HomeMy WebLinkAbout1991-0333.Singh.92-01-21 ONTARIO . ' .' EMPLOYES OE L.A COURONNE
CROWN EMPLOYEES DE/. 'ONTARIO
- GRIEVANCE ' C,OMMISSlON DE
SETTLEMENT~ REGLEMENT
BOARD DES GRIEFS
?BO DUNDAS ST"~E~ET WEST, SUITE 2~00, TO~ONTO, ONTAR[~O, MSG ?ZB TELEP'HONE/T~:L~'I:~ONE: (415) 326-1388
TaO, RUE OUNDAS OUEST, BUREAU 2100, TORONTO [ONTARIO). MSG ~Z8 FACSiflaILE/TET..-~COI~IE : (4 ~6) 32~- 1396
333/9[
ZN THE MATTER OF I~N~ZTI~ATZON
Un,er
THE CRORN'E~PLOYEE~ COLLECTIVE B]~IG~ZNZNG ~CT.
BefO~
~ GRZ~CE 8BTT~~ ~
OPSEU (Stngh)
6r~evor
- ~d-
The Cro~ in Right of Ontario
(Minist~ of the Attorney General)
BEFOg: N. Dissanayake Vice-Chai~erson
E. Se~our Me. er
D. Montrose Me. er
FOR ~ K. ~itaker
GRI~OR Counsel
Ryder, ~itaker, Wright & Chapman
Barristers & Solicitors
FOR THE M. Fleishman.
EMPLOYER Counsel
Crown Law Office civil
Ministry of the Attorney General
~E~ING August 16, 1991
2
'° DECISION
The grievor, Mr. Pritam Singh, a member of the
unclassified service, claims that he has. been dismissed
without just cause and seeks reinstatement with full redress.
The employer takes the position that the grievor was not
dismissed at all and that what occurred was a decision by the
employer not to renew his fixed-term contract which had
expired on April 1, 1991. Counsel therefore s~bmits that this
'Board lacks jurisdiction to entertain a grievance relating to
a non-renewal of a contract of an unclassified employee.
The factual background material to this issue was
presented to. the Board on 'agre~_ment. The grievor co_mm, enced
his employment as a member of the unclassi.fied service with
the employer on June 15, 1987. As a result of a number of
limited term contracts his employment continued uninterrupted
until the last such contract expired on April 1, 1991. At
that time his employment contract was not renewed.
Throughout his period of employment the grievor worked
at the Computer and Telecommunication Services Branch of the
Ministry of the Attorney General. In the initial period his
duties primarily consisted of the repair of personal computer
hardware, although he also had some duties 'providing advice
to users. In all of the contracts other than the last, the
3
grievor's positibn (class title) was designated-as Electronics
Technician II.
The evidence is that the demand for hardware repair
services declined gradually over the period of the grievor's
employment at the Branch. By the time the last cont=act was
executed, there was inadequate hardware technician work to
support a 'full-time-position. Accordingly, while the grievor
was offered a further limited-term contract from April 1, 1990
to April 1, 1991, this last contract was different fuom his
previous contracts in several significant aspects. First, the
position (class title) was changed from Electronics Technician
II to Systems'Officer I. The duties ~f the latter posit~on
were also significantly different in. that whereas as
Electronics Technician II the grievor primarily performed
duties relating'to hardware support, as Systems Officer I that
work consisted only 40 percent of his Job. Fifty percent of
the systems Officer I position duties involved special
projects requiring sgecialized technical expertise or input.
The latter position also involved significant duties relating
to computer software and was not limited to personal
computers.
Along with the change in class title and duties, the
grievor's hours of work also changed under the last contract.
Whereas he previously worked 40 hours per week and was paid
on an hourly ra%e basis, under the last contract his weekly
hours were reduced to 36 1/4, and he was paid a weekly rate,
which resulted in the grievor earning more per hour of work.
Under the last contract he worked at the Help Centre, a
special project of the Branch. As a result his reporting
relationship was also different.
The evidence is that initially there had been two
classified employees working at the Help Centre, Ms. Rita
Heber and Ms. Maria Chudkov. ~ie latter resigned during the
summer of 1990 and a vacancy was posted for a System Officer
I position. The grievor and a Ms. Kramer applied. The
successful candidate in the c~mpetition was Ms. Kramer. A
third classified employee who worked at the Help centre, aMt.
Ramprasaud, left his job in December 1990. His position was
not filled by the employer.
The employer filed with the Board the position
sDecification for the two Systems Officer I classified
employees who worked at the Help Centre, Ms. Hebert and Ms.
Kramer. That indicates that 55 percent of the duties of those
employees involved provision of training and assistance to
users for micro computer and work processing software
products. It is common ground that the grievor's duties at
the Held Centre did not include this type of training
function.
5
The Board's early decisions appear to have concluded that
the Board lacked jurisdiction to deal with a non-renewal of
an unclassified employee's employment contract under any
circumstances, e.g. see, Re Humeniuk, 614/84 (Springate) and
Re Henderson, 506/.85 (Verity). Then' Came the now well-known
decision in Re ~eresford. 1429/86 (Mitchnick), (application
for review dismissed by the Ontario Div. Ct.) and a line of
decisions following its reasoning.
Counsel for the employer recognizes that following the
Beresford decision, in order to succeed in an argument that
the Board lacked jurisdiction to d~al w~th a non-reneWal or-
a contract of an unclassified employee, the employee must have
been properly appointed to the unclassified service in the
first place. -.However, counsel argues that the Beresford
reasoning does not apply in this case for two reasons. First,
it is counsel's position that the-grievor was not performing
the same or substantially the same duties as the classified
employees, as was the case with the grievors in Beresford and
other cases which followed Beresford. Secondly, it is
submitted that unlike in Beresford the grievor was properly
appointed to the unclassified service.
Counsel for the employer points out that in all of the
cases in the Beresford line, the Board had found that the
6
grievors did th~ same work as the classified employees. In
Beresford itself at p.3 the Board states that "there is no
difference in either the work assignments, duties or selection
of work stations or shifts between the "classified" and the
"unclassified" staff. In Re Bre~sette, 1682/87 (Wilson) at
.p.3 the B~ard concludes that the grievor "worked alongside
classified attendants. She did the same work as classified
attendants". Counsel contends that the grievor's duties
differed from those of the two classified Systems Officer I
employees in two important aspects. Firstly, 55% of their job
r~lated to training, whereas the grievor had no training
resDonsibilities at all. Secondly, counsel argues that the
bulk of the support requests handled by the classified staff
related to'computer software, whergas the bulk of the calls
responded to by the griewor related to hardware.
Employer counsel goes on to submit that even if the
grievor had been performing the identical duties as the
classified employees, the Ber~sford rationale does not apply
in this case. He submits that in that case the-Board had
concluded that the grievor was improperly appointed to the
unclassified service, because she did not fit into any of the
3 groups of unclassified employees recognized by section 6(1)
of Regulation 881 under the Public Service Act. Subsequent
to the Beresford decision, and in counsel's view as a reaction
to the Beresford decision, section 6 of the regulation was
7
amended by addihg a fourth group of unclassified employees.
Section 6(1) of the regulation before the amendment read as
follows:
6.(1) The unclassified service consists of
employees who are employed under individual
contracts in which the terms of employment
are set out and is divided into,
~roup 1, consisting of employees who' are
employed,
(i) on a project of a non-recurring kind,
.(ii) in a professional or other special capacity,
(iii) on a temporary work assignme~ arranged
the commission in accordance with its
program for providing temporary help,
(iv) for fewer than fourteen hours p~r week or
fewer than nine 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
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) 36-1/4 hours per week where the
position, if filled by a civil servant,
would be classified as a position
requiring 36-1/4 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,
(ii) for fewer than eight consecutive weeks per
year where the contact of the employee
provides that the employee is to work either
36-1/4 hours per week or 40 hours per week;
8
(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 36-1/4 hours
per week or 40' hours per week. (Emphasis
added)
Effective March 13, 1989, section 6(1) was amended by
adding a fourth group under subsection (d) as follows:
(d) Group 4, 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 s~mllar to, duties
performed by civil servants and,.
(ii) who are not employees that belong to group
1, 2.or 3. ~
Counsel argues that the grievor clearly fits into this
new category even if he performed the same duties as the
classified employees. Therefore since he was properly
appointed to the unclassified service counsel submits that
Beresford does not apply in the ~ircumstances, and the grievor
ceased to be a public servant under section 9 of the Public ~
Service Act, when his contract expired on April 1, 1991.
Counsel for the grievor disagrees that there was any
significant difference between the types of support requests
handled by the grievor and the classified employees who worked
at the Help Cent=e. It is the grievor's position that the
9
Board should be-looking at the employees' duties broadly and
not at specifics. What is relevant is that the grievor as
well as the classified systems officers responded to systems
related inquiries. The fact that the nature of those calls
may have varied somewhat, according to counsel is irrelevant.
Therefore, counsel submits that the Board should conclude
that, except for the training related 'duties, the grievor
performed the same duties as the classified employees.
Counsel for the grievor reads t~.e Beresford decision
somewhat differently than employer counsel. According to him,
the Beresfo~ decision contains a two part test to determine
whether an appointment to the unclassified servic~ is proper.
it is his contention that f~rs~ and foremost such an
appointment must comply with section 8 of the Public Service
Act. Once that section is complied with, an appointment, must
come within one of the groups enumerated in section 6(1) of
the regulation.
Counsel submits that there is implied in section 8.of the
Act a requirement that an appointment to the unclassified
service must be to a type of position "which is not part. of
the permanent and on-going work of the Ministry". According
to counsel, the Beresford and Bressette decisions recognize
this requirement, in addition to the requirement that the
appointment must fit one of the groups in section 6 (1) of
10
Regulation 881."Counsel argues that the Board Should conclude
that the Computer and C6mmunications Branch was a permanent
part of the Ministry and the Help Centre where the grievor
worked under his last contract, was part and parcel of the
ongoing service provided by that Branch. Since there is an
ongoing need to respond to inquiries from users, the Board
should conclude' that the Help Centre is a permanent part of
the Ministry "which will be around for a long time".
With regard to the amendment to the regulation, counsel
Submits that the Board should avoid interpreting the new
subsection as allowing an appointment which is not permitted
by section 8 of th~ Act. He relies on R~in~ v. Slatpr Steel
.Industries Ltd. (1971). I O.R. 760 as..standing for the
proposition that a regulation must be interpreted in
accordance with the intent of the legislation under which the
regulation was eaacted. On that basis, counsel argues that
the new group 4 in the regulation should not be interpreted
as allowing an appointment to the unclassified service where
the work to be performed is a permanent part of the employer's
ongoing operation. For the foregoing reasons, it is counsel's
position that the Board should conclude that the grievor's
appointment to the unclassified service was improper.
While we have set out the parties' submissions in some
detail, all of those need not be dealt with in order to
determine the ~ssue at hand. The grievor'~s argument is
premised on the position that the mere fact that an
appointment to the unclassified service fits into a group
enumerated in the regulations does not by itself'make that a
proper appointment to the unclassified service. It is
submitted that there is a further requirement that the
appointment is not to a position which a part of the ongoing
or permanent service offered by the employer.
In Beresford the vice-chairperson interpreted the scope
of section 8 of the Public Service Act as follows:
The section is in fact curiousl~ worded, to the
extent that it+ does raise the- question.why the
Legislature would limit the ter~ of the in'i'tial
.. appointment to one year,' but then go on to permit
any extension bf that term o~ 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 somethina about the ~ob in its
initial concpDt~on which d~stinguishes it from the
normal "permanent" position in the classified
service. More important to us, however, is the
wording adoptea by the Civll Service Commission
itself in enacting, on the approval of the
Lieutenant Governor in Council, section 6 of
Regulation 881 under the ~qblic Service Act. We
note, first of all, that section 30 of the Act
expressly empowers the Commission to make
regulations" ...
(w) respecting any matter necessary or advisable
to carry on effectively the intent and
purpose of (the) Act."
Section 6 of Regulation 881, as pointed out above,
provides that "the unclassified service consists of"
contract employees and "is divided into" 3 groups,
-12
which are s~t out in detail in the remainder of the
section. That language is e~st in a way that is
"exhaustive" (as opposed to "~nclusive"). and
appears to Dr°vide. in a wav expressly authorized
by section 30 of the Act. a definition of the kind
of situation contemplated b~ inclusion'of a DoWer
of appointment to the unclassified service by way
of section 8 of the Agt. Those 3 "Groups" 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 ~ minister when
considering a fixed-term appointment to the
unclassified service, rather than an open-ended
appointment to the classified service. 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 ~o 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 wii1 arise upon the employer to present
evidence of its own which would demonstrate't hat the
appoin%ment did in fact fall. Within one of the
specified categories.
This is one of those cases. The position to which
the grievor was appointed clearly was not
"seasonal", had no different hours or other
conditions of employment than the similar positions
to which persons had been appointed to the
,classikied service, and all of the evidence we have
as to the temporal nature of the position points to
the contrary of it being of a "non-r. ecurring" or
"temporary" kind of position. Yet, as discussed,
we are compelled~to conclude that section 6 of the
regulations, by its+ very terms, requires an
appointment to the unclassified service under-
section 8 to fall within one of the categories set
out in the regulations. Counsel for the employer,
in light of-the fact that no evidence of the
employer's intentions or perceptions with respect
to the grievor's position was called, urged the
Board to assume that the limited-term appointment
would not have been made without the kind of "good
reason" which section 6 of the regulations itself
sets out.
We are not prepared to do that. Accordingly, we
must find on the evidence that we do have that the
position to which the grievor was appointed was not
one which falls within any of the various situations
encompassed by the 3 Groups set Out in the
regulations, and as contemplated by section 8 of
the Public Service Act. We find, therefore, that
the purported appointment of the grievor to the
"unclassified" as opposed to the "classified"
service was improper.
(Emphasis added)
We do not find anything in this passage or anywhere else
in the Beresford decision, a requirement as claimed by counsel
for the grievor. The Board states that there must be
something about the Job '"in its. initial conception" that
distinguishes it from the normal "Permanent" position in the
CiaSsified service.' That' clearly refers to. the provision in
section 8 that the first appointment must be for a period of
not more than one year. The Board goes on to express its view
that section 6(1) provides an exhaustive definition of the
kind of situation contemplated by section 8 of the Act. The
observations of the Beresford panel .about the similarity
between the grievor's position and those of persons appointed
to the classified service, were made at a time when subsection
(d) of section 6(1) did not exist. There can be no doubt that
the rationale for the Board's finding that the grievor's
appointment was improper was the fact that it did not fit into
any of the categories in section 6(1) as it then existed.
Similarly '~e find nothing in Bressette' to support a
conclusion that there is any other requirement in addition to
compliance with section 6(1) of the regulation. In fact in
Bressette, the Board quotes from the decision of the
Divisional Court in dismissing an application for judicial
review of the Beresford decision. Mr. Justice Osler in
rejecting the argument that section 6 of the reguiation is in
conflict with section 8 of the Act states:
It .was submitted that these two enactments are in
conflict. That is not the view of this court'and
we see Regulation 6 as elaborating uRoB aDd~ perhaps
defining the %knc~ass~ied service to which section
8 refers.
(emphasis added)
'In the passage quoted (supra)-; the Beresford panel also'
recognizes that section 6(1) of the regulations 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".
A review of the Beresford line of cases indicates that
the rationale for the Board's conclusion that the appointment
to the classified service was improper, was the fact that it
did not fit 'into any of the categories in section 6(1) of
Regulation 881, which "defined" what constituted the
unclassified service referred to in section 8 of the Act.
Since the categories then enumerated in section 6(1) related
15
to temporary, n6n-recurring or seasonal types'of positions,
the Board's comments in the various decisions about the
distinctions or similarities between the work performed Dy
employees in the unclassified and classified services
respectively are understandable and indeed quite appropriate.
However, the Board in determining the present grievance
is faced with the new fourth category of unclassified
employees included in subsection (d) of section 6(1). There
is no ambiguity in this new language. Firstly, it clearly
states that the unclassified service includes employees who
'are appointed pursuant to section 8 of the Act, whether or not
they perform the same or similar Work as that' performed by
civil'servants (classified service). Secondly, it states that
those employees who meet the first requirement will form Dart
of the unclassified service even if they do not qualify under
groups 1, 2 or 3 of the regulation.
The effect of the addition of the new category is
dramatic. Whereas earlier groups (a)(b) and (c) contemplated
temporary, non-recurring or seasonal types of employment, now
it is expressly stated that there can be an appointment to the
unclassified service even if the employee is performing the
same work as classified employees. Since classified employees
in the public service perform permanent work, it follows that
an employee performing similar permanent work can also be
16
appointed to t~e unclassified service. The' employer can
appoint an employee to do the same or similar work as the
employees in the classified service, regardless of whether or
not the employee is doing temporary, non-recurring or seasonal
work as contemplated by the first three groups in section
6(1), provided only that the appointment is made pursuant to
and in compliance with, section 8 of the Public Service Ac~.
That section reads as follows:
8-(1) A minister or any public servant who is
designated in writing for the purpose by him mpy
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 be~n made.by
his minister.
What are the requirements in section 8? First, the
appointment must be made bya Minister or a designated public
servant. Secondly, the appointment must be made in writing.
Thirdly, the appointment must be to a position in the
unclassified service in any. ministry over which the Minister
or designee presides. And finally, the appointment must be
for a period of not more than one year on the first
appointment and for any period on any subsequent appointment.
We can find nothing in section 8 limiting appointments ~o the
unclassified service in any other way. While there is a
limitation of the duration of the initial appointment to one
17
year, there is ~othing in section 8 limiting ~ppointments to
certain types of positions only.
Section 1 (i) of the Public Service Act defines
"unclassified service" as:
"Unclassified Service" means the part of the publio
service that is composed of positions to which
persons are appointed by a minister under this Act.
On plain reading, this definition also does not appear
to suggest that positions in the classified service are
limited to those ~not part of the government's permanent
operation.
There is no doubt that t~e g~ievor:s appointment meets
the requirements of section 8. There is no doubt also that
the grievor's appointment fits into the fourth group in
section 6(1) even if he performs the same duties as classified
Systems Officers, as he claims he does. Nor is the
appointment in conflict with the definition of unclassified
service in section l(i) of the Act.
In Beresford, the Divisional Court concluded that there
was no conflict between section 8 of the Act and regulation
section 6(1) which then consisted of only 3 groups. We cannot
see any conflict between section 8 and the fourth group
either. The Act in the definition only focuses upon the
18
section 6 (1) o'f the regulation. It follows that his '
appointment to the unclassified service was proper.
Section 9 of the ~ublic Service Act states:
9. A person who is appointed.to a position in
the public service for a specified period ceases to
De a public servant at the expiration of that
period.
Under the circumstances, and as a result of the foregoing
findings of the Board, under section 9, the grievor ceased to
be a public servant upon the expiry of his contract on April
1, 1990.
It follows therefore that the Boar~'has no jurisdiction
to deal with the present grievance and accordingly it is
hereby dismissed.
Dated this 21~tday of January, 1992 at Hamilton, Ontario.
N. Dissanayake
Vice-Chairperson
"I Dissent" (dissent
a~ached)
E. Se~our
Member
D. Montrose
Member
RE: GSB File'333/91 : OPSEU (Singh)
and
the Crown in Right of Ontario
(Ministry of the Attorney General
DISSENT - EDWARD E. SEYMOUR, Employee Nominee
I have read the Majority Award and find I cannot concur with its
finding.
The Majority states there is no ambiguity in the new language in
Subsection (d) of Section 6(1) of Regulation 8:81 of the Public
Service Act. Whil'e the language contained in the new subsection
may in itself he quite straight forward, it does run directly
counter to what the Be~esford 1429/86 panel interpreted 6(1) of
Regulation 8:81 to mean. The categories addressed in Section 6(i)
in the Beresford Decision did, as the majority contends, relate to
a. temporary, non-recurring, or seasonal 'type of position.
In Milley (GSB 1972/87) the panel was more explicit when it wrote:
fn simplified terms, for-the purposes material
here, the "classified" staff are the regular
or "permanent" employees of the ~overnment,
and the 'unclassified'" staff are the employees
hired on fixed-term contracts.
The inclusion of the 4th category %o Section 6(1) changes what
appeared to be the original intent of the section. While the
,Provincial Cabinet most assuredly has the right to amend the
Regulation as it deems proper, that right must be tempered by a
requirement that amendments be in harmony with the Statute.
Subsection (d) does not meet that requirement.
An amendment normally adds to, modifies, or deletes something in
the original regulation without altering the intent.or meaning of
the Statute. The addition of subsection (d), in 'my opinion
completely alters the original intent of Section 8 of the Public
Service Act.
Section 8.f of the Public Service Act does provide for the
requirement that the first appointment of a public servant to the
unclassified service be for a period limited to one year. The
Beresford panel, and succeeding panels, interpreted that to mean
that Jobs in the unclassified service were temporary, non-recurring
or of a seasonal nature. The addition of Subsection (d) alters
that interpretation and is not in conformity with Section 8 of the
Public Service Act.
For these reasons I would have ruled that the grievor's appointm!ent
did not meet the req~irement of Section 8 of the Public Service Act
and that the Board has %he jurisdiction to deal with the grievance.
Seymour, Member