HomeMy WebLinkAbout1991-0745.Khan.93-02-25~ ONTARIO EMPLOY~'S DE LA COURONNE
~ . 'CROWN EMPLOYEES DEL'ONTARIO
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
IBO DUNDAS STREET WEST. SUJTE 21~, TORONTO. ONTARIO. M5G ~Z8 TELEPHONE/T~L£PHONE: [~76) 326-~388
t80, RUE DUNDAS OUEST, BUREAU 2~00, TORONTO (ONTARIO). MSG ~Z8 FAC$1MILE/T~L~COPlE .. (4~6) 326-r$96
745/91
IN THE MATTER OF AN ARBITRATION
Un,er
THE CROWN EMPLOYEES COLLECTIVE BARGAXNXNG ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Khan)
Grievor
-
The Crown in Right of Ontario
(Ministry of Housing)
.Employer
BEPORE: S. Stewart Vice-Chairperson
T. Browes-Bugden Member
F. Collict Member
FOR THE A. Ryder
UNION Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE C. Slater
EMPLOYER Senior Counsel
Management Board of Cabinet
October 1, 1991
January 22, 1992
February 13, 1992
DECISION
Mr. A. Khan alleges that he was unjustly dismissed
from his unclassified position with the Ministry of
Housing. On the second day of hearing Ms. T. Browes-Bugden
replaced Mr. W. Rannachan as the Union member of the panel.
The parties consented to this substitution. Following the
hearings in this matter counsel submitted written argument
to the Board.
Mr. Khan commenced his employment at the Housing
Supply Policy Branch of the Ministry in April 1986 in a Go
Temp position. Mr. Khan obtained an unclassified
appointment as a data entry clerk for the term March 2,
1987 to August 28, 1987. There were a number of renewals
of this contract within this branch, the details of which
will be addressed below. Mr. Khan did not receive a
renewal of his contract following the expiry of a contract
on March 31, 1991. The Union alleges that Mr. Khan was
improperly dismissed and relies on Beresford, 1429/86,
(Mitchnick) and the decisions that have followed it in
support of his position. Alternatively, the Union claims
that Mr. Khan,s applications for classified positions were
not fairly considered. The Union's position in this regard
was based on the existence of a dispute about the proper
description and comparable classification of Mr. Khan's
position for the period April 1, 1990 to October 19, 1990.
Mr. Ryder's submission was that this dispute resulted in
the grievor's applications not being fairly considered.
With respect to this latter position we note that there was
some suggestion in Mr. Ryder's opening remarks of bi~s
against the grievor on the basis of age in connection with
one particular application. The person to whom statements
indicating bias against Mr. Khan were attributed denied
making those statements and he was not cross-examined in
this regard. This matter was not pursued by the Union in
argument and accordingly we will not address this
particular'aspect of the Union's claim that Mr. Khan's
applications for other positions in the Ministry were not
fairly considered. The remedy sought in connection with
both claims is that the grievor be appointed to the
classified service and that he be compensated for his
losses in connection with ~he termination of his
employment.
As previously noted, Mr. Khan commenced his emplolrment
as a Go-Temp in the Housing Supply Policy Branch performing
the work of a data entry clerk. He obtained the first of
five successive unclassified contract positions commencing
March 7, 1987. Mr. Khan's position was equated with an OAG
4 classification. Mr. Khan came to assume duties in
addition to those of a data entry clerk which resulted in a
request on his part that his position be equated with a
higher classification. This was the subject of some
correspondence and discussion between Mr. Khan and members
of management. It was initially decided by management that
his duties were appropriately equated with an OAG 7
position however this was not satisfactory to Mr. Khan and
the matter was pursued further. The ultimate result, as
set out in a memorandum dated March 22, 1991 fromMr. C.
Sparling, Director, Strategic Planning and Research Branch,
was that for the period April 21, 1990 to October 19, 1990,
Mr. Khan's position was equated with an OAG 9 level and he
was compensated retroactively. Mr. Khan remained of the
view that this was not an adequate level of compensation.
However, the result was not changed.
In 1990, the Ministry of Housing went through a
process of restructuring which included the re-organization
of its policy section. This re-organization resulted in
the branch in which Mr. Khan had been employed, the Housing
Supply Policy Branch, being disbanded. This process took
place between June and October, 1990. One of the newly
created branches was the Housing Policy Branch. Ms? C.
Parrish was appointed Director of this Branch. Mr. Khan
obtained a further contract for the term April 1, 1990 to
March 31, 1991. He was assigned to the newly created
Housing Policy Branch in the fall of 1990. Mr. Khan
testified that he continued to carry out some of the duties
that he had performed previously in addition to newly
assigned duties which included co-ordination of committees
and drafting correspondence. There was some dispute about
the precise nature of those duties however it unnecessary
to resolve that dispute in order to determine this
grievance. Mr. Khan's position was initially equated with
the OAG 4 classification however it was subsequently
upgraded to OAG 6. Mr. But, Mr. Khan's new supervisor,
testified that it was as a result of his efforts that Mr.
Khan's position was upgraded. Ms. Parrish testified that
she advised all contract employees, in61uding Mr. Khan,
that their contracts would not be renewed on their
termination. ~owever, there were a number of permanent
positions available in the new structure which they could
apply for. Mr. Khan's evidence was that he was aware that
his contract "may not" be renewed, but that he was told by
his immediate supervisor, Mr. N. But, to "keep his fingers
crossed". He stated that he was not finally made aware
that his contract would not be renewed until the last day
of his employment. Mr. But testified that he specifically
advised Mr. Khan that his contract would not be renewed.
He stated that he pursued the possibility of a renewal but
that he was unsuccessful. He further testified that he
encouraged Mr. Khan to apply for other positions, and that
he made a comment about "keeping fingers crossed" in
connection with wishing Mr. Khan luck in obtaining another
position. Ms. Parrish also testified that she encouraged
Mr. Khan to apply for permanent positions that had been
created as a result of the re-organization. She further
advised him that he would be given an interview for any
positions he applied for in her department. Mr. Khan
applied for a number of positions both within and outside
the Ministry of Housing however he was unsuccessful in
obtaining a position. He was offered an interview only
with respect to two positions for which he applied, both of
which were in the H~using Policy Branch. He was
unsuccessful with respect to one of those positions and he
withdrew his application in connection with the other
position prior to his interview. The reason that Mr. Khan
withdrew his application with respect to this latter
position was that he felt that he would not be awarded the
position as another candidate was sure to obtain it and he
would not beseriously considered for it because of his
age. Ms. L. Gold, a member of the Ministry's human
resources department, attempted to persuade Mr. Khan not to
withdraw his application however she was not successful.
We will deal first with the union's submission that
Mr. Khan was denied procedural fairness in the handling of
his applications for positions following the
reorganization. In this regard, Mr. Ryder relied on this
Board's decision in Grummett 1656/90, (Keller). In that
case it was concluded that the grievor's request for an
"overage appointment" had not been fairly considered in
that she was not provided with the true reasons for the
decision not to extend her employment and thus was deprived
of an opportunity to address those reasons. Mr. Ryder
submitted that the Employer has failed to meet an onus to
explain why the grievor was not successful in obtaining
interviews for the many positions that he applied for. He
argued that the members of management "must have found the
grievor's persistence tiresome" and argued that absent an
explanation from the Employer witnesses with respect to the
reason that he was not offered interviews we should
conclude that he was "frozen out" in terms of being fairly
considered for the positions.
We are unable to conclude that any procedural
unfairness in connection with the consideration of Mr.
Khan's applications has been established. The evidence
before us does not establish a Drima facie case such that
the onus shifts to the Employer to provide an explanation.
The evidence establishes that Mr. Khan unsuccessfully
applied for a number of positions. We agree with Mr.
7
Slater's submission that without further evidence of the
relationship of Mr. Khan's qualifications to the
qualifications for those positions or evidence relating to
any other aspect of the competitions, a prima facie case
that Mr. Khan was treated unfairly has not been
established. While there was a dispute about the level of
Mr. Khan's position, that dispute took place primarily
through Mr. Khan's former supervisor, Mr. Sparling, and
related to his work prior to the re-organization. There
did not appear to be any particular acrimony associated
with this dispute. Indeed, the evidence established that
subsequent to the termination of Mr. Khan's employment Mr.
Sparling provided Mr. Khan with some advice about his
resume and forwarded his resume to a management employee in
the Ministry in an attempt to assist Mr. Khan in finding a
position. Ms. Parrish also made efforts to assist Mr. Khan
in finding a position, as did Mr. But. The evidence before
us simply does not establish a prima facie case of
procedural unfairness. Accordingly, we reject this aspect
of the Union's claim.
We turn now to the Union's position based on the
Beresford line of cases. It was the submission of the
Union that Mr. Khan was engaged to meet the ongoing
staffing requirements of the Ministry both prior to and
subsequent to the reorganization. It was argued that
8
ongoing staffing requirements of the Ministry must be
filled by classified appointments. It was the position of
the Employer that Mr. Khan was properly appointed to Group
4 of the unclassified service for the contracts that
covered the period following the establishment of Group 4.
In the alternative, Mr. Slater argued that Mr. Khan was
properly appointed to Group 1 of the unclassified service.
It was the Employer's position that the Board should
confine its considerations to the circumstances that
existed at the time Mr. Khan's final contract expired. The
Employer's position was that the grievor was not entitled
to challenge the non-renewal of his unclassified contract.
The relevant statutory provisions are sections 6, 7, 8
and 9 of the Public Service Act and Regulation 881/89 made
pursuant to that Act.' These provisions state 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 eligibles 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
9
qualification and assignment of the Com~_ission.
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
which'he presides.
(2) Any appointment made by a designee under
subsection (1) shall be deemed to have been
made by his minister. ~
9. A person who is appointed to a position in the
public service for a specified period ceases to
be a public servant at the expiration of that
period.
Regulation 881
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,
(a) Group 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 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 in four consecutive weeks
or on an irregular on on-call basis,
(v) during their regular school, college
or university vacation period or
under a co-operative educational
training program;
(b) Group 2, consisting of employees who are
10
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 contract of the
employee provides that the employee is 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 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;
(d) Group 4 consisting of employees,
(i) who are appointed pursuant to s. 8
of the Act, whether or not the
duties performed by them are, or are
similar to, duties perfo.rmed by
civil servants, and
(ii) who are not employees that belong to group l,
2 or 3. O. Reg, 24/86, s. 3(1), ap_~; O.Reg. 1
129/89, s. 1.
We received detailed written submissions from counsel
with respect to the Beresford decision of this Board and
the decisions that have subsequently been issued by this
Board dealing with the same issue.
Prior to the decision in Beresford, the jurisprudence
of the Board, as articulated in cases such as Ministry of
Correctional Services & OPSEU (Simpson) (Kennedy) 694/85,
was that the effect of s.9 of the Public Service Act and
the provisions of the Collective Agreement was that
unclassified employees were precluded from challenging
their termination from employment upon the expiry of an
unclassified contract and the decision not to renew it. In
Beresford, supra, which was decided prior to the amendment
to section 6 of Regulation 881 by the addition of Group 4,
the Board found that an unclassified employee whose
contract was not renewed had been improperly appointed to
the unclassified service as the position did not involve
duties that fell within any of the three groups referred to
in section 6 of the Regulation as it existed at that time.
The groups as defined were considered to be exhaustive and
the Board held that an appointment which did not fall
within one of those groups was not contemplated by section
8 of the Public Service Act and was therefore improper.
There is reference in that decision, to the fact that the
work performed by that grievor was not of a
temporary or non-recurring position, The Beresford
decision was upheld on judicial review and provided the
basis for the Board's jurisprudence'with respect to this
matter.
Subsequent to the decision in Beresford Regulation 881
was amended by the addition of subparagraph 6(d), the
provisions of which are reproduced above, creating Group 4.
This amendment was effective March 13, 1989. In Parry,
237/91 (Low), the first decision of this Board following
this amendment, the Union's argument that there is an
underlying requirement that an appointment to the
unclassified service must be in relation to a position that
is temporary in nature in order for such an appointment to
have been made in accordance with section 8 of the Public
Service Act was rejected. At p. 5 of that decision the
Board states that:
The provisions of section 6 (1) (d) defining
Group 4 of the unclassified service is [sic]
unambiguous in that it appears to catch all
employees who do not belong to Groups 1, 2 or 3,
and includes employees whether or not their duties
are similar to those performed by civil servants
(i.e. classified employees) provided that the
appointment was pursuant to section 8 of the Act which
requires that the first appointment be for no more
than one year.
Aside from this restriction with respect to the first
appointment, as well as the restriction contained in
Article 3.15.1 of the Collective Agreement, reproduced
above, the conclusion of the majority in the Parry case is
that the Employer is not restricted in its ability to
appoint to the unclassified service.
The effect of the amendment to the regulation was
13
considered by another panel of this Board in Lavoie 441/91
(Keller). In that decision, the majority concluded that
Parry was wrongly decided. At p. 13 the Board states as
follows:
...we must conclude that in both Beresford and
Bressette the Board was saying that an appointment
to the unclassified service must be of the type
that distinguishes it from the "normal" "permanent"
positions in the classified service. In our view
Group 4 appointments, even though wider in nature
than those in Group 1, 2, or 3 nevertheless are
equally restricted and the addition of the Group
can not, of itself, expand the meaning of Section
6 of the Act. It can create a new category of
appointments which must continue to be, as stated
in Beresford "distinguished ... from the "normal"
"permanent" position in the classified [service]".
The Board in Bressette stated that the parties
could not in the collective agreement expand the
statutory powers of appointment. The same holds
true for the employer. It can not expand the
statutory powers of appointment indirectly through
the Regulation. The latter must conform to the
Act and not vice-versa. Thus it is our conclusion
that Group 4 does nothing more than expand on the
types of appointments that may be made to the
unclassified service but can not be said to negate
the previous decisions of the Board that have
defined the scope of $. 8 of the Act. The end
result, then, is that an inquiry must still be
made to determine the nature of the appointment
as that will determine whether it is properly a
s. 8 appointment or not.
The matter was further considered by this Board in
Porter, 428/90, 1640/90 and 1641/90 (Brandt), Sin~h 331/91,
(Dissanayake), Justus, 879/91 (Knopf) and Jafri, 933/91,
935/91 (Dissanayake). In Jafri, the conflict in the
Board's jurisprudence following the amendment is fully
addressed. In all of those decisions the Board dealt with
14
a situation of an individual who alleged that he or she was
improperly appointed to the unclassified service by virtue
of the ongoing work of the position. In all of those cases
the Board took the same approach that was taken in Parry.
The decisions contain somewhat different reasoning, however
the essence of these decisions is that the amendment to s.
6(1) of Regulation 881 which created Group 4 clearly
contemplates the appointment of persons to the unclassified
service notwithstanding the fact that the work performed is
of a permanent, ongoing nature and that the provisions of
s. 8 of the Public Service Act do not restrict the
application of the appointment power to the unclassified
service to "work of an irregular, unusual or temporary
nature" as it is referred to at p. 25 of the Jafri
decision.
The analysis contained in these decisions is somewhat
different, however in the Jafri decision, commencing at p.
22, the Board states as follows:
We agree with Re Lavoie and Re Bressette that the
regulatory power cannot be used to expand the
statutory power of appointment in section 8. However,
the more fundamental question is whether group 4
in fact constitutes an expansion of the statutory
power, in other words, is group 4 inconsistent
with section 8 of the Act?
Neither Bressette nor Lavoie points to any particular
language in section 8 which gives rise to a conclusion
that an appointment under that section is limited to
duties that do not form part of the employer's regular
and on-going needs. Instead, both cases rely on the
now often-quoted statement in Re Beresford which is
quoted in the passage from Re Bressette set out above.
There, Vice-Chairperson Mitchnick observes that the
wording of section 8 of the Act would tend to support
Mr. Ryder's argument that" there must be some-
thinq about the job in its i~i~ial conception which
distinguishes it from the normal "permanent" position
in the unclassified service." [emphasis in the
original]
In our respectful opinion the foregoing observation
does not form part of the ratio decidendi in R~
Beresford. This view is supported by the language
used by the Vice-Chairperson Mitchnick. He makes no
definitive finding in this passage. He simply
observes that the wording "tends to support" a
certain interpretation. Then he moves on to deal
with what he considers to be the "more important"
issue, namely the question of whether the appointment
fits within one of the groups in section 6 of the
regulations.
The Board goes on to refer to the conclusions in Beresford,
at p. 16, where that panel states, inter alia:
... 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.
The Jafri decision goes on to state.at p. 25:
Even if we consider that statement in
question from ~eresford to be part of
its ratio, we are not at all convinced
that "the something" that distinguishes
an unclassified appointment alluded to
by the Board is a reference to the
nature of the duties to be performed by
the appointee. It is of note that what
the Board envisaged was something different
about the job "in its initial conception".
[emphasis in the original]
At best, the observation in Beresford is
vague. Beresford, Bressette and Lavoie
do not point to any statutory language
which may suggest that section 8 appointments
are limited to work of an irregular, unusual
or temporary nature. As already noted, we
are not able to find any such language. In
the absence of any statutory language to
support such a finding, we cannot agree that
the words "something different about the job
in its initial conception" is a finding by the
Board that appointments under section 8 cannot
be made for positions performing duties required
to carry on the employer's normal operations.
The use of the words "in its initial conception"
suggests that the Board may have been merely
alluding to the limitation in section 8 that the
initial appointment to the unclassified service
must be for no longer than one year.
The decision goes on to review some of the decisions that
followed Beresford. At pp. 29-30 the decision concludes as
follows:
We find that there is no restriction in section 8
of the Act that appointments to the unclassified
service are limited to positions that perform duties
that are not a regular or ongoing part of the
employer's operation. To read such a limitation
into section 8 would in our view be to give the
provision a meaning that the language could not
reasonably bear. It follows from that finding that
we must also find that group 4 of the regulation is
not inconsistent or in conflict with section 8 and
must be given effect to.
In Justus, the Board reached the same conclusion as in
Jafri. At pp. 18-20 of the Justus decision the argument
that the amendment of Regulation 881 is beyond the scope of
section 8 of the Public Service Act and that there is a
conflict between the Beresford decision and the decisions
in parry and Porter was addressed as follows:
Clearly, the regulations cannot repeal or amend
the enabling legislation. The Porter decision
reviewed these principles and concluded that
the regulatory amendment did not amend Section
8 of the Act because nothing within the Act
limits the duration of appointments or requires
them to be limited in duration:. But Porter and
Parry suggested that the Minister's powers had
been expanded. The union's frustration with
this conclusion is based on the fact that it
seems in conflict with the conclusion in
Beresford that indicated that the language in
Section 8 was significant:
... there must be something about the
job in its initial conception which
distinguishes it from the normal "permanent"
position in the classified service. (page 14)
Yet that same panel in the Beresford decision
continued its analysis by mentioning that a more
persuasive interpreting factor was that Section 6
of the Regulations set out various fixed term type
of appointments. It is further to be recalled that
when the Divisional Court considered the Beresford/
Miller issue, it also saw [section 6 of the
Regulation] as an interpretive guide, "elaborating
upon and perhaps defining the unclassified service
to which Section 8 refers."
It is therefore clear that the Regulations can aid
in the interpretation of, but not amend Section 8 of
the Act. What then is the effect of the creation of
the Group 4 category? This Board came to recognize
that Groups ! - 3 all have a temporary nature to
them by virtue of the time and. sequential references
throughout the section. But Group 4 then allows that
anyone not within the Groups could fall within Group
4. This effectively broadens the concept and
eliminates the elements of similarity and/or
the "temporary" characterization of the unclassified
appointments.
Thus we have to ask whether anything in Section 8
of the Act confines unclassified appointments to
a concept of a "temporary" natUre as the Union
wishes us to accept. It does at the outset by
requiring that the first appointment may only be for
one year, but it specifically allows that
"subsequent" appointments may be for "any
period". This allows the Ministry to appoint people
to [the] unclassified service for "any period"
whether it falls within the frames of Groups 1
18
to 3 or not.
But Section 8 does also demand that the appointment
be for a designated "period". It does not allow
for open-ended, unlimited or permanent type of
appointments to the unclassified staff. Otherwise
there would be no purpose to the language "for
any period on any subsequent appointment" [emphasis
added]. The period of the appointment is a critical
component to the appointment itself.
The Justus decision then goes on to depart from the
conclusion in Porter that section 8 does not impose a
requirement that the appointment be for jobs that are
limited in duration. The decision goes on to state:
This panel finds, in Section 8, the requirement that
the "subsequent" appointment be for a "period", but
that the nature of that period is not limited as it
previously was to the time restrictions set out in
Groups 1 through 3.
This interpretation preserves the distinction between
the status of classified and unclassified staff that
is apparent in the nature of the bargain between OPSEU
and the government through their collective agreement
and that was so ably pointed out by Mr. Ryder in his
argument. It recognizes the permanent ongoing nature
of appointments to the classified or civil service as
distinct from the limited appointments and employment
claims of the unclassified staff. This interpretation
also seems logical in light of the newly negotiated
Article 3.15.1 that allows, effective April 1, 1991
that if the same work is being done in the job for
two years and there remains a continuing need for
that work to be done on a full-time basis, the
position will have to be recognized as within the
classified service and duly posted and filled as
a vacancy within the classified work force. This is a
sensible balancing by the parties of the right of the
Employer to make contractually limited, yet long term
unclassified appointments, but checking it with the
requirement to acknowledge a situation where a full-
time permanent position exists if the need for the
work continues beyond two years.
We have quoted from the relevant decisions at some
length, as the analysis contained in those decisions is
thorough and detailed. We note that the issue raised in
these cases is one that is presently the subject of a
number of applications for judicial review, which will
hopefully resolve the conflict in the Board's
jurisprudence. In Ministry of Correctional Services &
OPSEU (Union Grievance) 1140/91 the Vice-chair of this
Panel reviewed these decisions and concluded that the
analysis in Justus and Jafri was correct and that it was to
be preferred to the approach taken in Lavoie. We note that
the same approach was taken in Ministry of Transportation &
OPSEU (Broom) 2293/90 (Gorsky). In his written submissions
in this case Mr. Ryder has further developed some of the
submissions that were made before other panels of this
Board in connection with these decisions. However the
essence of his submissions remain the same as those that
have been considered and rejected by a number of panels of
this Board. We are not persuaded that the provisions of
the Public Service Act compel the conclusion that there is
an obligation on the Employer to fill a position with a
member of the classified staff when the work performed is
the ongoing permanent work of the Employer. As well, we
are not persuaded that this conclusion compels the
conclusion that Bressette and Beresford were wrongly
decided.
Accordingly, even accepting that Mr. Khan was
performing ongoing permanent work of the Ministry, we are
unable to accept that the Employer has acted outside the
provisions of the Public Service Act. Whether or not the
relevant time is the time of the re-organization or the
time of Mr. Khan's termination, the amendment providing for
the addition to Group 4 was in effect. Mr. Ryder submitted
that even if we were to accept that the Employer was able
to make appointments to Group 4 to carry out permanent
ongoing work, the failure to specifically designate Mr.
Khan as a Group 4 employee subsequent to the effective date
of the amendment of Regulation 881 by the addition of Group
4 precludes the Employer from characterizing his
appointment as a Group 4 appointment. This matter was
addressed in Parry and in Justus and the position put
forward by Mr. Ryder in this regard was rejected. Again,
we are not persuaded that these decisions were wrongly
decided in this regard.
For all these reasons it is our conclusion that no
basis to challenge Mr. Khan's termination of employment
upon the expiry of his final unclassified contract has been
established and the grievance must be dismissed.
Dated at Toronto, this25 day of February , 1993
$. L. Stewart - Vice-Chairperson
"I Dissent" ~ ~ithout ~rittea reasons
T. Browes-Bugden - Member
F. ¢olli¢t - M~mbor