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7o/91
~N THE M3,TT~ OF Mf]%RB~TRAT/ON
Under
THE CItOWNF~PLOYEEB COLLECTIVE BARGAZNING &CT
BefoEe.
TIlE GRZEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Boyce)
Gr~evor
- and - .
The Crown in Right of Ontario (Ministry of Labour)
Employer
BEFORE: P. Knopf Vice-Chairperson
E. Seymour Member
F. Collict Member
~0R THE A. Ryder
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR TH~ C. Rowan '
EMPLOYER Counsel
Fraser & Beatty
Barristers & Solicitors
July 11, 1991
DECISION
This case is yet another in a long tradition of
grievances launched by the Union to assert and/or determine
the rights of members who have been appointed to the
unclassified, service on a series of fixed term contracts.
This grievance was launched to enable the Griever to
challenge a job competition for a classified position of
Clerk/Typist OAG 8. At the time of the grievance, the
Griever was working as a clerk/typist and was the highest
ranking competitor in the competition. But, she was
appointed under a Group i Unclassified Service Contract and
the position was given to a permanent classified employee
with three years' seniority; The parties both agree that if
the Griever was properly appointed to the unclassified
service, she has no status to grieve this competition.
Hence, this preliminary issue arises as to the.proper status
of the Griever at the time of the grievance. The parties
have asked this Board to determine this issue alone at the
outset and, if necessary, to remain seized with the question
of remedy and any other related matters that may arise
thereafter under'the grievance. Thus, the purpose of this
decision is simply to resolve the preliminary issue.
The background of this particular case was set out in
an agreed statement of facts which reads as follows:
1. The Grievpr, Teresa Boyce, was first
appointed to the unclassified staff on a fixed
term, contract for the period from May 24, 1988 to
September 2, i988.
2. The Griever was employed on a series of
short-term contracts from May 24, 1988 through to
November 2, 1990 and performed clerical duties at
the OAG8 level at the Hamilton District Office of
the Ministry of Labour.
3. The Griever applied for a position in the
classified service in August 1990. This position
was that of clerk typist at the OAG8 level in the
Hamilton District Office.
4. Ms. Boyce was interviewed for this position
but did not win the competition. The present
grievance relates to the competition for this
position.
5. The Griever's last day of work with the
Ministry was November 2, 1990.
The details behind these facts' were given by way of
evidence. The Griever, Ms. Boyce, began working on her first
contract in Hamilton with the Industrial Health and Safety
Branch in May of 1988. This appointment came about as a
result of the management in Hamilton receiving notification
of having funds granted to them effective April 1, 1988 for
one clerical support position. These funds were awarded
pursuant to a Ministry request to Management Board and
thereafter an allocation of the funds to three.offices, one
of which was chosen to be Hamilton. A decision was then made
to hire a person on a three-day a week temporary basis while
management determined what job functions the new position
would take on so that a job description could be drafted and
a competition conducted. Thus, the Griever was hired on
~contract and these administrative activities were carried out
while the Griever served as clerical support in the office.
The Griever admits that she was told that this position would
be "temporary" when she was first hired in May of 1988.
indeed, she was told that she was'there to "fill in" until
the position was posted and'the competition run. Thus, while
the Griever "filled in", the new position was "identified" by
management and then designated to be a "clerk-typist". The
competition was run and the Griever applied. She was
unsuccessful and the position was filled on a permanent basis
in November of 1988 by someone else.
The Griever then went to work under a new contract
with the Health and Safety Support Services Branch. She was
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there until March of 1988. The Union takes no issue with the
nature'of this appointment.
Then, in April of 1989 the Grievor returned to the
Industrial Health and Safety Branch. At that time, the
Branch was responsible for two Regions and the Grievor was
assigned to be the clerical support for the Industrial Health
and Safety Officers and Managers of Region 11. Another
clerical OAG 8, Bev Prodeus, was responsible for Region 14.
Ms. Prodeus was a member of the classified staff with
approximately 13 years' seniority. The two worked together.
From April of 1989, Ms. Boyce worked in this Branch on a
series of "Group 1 Unclassified Service" contracts. They ran
as follows:
April 1989 to July 1989
July 1989 to September of 1989
September 1989 to November 1989
December 1989 to March 1990
April 1990 to June 199.0
June 1990 to September 1990
October 1990 to November 2, 1990
The reasons why the Grievor was hired back into the
Industrial Health and Safety Branch in April 1989 and the
history of her work there are relevant. Susan McAloney, the
Office Administrator in Hamilton, described how the Branch
had identified a need for "some additional support" because
the existing clerical staff was busy and managers wanted to
"down load" some of their own clerical responsibilities.
This need had been identified "not long prior to April 1,
1989" but Ms. McAloney could not be specific as to when. In
the meantime, there was an admitted need for two clerical
support staff and a desire to identify and create a new
position to accommodate the overall need. So again, a
decision was made to hire someone on a "temporary" basis
while management came to the determination of exactly what
would be needed so that a position could be'developed, a job
description drafted, a classification established, and a
competition run. During all this time, the Griever shared
the clerical work with Bev Prodeus and worked under the
series of contracts mentioned above.
Meanwhile, management came to the determination that
a position of "Operations Assistant" was required. This
position was to be partly clerical to relieve the overload of
the clerical staff and partly designed to handle some of the
minor telephone enquiries previously done by the managers.
Again, management took the time to develop the concept of .the
position, draft a job description and hold a competition for
the Operations Assistant while the Griever continued to
function under the unclassified contracts. The competition
was held, the Griever ¢'ompeted, but was not successful. The
position was awarded to Bev Prodeus in May of 1990.
The appointment of Ms. Prodeus to the position of
Operations Assistant'then left a vacancy in the permanent
classified position of Clerk/Typist. As Ms. McAloney then
· explained for management, "We needed the work done while we
ran a competition to fill the vacancy" so the Griever's
temporary contracts were again renewed. But this time,
unlike any other time, the Griever understood that the
she was doing as a Clerk/Typist was "permanent work" and she
was.being hired on a fixed term contract from June to
November of 1990 to enable time for the posting and running
of the competition for the permanent classified position.
The position was then advertised in. August or September of
1990, the competition run and the position filled in November
of 1990 by a classified employee with three years' seniority.
Thus, the Griever's last contract was not renewed after
November of 1990 because, in the words of' management, "the
vacancy no longer existed."
- 5 -
In cross-examination, Ms. McAloney was pressed about
the Operations Assistant functions and the competition. She
admitted that during the time the Griever worked on th~
series of contracts two people were needed in clerical
support. Indeed, the Griever and Ms. Prodeus shared the work
and it was ongoing Ministry work that had to be done into the
indefinite future. That was why management then decided to
create the permanent position of Operations Assistant. But,
when the competition was then held for the Operations
Assistant position, if Ms. Prodeus had not succeeded she
would have been kept on as the existing Clerk Typist OAG 8.
The Griever would then have no longer been required and would
have not had her contracts renewed after that competition.
The operative legislative framework for this case is
found in the Public Service Act of Ontario. The Act
provides:
1. In this Act, i
(a) "civil servant" means a person appointed
to tho service of the Crown by the
Lieutenant Governor in Council on the
certificate of the Commission or'by the
Commission, and "civil service" has a
corresponding meaning;
(b) "classified service" means the part of the
public service to which civil servants are
appointed;
(c)"Commission" means tho Civil Service
Commission;
***
(g) "public servant" means a person appointed
under this Act to the service of the Crown
by the Lieutenant Governor in Council, by
the Commission or by a minister, and
"public service" has a corresponding
meaning;
- 6 -
(h) "regulations" means the regulations made
under this Act;
(i) "unclassified service" means the part of
the public service that is composed of
positions to which persons are appointed
by a minister under this Act.
These definitions create a distinction between the
"classified" or "civil service" and the "unclassified"
service. The classified service is appointed under
sections 6 and 7 of the Public Service Act which provides
as follows:
6.-(1) When a vacancy exists in the classified
service, the deputy minister of the ministry in
which the vacancy exists shall nominate in writing
from the list of eligi.bles ~of the Commission a
person to fill the vacancy.
(2) The Commission shall appoint the person
nominated under subsection (1) to a position on the
probationary staff of .the classified service for
not more than one year at a time.
7. The Commission shall, if requested in
writing by the deputy minister, recommend to the
Lieutenant Governor in Council the appointment of a
person on the probationary staff of the classified
.service to the regular staff of the classified
service, and the recommendation shall be
accompanied by the certificate of qualification and
assignment of the Commission.
Authorization for the appointment to the "unclassified" staff
or service comes only from Section 8 of the Act which
provides:
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 whi6h
he presides.
- 7 -
The Regulations under the Public Service Act provide a
definition for the unclassified service. Regulation 8(8)(1)
subsection 6 provides:
6.(1) The unclassified service consists of
employees who are employed und¢~ individual
contracts in which the terms of employment
are set out and is divided into,
(a) Group 1', consisting of employee, s 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 assignment arranged
by the commission in accordance with
its program for providing temporary
help,
(iv) for fewer than fourteen hours per week
or fewer than nine full days ~n 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 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 o.~
work per week,
(B) 40 hours per week where the
position, if filled by a civil
servant, would be classified as a
position r~quiring 40 hours of work
per week,
(ii) for fewer than eight consecutive weeks
per year where the contract of the
employee provides that the employee is
- 8 -
to work either 36-1/4 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 twelvQ
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.
Effective March of 1989 the .Regulations were amended to
include a Group 4 within Regulation 6(1)(a):
(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 similar to, duties performed by
civil servants, and
(ii) who are net employees that belong to
Group 1, 2 or 3.
The Argument
Counsel for the Union argued that in order for a
· person to be a member of the unclassified staff, the Employer
must show that the appointment falls within Section 8 of the
Public Service Act as defined by Section 6 of Regulation 881
and as it has been interpreted by the Beresford decision, GSB
File 1429/86, November 17, 1989 (Mitchnick). Mr. Ryder says
that the difference that has been established between the two
types of appointments is a distinction between a.temporary
and a permanent type of position. It was stressed that if
the facts establish that a person is performing work of an
ongoing or a permanent nature, then the position cannot be
said to fall within that of the classified service. Counsel
stressed that the facts in this case establish that th.e
· Griever's initial appointments in May of 1988 and her
appointments after.April of 1989 were to positions requiring
- 9 -
ministerial work on an ongoing basis and that they ought to
have been filled on a permanent basis. It was said that if
the reason for an appointment is to fill a permanent, onpoing
employment requirement, the Ministry must do so by way of a
classified appointment. It was forcefully argued that
management should not be permitted to ignore the distinction
between classified and unclassified sorvices by postponing
the documentation, paper work and competition process. It
was argued that in both situations management knew or
recognized that a permanent position was required to fulfil
the work requirements and that the onus ought t~ be on
management to 'show why they should have any relief from
appointing someone to the position on a permanent classified
basis. Counsel for the Unidn relied on the following cases:
Beresford and Ministry of Government Services, supra, iMilley
and Ministry of Revenue, GSB File 1972/87, May 12, 1988
(Mitchnick), OPSEU (L. Beresford), Divisional.Court
Endorsement dated December 6, 1988, Bressette et al. and
Ministry of Natural Resources, GSB File 1682/87, June 29,
1989 (Wilson), OPSEU and Ministry of Natural Resoqrces, GSB
Files 1480/89 et al., March 25, 1991 (Kaplan),
Beresford/Milley and Ministry of Revenue, GSB Files 1429/86
and 1972/87, November 29, 1989 (Samuels), Wagner and Ministry
of Citizenship, GSB Files. 3§l/89 and 352/89, October 2'7, 1989
(Glover), Kozak and Ministry of Correctional Services, GSB
File 977/88, February 2, 1990 (Fisher), OPSEU
(Beresford/MilIey) Divisional Court Endorsement dated
November 28, 1990 and Econosult Inc., Supreme Court of Canada.
dated March 21, 1991. Thus, it was submitted that the
Grievor had been improperly appointed to the unclassified
staff.
Counsel for the Employer began by stressing the
importance of the amendment to the Regulations creating the
· "catch all" Group 4 employees to broaden the interpretation
that ought to be given to Section 8 of the Public Service
- 10 -
Ac__~t. The Board was reminded that this grievance was filed
after the amendment had been passed. It was said that the
amendment effectively wipes out the temporary/permanent
distinction identified in the Beresford decision and which
was relied upon so heavily in the Union's argument. Thus, it
was argued that whether the appointment was made to fill a
permanent need ultimately or at its inception no longer
matters because of the "Group 4" impact. On the facts of
this case, it was said that the appointment of the Griever
was meant to be temporary in itself'and to fill a temporary
need of management during the time it needed to assess its
needs and have an opportunity to post a position and run a
competition to hire what ultimately turned out to be a
permanent position. Thus, it was said that even if we were
to still accept the temporary/permanent distinction, the
facts would fall within Group l{a)(i) of Sec%ion 6.
Essentially, Counsel for the Employer was arguing that the
appointment to the Unclassified Service was proper because it
fell within Group 1 of Section 6 of the Regulations. In the
alternative, if the appointment did not seem to fall within
Groups 1-3, the effect of the creation of Group 4 would mean
that she must fall within Group 4 as the catch all and then
.be properly appointed'under Section 8 of the Public Service
Act.
In reply, counsel for the Union argued that if the
enactment of the Regulations and the creation of "Group 4"
are accepted to have %he impact that management urges upon
this Board, then the Regulations would have effectively
changed the meaning of Section 8 of the Act as defined by
Beresford. Counsel for the Union argued that the Beresford
decision has defined Section 8 "for all time" and that tho
Regulation cannot have the effect of amending the Act.
- 11 -
The Decision
The first relevant jurisprudence to tackle the
meaning and implications of the distinction between the
classified and unclassified appointments was Beresford.
There the Board reviewed Section 6 of the Regulations.
Section 6 of Regulation BB1, as pointed out above,
provides that "the unclassified service consists
of" contract employees and "is divided into" 3
. Groups, which are set out in detail in the
remainder of the section. That language is cast in
a way that is "exhaustive" (as opposed to
"inclusive"), and appears to provide, in a way
expressly authorized by section 30 of the Act, 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
~t. Those 3 "Groups" set out in the regulation,
on the other hand, cover a very wide rang~ of
situations, and obviously create a broad degree of
discretion in a minister when considering a
fixed-term appointment to the unclassified service,
rather than an open-ended appointment to the
classified. 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 wi!:hin the terms
of section 6. It may well be that in such cases no
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 will arise upon the
employer to present evidence of its own which would
demonstrate that the appointment did in fact fall
within one of the specified categ6rfes.
Writing again for the Board, Mr. Mitchick as Vice-Chair in
the Milley decision later dealt further with this distinction
and clarified his oarlier language when he said:
In simplified terms, for the purposes material
here, the "classified" staff are the regular or
"permanent" employees of the governnlent, and the
-12~
"unclsssified" staff are the employees hired on
fixed-term contracts. Those latter contracts, by
their own terms, "self-destruct" on their expiry
date.
Further, the Milley award explains at page 11 that
"Regulation 6 served to inform us to the intent and purpose
of Section 8 of the Act and that the government was required
tO satisfy the Board that an appointment to the 'unclassified
service' fell within one of the categories stipulated by the
government itself in its Regulations." All this was endorsed
by the Divisional Court in its consideration of the two cases
when it concluded:
... We see Regulation 6 as elaborating upon and,
perhaps .defining the unclassified service to which
section 8 refers (Be'resford/Milley Divisional Court
supra).
As recognized in Wa~ner, supra, the Beresford/Milley
decision established that the Ministry's power to appoint to
the unclassified service was limited to those types of jobs
set Out in the Groups listed in Regulation 6. Jurisprudence
thereafter looked at the nature of a griever's job, the
duration of his/her appointment and to what extent it could
"fit nicely" (see Wa~ner, supra, page 12) into the categories
or Groups listed in Section 6. A trend towards "permanent"
or "ongoing" or "continuous" types of work was accepted as
falling within the language of Section 6. See W~gner, supra,
and the Union grievance, supra. However, the main test has
always been whether the job fell within the definition of the
Groups set out in Section 6 of the Regulations as they help
to define Section 8 of the Act.
But the difficulty of determining when and if a
position can be properly categorized was recognized in Wagner
· when it said at page 12:
Therefore, following the reasoning im~ Beresford, we
conclude that the 3ob in which the Grievor was
employed was a job that ought to have been filled
by an appointment under sections 6 and 7 of the
Public Service Act. This may not have been the
case when Welcome ROUSe opened, because it is
possible that the Employer may not have known that.
the job was going to be as permanent as it was.
But if not right from the beginning then at some
later stage the Employer ought to have concluded
that the job was not one to which an unclassified
employee could continue to be appointed. At some
point in time, it came under an obligation to post
the position under the provisions of either
Article 4 or Article 60 of the Collective
Agreement. Having failed to do so, then, we are in
the position of assessing the consequences that
flow from that failure, and what if any benefits
accrue to the Grievor.
Both parties suggest that the gov¢:rnment passed the
amendment to Regulation 6 adding Group 4 precisely to avoid
these dilemmas. It was argued that the government has
attempted, through its regulatory powers, to avoid the impact
of the Bcresford type of review of appointments by creating
the "catch all" category and thus wipiag out the
permanent/temporary distinction.
We must now apply these principles to the facts at
hand. At the outset, it must be restated that the purpose of
this award is to determine the Grievor's status or
eligibility to grieve a job competition held in the faill of
1990. The grievance was filed in October of 1990. Leaving
aside the propriety of her initial appointment in May of
1988, the status to have this Board hear the grievance
depends upon her status in October of 1990 and therefore must
be determined under the lepislative framework in place as of
that time. Thus, the Group 4 category would have been in
place ·
· The Employer would have us accept that the Grievor's
appointment fell within Group 4 and thus within Section 6 of
o 14 -
the Regulations and Section 8 of the Public Service Act,
therefore compelling a conclusion that she was properly
appointed to the unclassified staff. But, the meaning and
'impact of the enactment of the amendment creating Group 4 may
be quite profound. If it means what the Employer would have
us accept in this case, any Beresford type of analysis by
this Board of unclassified appointments would be effectively
eliminated. OPSEU would have' extremely limited opportunites
to challenge unclassified appointments. The distinction
between the nature of appointments is of immense importance
because the unclassified service has far fewer rights under
the collective agreement. The government's practice of
hiring unclassified staff on a long-series of fixed term
contracts has attracted the-bitterness of OPSEU and criticism
from this Board, the Union and elsewhere. Therefore, if the
creation~ of the Group 4 category has the effect of giving
"carte blanche" to management by virtue of its.unique
legislative power, this is indeed a profound and significant
factor.
.While we were invited to resolve or answer the
question of the impact of the creation of Group 4, we have
decided to decline to do so for two reasons. Firstly and
most importantly, as explained more fully below, the facts of
this case do not turn on that issue and we are not required
to make. that analysis to reach a solution in this case for
this particular grievor. Secondly, without intending to
imply any criticism of counsel, the parties here did not
provide us with as full or clear an analysis of the issues as
may be required for its proper determination. Therefore,
while we have defined the issue of the Group 4 problem, we
shall leave it for another panel of this Board to deal with
on a more appropriate set of facts and with the benefit of
further argument and assistance from the parties.
As alluded to above, the facts here do not support
any finding that the Grievor can be considered a Group 4
appointment. Surely, given the potential impact of finding
an appointment would fall within any definition of Group 4,
the onus must be on the Employer to bring the appointment
within that Group. On the facts of this case, every service
contract signed by this Grievor was entitled "Group 1
Unclassified Service Contract." Obviously, the mere title of
the document cannot completely govern the nature or status of
an appointment, but it is a significant factor. But that,
coupled with the fact that the Employer offered no evidence
that the appointment was not intended to be anything other
than a Group 1 appointment, is significant. But much more
importantly (even if it' is to the Grievor's immediate
disadvantage) all of her appointments can be s~en to "fit
nicely" into the sub-categories set out in Group 1. itself.
If one looks at th~ Grievor's first contract to work
in the Industrial Health and Safety Branch in a clerical
capacity in May of 1988, the evidence establishes she was
hired to "fill in" until a permanent position could'be
formulated, posted and filled. It is true, as the Union
stresses, that the need to do the work existed on an ongoing
basis. But, at the time of the appointment, the actual
position had not been formulated nor had the competition been
conducted. The intent of the hiring of the Grievor was
clearly and simply to "fill in" on a temporary basis for a
fixed term until the permanent position was created and
filled. There is no suggestion of mala fides or a devious
intention to avoid making a permanent appointment earlier
than necessary. At worst, the Employer can justifiably be
criticized for beinG slow in the process of formulating and
posting the job. But the Grievor's appointment falls
squarely within or "fits nicely# into the Group l(1)(a)
category of being employed "on a project of a non-recurring
kind".
The Grievor's second set of contested appointments is
similar. She was first hired on a temporary basis back into
the Industrial Health and Safety Branch while management
assessed its needs and then formulated and posted the
Operations Assistant position. Thereafter, she served on a
temporary basis and filled in on an "interim need" of a
non-recurrin~ kind while maQagement arranged the competition
to fill the vacancy created in the Clerk/Typist position when
Ms. Prodeus took over the Operations Assistant position.
Again, management can be criticised for taking so long to.
prepare for and run competitions. These delays only invite
union skepticism and inevitably result in grievances such as
this. But the delay in itself does not erase the fact that
the hiring was in essence to fill a defined and recognizable
personnel requirement on a temporary, interim basis and as
such can be accepted as a Group 1(t) situation of a "project
of a non-recurring kind".
Thus, the facts persuade us that the Grievor's
appointments all fall within Group 1 of Section 6 of the
Regulations which defines the type of appointments a Minister
may make to the unclassified staff. Given this finding, we
must· conclude that her appointment therefore falls squarely
within the unclassified staff. As conceded by the Union, as
a member of the unclassified service she has no entitlement
- 17 -
to grieve the competition for the position of Clerk/Typist.
Thus, the grievanc~ mus~ be dismissed.
DATED at Toronto, Ontario this 3r4 day of October,
1991.
Paula Knopf -Vice-Chairperson
£. SeYmour- ~ember
F.'~°'l'lict -, Member