by the Registrar for the hearing of the March 27, 1991 grievance. That grievance was file~ following the receipt by the union, on August 16, of a copy of the selection criteria used in the competitions. On or about August 16 the union also learned that the employer intended to take the position that the Board should dismiss the grievance seeking appointment to the classified service on the basis that the employer had discharged its obligations to the employee in that it had twice permitted her to compete for the position. 3 At the commencement of the hearing counsel for the union asked the Board to consolidate the two grievances and to adjourn the hearing to a time when the union was prepared to pursue the competition grievance. It was submitted that, since it was the intention of the union to challenge the fairness of the competition, the Board ought to await the outcome of that proceeding before it entertained the argument of the e~ployer that, by having permitted ~he grievor to participate in the competitions, it had discharged i~ iegal obligations to her. ~In short it was argued that the Board ought not to dispose of the scheduled grievance on the basis of certain action whose validity was the subject of dispute between the parties. In the alternative, it was~ argued that, should the Board proceed with the scheduled grievance, it ought n~t to rely on the results of the'~competiti0ns that are subject to challenge~ Counsel for the employer argued that the Board should proceed with the scheduled grievance since any challenge to the propriety of the competition would in all probability fail either as being untimely or on the basis that the grievor, as an unclassified employee, lacked the status to grieve the competition. The Board declined to grant the adjournment-requested and ruled that it would proceed with the scheduled grievance. The August 19, 1991.grievance, which has not ye~ been reviewed at a pre-hearing, is not currently before the Board. 4 The grievor, who is currently appointed to the unclassified service, asks the Board to order her appointment to the classified service. The employer concedes that her appointment to the unclassified service was improDer, having regard to the reasoning in Beresford/Millev, up to April 1, 1989, when O.Reg 129/89 broadened the scope of appointments to the unclassified service by adding a fourth category of such appointment~ to which, according to Beresford/Millev, the grievor could be properly appointed. However, it is submitted By the employer that, in the circumstances of the case, the grievor has suffered no loss and that no relief should be awarded. Throughout her tenure with the Ministry the grievor has been employed as a Nurse 2~ ~eneral-in t~e InfirmarY/Extended Care Unit' at Prince ~dward Heights, a facility for the developmentally handicapped, She was initially appointed in a part time capacity. However, on November 4, 1987, her appointment was converted to a full time appointment to run until'March 30, ~9S8. She was successively reappointed without any interruption in service on 12 more fixed term contracts varying in duration from one to four months. On March 12, 1991 she was advised that her contract, which was to expire on March 30, 1991, would not be renewed. However, she accepted a part. time position for the period April 1 to~ September 30, 1991. It is agreed that throughout this period the grievor.continued to.perform the same duties and responsibilities. 5 In June 1990 the employer posted three vacancies for the position of Nurse 2 General. In connection with those postings the o employer considered that, having regard to certain of the duties and responsibilities in the position, it was appropriate to establish a minimum score of 81 (out of 125 maximum points) as a cut off point for all applicants. Five people applied for the position and were all interviewed. The panel determined that the scores obtained in the interview would be decisive. However, the scoring system developed allowed for no credit to be given for experience in the position. The grievor, who received a score of 70.7, came third in the. competition. _ However,' she was not appointed to' one of the three vacancies-as-she had not met the minimum threshold of 80. Instead of filling the vacancy at this time the employer decided to rapost the vacancy andrun another competition at a later date. However, since it remained necessary to ensure 24 hour coverage in the unit, the employer renewed the grievor's appointment to the unclassified service. As such the grievor continued to perform the same. duties as had been performed prior to the competition. In January 1991 the third vacancy was posted and the same selection criteria and minimum score established. Nineteen candidates applied and the grievor, who this time achieved a score of 80.6, placed sixth in the competition. She was again denied the position. However, she continued to work, full time, under 6 contract until April 1, 1991 when the successful candidate started. Thereafter, as noted, the grievor was re-appointed on a par~ time basis. The issue before the Board is one of'remedy. The employer submits that, to the extent that any relief at all should be awarded, it should be limited to that period of time during which the grievor's appointment to the unclassified service was admittedly improper, that is, for the period from November 4, 1987 to Aril 1, 1989. However, it is submitted that, even in respect of that period, no remedy is appropriate in this case since' the employer has done all that the Board, in its earlier jurisprudence, has required to be done 'in cases of this sort. Reliance is placed on Waqner (351/89,352/89) where the Board found that the grievor, whose complaint was that she had been denied an opportunity to compete for a posted position, should not be appointed to the classified service since on the evidence it was clear to the Board that, even if the opportunity, to compete had been given, it was unlikely that she would have been successful. However, the employer was directed to Dost the position and to give the grievor an opportunity to compete. Counsel for the employer submits that in the instant matter the evidence is more compelling than in Wagner. In this case the grievor has, on two occasions, been given an opportunity to compete 7 and has twice been unsuccessful. Counsel characterized the instant matter as the opposite of the situation in Blondin (78/79) where the grievers, unlike the present griever, had been successful in a competition and where granted the relief sought, viz, appointment to the classified service. It'was submitted that this case was identical to Arellano (2401/90, 2401/90) (Fisher). The griever had been employed in the unclassified service on a number of contracts from January 23, 1989 to October 31, 1990. In the summer of 1990 the employer d~cided that the position held by the griever should be a classified position. A competition to which the griever was invited was held but she was unsuccessful. Consequently, her employment was not continued after he~ contract expired on October 31, 1990. In the grievance protesting the non-renewal as a termination, the employer, as here, conceded that the appointments made up to April 30, 1989 were improper as not falling within any of the categories set out in'the Regulations. The union claimed that the griever should be appointed to the classified service but without any specific position. The board refused to grant the relief requested. While acknowledging that the board had the power to appoint a griever to the classified service, it was held that it would bei~'i~a~propriate to do in the instant case since .... the grievor has not shown us that, on the balance of probabilities, had the competition been held when it was supposed to, she would have been successful. This is in keeping with the general proposition that the purpose of a remedy in a breach of contract is to put the innocent party in the same position they would have been in had the contract not been breached. The union in the instant matter argues that the results of the two job ~ompetitions should be discounted. F£rst, it is argued that they are the subject of a separate challenge which the Board may or may not sustain. It is suggested that the threshold minimum score of 81 is arbitrarily established. Further, it is submitted that the failure to give credit for experience in the job has significantly prejudiced the grievor in the competition. Consequently, it is maintained that the results of the competition, insofar as. tkey should be taken as determinative, of the outcome of this grievance, ought not to be relied upon. Secondly, in any event, it is argued that, in view of the fact that the employer was content to have the grievor perform the duties and responsibilities of the position for a substantial period of time, and to continue to have her perform in the position following her failure to qualify in the competitions, the Board should not take seriously the employer's claims that the competition results demonstrate the grievor's incapacity to perform the duties of the position. We agree with the submissions of the union in this regard. In our opinion Wagner cannot be read as establishing a kind of formula 9 such that failure to succeed in a competition will, for all purposes, deprive a grievor of a remedy where appropriate. Nor do we consider Arellano as precluding us from awarding relief in an appropriate case. In Arellano the employer acted immediately following the failure of the grievor in the competition. It chose~ not to renew her contract at the. first available opportunitY. In the instant matter, following the grievor's unsuccessful bid for the position in the June 1990 competition, the employer. nevertheless renewed her contract, with no change in duties, for a further term from October 1, 1990 Go January 31, 1991. Indeed the evidence is that the employerL was prepared to use the grievor's considerable-knowledge and experience so that it could ffll the position on a 24 hour basis until such time as a second competition could be held. Moreover, after the second competition in January of 1991, the grievor's contract was again renewed for a term from February 1, 1991 to April 1, 1991 at which time the successful candidate in the second competition was available to begin. In these circumstances we find somewhat hollow the employer's claim that' the ~esults of the competition should be considered as dispositive of the issue. Consequently, we are inclined in this case to award relief in respect of that period of time during which the grievor's appointment to the unclassified service was admittedly improper. 10 The question of whether the Board has jurisdiction to order the appointment of a grievor to the classified service has been a troublesome one. In a number of cases, of which Wagner 'is the leading case, the Board has expressed some doubts as to its jurisdiction in this regard. ~ However, some recent ca,es have challenged that view. A change in. the approach of the Board began following certain remarks of the Divisional Court in its review of the remedy phase of Beresford/Milley. It may be recalled that in both Beresford and in Milley the Board had left the question of remedy to the parties. When those efforts failed the parties returned to the Board and ~ 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 Waqner. However, on judicial review of that Samuels award, the Divisional Court, while dismissing the application, commented obiter that it was "incorrect" to say that the Board did 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 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 Be~esford/Milley. The Board reviewed the jurisprudence 11 (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 Beresford/Millev, any earlier statements of the Board to the effect that it lacks the remedial authority to appoint an employee 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 our opinion the grievor in the instant matter is entitled to similar relief in respect of that period of time in respect of which it is conceded that her appointment to the unclassified service was .improper, that is, the period from Novembe~ 4, 1987 to April 1, 1989. As noted, the employer takes the position that all appointments subsequent to April 1, 1989 are proper as having been made in conformity with the amendment to the regulation which became effective on that date. That amendment added a fourth group of employees who qualified for appointment to the unclassified service, viz, 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. Counsel for the union argues that the grievor's purported 12 appointment to the unclassified service as an employee falling within Group 4 under Regulation 881 is improper. The e~sence of her argument is that the power to appoint can only come from so 8 of the Public Service Act which, it is contended, is to be used to meet the temporary employment needs of the Crown rather than its permanent ongoing staffing requirements. Thus, to the extent that appointments to Group 4 are permanent in character they must be considered to be unauthorized by s. 8 since a power purportedly conferred pursuant to Regulation cannot alter the scope of s. 8 of the Public Service Act. Accordingly, it is submitted that appointments to Group 4 may only be "temporary" appointments of a kind not captured by any of the other 3 Groups referred to in the Regulation. Any appointment which is, in reality, a ~permanent appointment would be'unauthorized. The position advanced by the union was advanced unsuccessfully in Porter (428/90 Brandt) the award in which was not released at the time of the hearing and argument'in the instant matter. The essence of that argument is set out in the award in Porter in the following terms. The argument i~ that s.8 of the Public Service Act contemplates a "temporary" unclassified service that can be distinguished from the "permanent" classified service. Consequently, any regulation which purports to confer ~ power to make appointments to the unclassified service that are, in reality, both 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. 13 Counsel sought support for this position from Beresford, Miller, Bressette, and from the Act itself. In Beresford 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'$ argument that, in order to fall withi~ the contemplation of the Legislature as to what constitutes a "proper" appointment on a limited-term basis, there must be something about the job in its initial conception which distinguishes it from the normal "permanent" positi6n 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.8 of the Public Service Act. Similarly, in Miller (p.ll) 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 from Beresford set out above, stated that: ...the limitation therefore appears to find its source in section 8 of the Public Service Act itself. The Regulation appears only to flesh out the terms of that limited power. There does not seem to be any open-ended residue of power of appointment in section 8. The existing regulation at the time of Beresford appears to exhaust 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 8 in a way which permits appointments which are permanent and indistin- guishable from appointments to the classified service, it_removes the limitation which Bressette found to be "within section 8 itself." It confers, contrary to Bressette, an "openended residue of power of appointment." Accordingly, 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. The Board found itself unable to agree with the submissions of the union. Its reasoning was as follows: It is well recognized that delegated legislation must be interpreted in the light of the enabling statute. (See, for example, R. v Slater Steel Industries Ltd. [1971] 10.R. 760 (Oht. Cty. Ct.) However, this fundamental principle of our legal system cannot justify the Board in giving the language of the regulation a construction which it cannot reasonably bear. We are unable to see how O.Reg 129/89 can be construed in the manner suggested by the union. Specifically, Group 4 is to consist, inter alia, of employees who do not belong to any of the first three groups. Since the first three ~roups define a kind of relationship which is temporary in nature it appears evident that O.Re~ 129~$9 was intended to comprise employment relationships which are not temporary in nature. To construe O.Reg 129/89 in the manner suggested by the union would be essentially to ignore it. In the face of these interpretive difficulties the only alternative is to find O.Reg 129/89 to be ultra vires the 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 no conflict between O.Reg 129/89 and section 8 of the Public Service Act. Accordingly, it should be given its full effect. ..7 Although it is true that the'Board ~n Beresford spoke of a distinction between the job in its initial conception End the '"permanent" classified position in the civil service, it ~ppears 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" 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 fail'within one of the idedtiffed groups. The question is whether or not, of necessity, the groups identified must reflect an appointment of a temporary character. We do 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 those terms. However, there is nothing in Beresford or in any of the other cases in its wake that state or suggest, that the 15 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 tha~ a change in the regulation cannot expand the "general scope of the appointment power". In our opinion that is precisely what has happened with the enactment of O.Reg 129/89. The Cabinet in its wisdom has chosen to deal with the 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 un~on, we see no conflict between it and O.Reg 129/89. The Board went on in Porter to find the appointment of the grievor to be proper and dismissed the grievance. We are ~ot persuaded~ that there is any 'sound ba~is for departing from the view taken in Porter and, accordingly, we reject the submissions of- the union that the power to make Group 4 appointments should be restrictively read to apply only to appointments of a temporary character. Counsel for the union argued an alternative position. It was submitted that none of the individual contracts setting out the grievor's terms and conditions of employment specify that she was appointed to Group 4. Rather, each contract, including those entered into subsequent to April 1, 1989 when Group 4 was created, identifies the appointment as a Temporary Work Assignment under section 6(1) (a) (iv) of Regulation 881. It is argued that, in the 16 circumstances, the employer cannot now attempt to change the basis of the appointment of the grievor to the' unclassified service. Rather, the character of the appointment must be determined on the basis of the employer's initial determination and the v~lidity measured on'the basis of that determination alone. It was thus argued that, insofar as the facts clearly do not support the claim that the grievor Was employed on a temporary work assignment (as her contract formally indicated), her appointment was improper° Counsel relies on O'Breza (1101/88 Fisher) where the grievor was employed on a series of term contracts in the Farm Assistance Programs Branch of the Ontario Family Farm Interest Rate Reduction Program (O.F.F.I.R.R.). which~ffered ~nterest rebut.es on farm ~oans to qualified farmers. AlthoUgh initia'ily the program was to stop accepting applications in January of 1986, it was extended initially to March 15, 1986 and then for a further year· ~. At the start the grievor was involved generally in all stages of th~ processing of applications~ However, after the program was extended his duties became more specialized. When the grievor was first hired he was excluded from the bargaining unit. However, in September of 1986, following a complaint from the Union, and a few months after the program had been extended for a further three years,.he was put into the bargaining unit. The union argued that, having regard to section 1(1) (f) (vii) of the Crown Employees Collective Bargaining Act (which excludes from the bargaining unit "persons engaged...for a project of a non- recurring kind...") the decision of the employer to make the grievor a member of the bargaining unit was an acknowledgment that he was no longer employed on a project of a non-recurring kind and that the employer could not, at arbitration,, take the position that the grievor was employgd on a project of a non-recurring kind. The Board allowed the grievance. It stated that the employer had determined the question (ioe. as to whether or not the grievor was working on a project of a non-recurring kind) when it put him in the 6argaining unit. Since that decision came shortly after the decision to extend the program f~r a further three ~ears the Board found it reasonable to infer that the employer had agreed to put the grievor into the bargaining unit because the original reason for his exclusion (viz, that he was ~orking on a project of a non- recurring kind) no longer existed. Consequently, since "the parties, through their own actions, have already determined that the grievor is not ~working on a.project of a non-recurring kind] bY virtue of including him in the bargaining unit", the Board found it unnecessary to reach any determination of that question. Further, the Board noted that any determination of that issue would, in effect, infringe~on the exclusive authority of .the Tribunal to determine questions as to whether someone is or is not in the bargaining unit. 18 We do not consider this case to stand for the general proposition advanced by the union. The facts are quite unique. Moreover, the Board, appears to have been influenced by the fact that the decision to put the grievor in the bargaining unit occurred as a result of an agreement reached between the p~rties following a Union compl'aint. Specifically, the award states that "the parties bY their actions" have determined the question." Thus, the case doe~ not hold that the employer may not change the characterization of the nature of the employment. Of course, that decision may be subject to review by the Board. However, the question is not, as the Union here maintains, foreclosed by the initial determination of the employer. Further, the Board has held in Porter (supra) that nothing in either the Public Service Act or the Regulations requires that the form of an appointment to the unclassified service designate specifically the particula~ 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 is no basis for reading into the Act or regulations a further formal requirement identifying the group into which the employee falls. Thus, it m~st be concluded that any appointments of the grievor subsequent to April 1, 1989 were valid appointments to the '19 unclassified service, as appointments to Group 4. We are cognizant of the claim that Group 4 appointments are susceptible of abuse, that is, that employees could be perpetually appointed to the unclassified service and thereby denied certain rights and privileges under the collective agreement in circumstances where, to all intents and purposes, their positions were indistinguishable from those of colleagues in the classified service who did enjoy the benefits of the collective agreement. However, concerns of that nature have now been answered to some extent'through~ collective ~argaining between t~e parties~. Article 3.15 Of the collective agreement which, significantly, was added to the collective agreement subsequent to the amendment to Regulation 881 adding the Group 4 appointments, requires the employer to convert unclassified positions to classified positions after two years if there is a continuing need for the work to be performed on a full time basis. While the inclusion of this clause in the collective agreement can, of course, have no impact on the proper interpretation that should be given to' the scope of s. 8 of the Public Service Act, its existence obviates any need to "find" relief through "creative" statutory interpretation. By way of summary and conclusion we find that the grievor's appointment was improper for the period from November 4, 1987 to April it' 1989 and that she is entitled to a remedy in respect of that period. Usually, in cases of this kind a successful grievor would be entitled to an order appointing her to the classified service from which point the relevant corollary relief would flow. However, the circumstances of this case are unique in that the initial improper appointment became proper after the amendment to the Regulation. Nevertheless we do not believe that this should change the fact that she is entitled to relief in respect of that period of time when her appointment was improper. 'AZ no submissions were made in ~espect of this'aspect of the case we prefer simply to declare that the grievor was improperly appointment for the period from November 4, 1987 to April 1, 1989, to invite the parties to negotiate what, if any, relief should flow from that declaration. The Board remains seised of jurisdiction to resolve any difficulties that may arise in respect of the implementation of this award. Dated at LONDON, Ont. this 31s~ day of January , G. J. Brandt, Vice Chairperson "I Dissent" (dissent attached) J. Carruthers, Union Member .~. Scott, Employer Member - Dissent of J..Carruthers 340/91 OPSEU BROWARSKI I have had the opportunity of reading the decision of the majority in this case, and though I agree that the grievor is entitled to relief in respect of that period of time when her appointment was improper, I must disagree with the majoritY's finding that that period ended April 1, 1989. In my opinion, all of the grievor's appointments to ,. the unclassified service were improper. The amendment to the'Regulation creating Group 4 did nothing Go change that. 'This Board is obliged to follow its earlier ruling in Beresford 1429/86 (Mitchnick). The only way this panel can refuse to follow that decision is by finding it is manifestly incorrect or by saying that the reasoning in Beresford does not apply now that Group 4 has been created. The majority took the latter course. Where I disagree with the majority, therefore, is in their interpretation of Beresford and the Beresford line of cases. It is my opinion that their interpretation is wrong for the following r~asons. In Beresford at page 14, the Board considered section 8(1) of the Public Service Act, and the way in which the Legislature had provided for apPointments to the unclassified service: The section is in fact curiously worded to the extent- that it does raise the question of why the Legislature would limit the term of the initial appointment to one year, but then go on to per~itany 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 'proper' 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 there made it clear that the unclassified service was, according to section 8 (1) of the Public Service Act, for temporary appointments At page 11 'of its decision in Millev, the .Board said "The Board 'concluded that section 6 of Regulation 881 which the government had found it appropriate to pass thus served to inform as to the intent and purpose of section 8 of the Act The Board found, therefore, that it was the Act and not the Regulations which determines the scope of appointments to the unclassified service. The Regulations merely provide details. The Act requires appointments to the unclassified service to be for a temporary period. The Board in Bressette made that plain. At pages 17 and 18, it said "the authority of the Deputy Minister to appoint'to the unclassified service exists in the Public Service Act, s.8. The Beresford panel found that it is not an unlimited power...the limitation therefore appears to find its'source in s~8 of the Public Service Act itself. The _regulation 'appears only to flesh out the terms of that limited power...Onlythe legislature can change the Public Service Act." It is my opinion, therefore, that in ignoring the requirement that unclassified positions be for a temporary period, the majority of this panel has erred. Even after the creation of Group 4, positions in the unclassified service must be temporary for the appointment to be proper. I would have found, therefore, that all of the' grievor's appointments to the unclassified service were improper, and that she is entitled to a remedy for the entire period of her employment. The majority notes that even after the grievor was unsuccessful in ! her bid for .~lae positton t.n ~.lae ~.me 1990 ¢omt:~£tion, ~h.e ~loyer renewed her contract, and "was prepared to use the grievor's considerable knowledge and experience so that it could fill the position on a 24 hour basis until such time as a second competition could be held. Moreover, after the second competition in January of 1991, the grievor's contract was again renewed for a term from February 1, 1991 to April 1, 1991 at which time successful candidate in the second competition was available to begin." The employer's total disregard for th__f.S employee cannot go without comment. The employer was satisfied enough with her performance when it Was convenient to them. In renewing her contract even after she had supposedly failed to "measure up", they showed what a sham their' competition had been. They continued to use this employee's "considerable knowledge and experience". It would appear that when they were .finally challenged through the grievance pro.~.ess, they attempted to justify' their actions .after the fact by' relying upon t~e Creation of~ Group 4. The fact' that none of the grie'vor'.s' ' Contracts say she was being appointed to Group 4 also gives the appearance of an abuse of appointments to the classified service. For these reasons, I would have decided that this is an appropriate case for-the Board to +-appoint the grievor to the classified se[vice. Dated at -~-~/~ the ,~ day o~~"~w~7- ,1991.