Loading...
HomeMy WebLinkAbout1991-0933.Jafri.92-04-14 . ..i ,._": "' .ii .?. ,. · .; ;~::., ONTARIO EMPLOYS. 5 DE LA COURONNE -' ~ ' '-:'. ~-~',' .' :..'- . CROWNEMPLOYEES OEL'ONTARtO .* :.!,.;%.~.~,._:; ~ .'~ *".'.:.. ~:~.. __ '~ .... GE,EVA,CE C .O~lr~,SS,ON DE lBO DUNi,.~AS STREET WEST, SUITE 2~100, 180, ~UE ~UNDAS OuEST. B~REAU 2~00, TORONTO {O~TARtOL MSG ~Z8 FACSIMILE/T~L~COPtE : ~4~6) 326-13~ 933/9[, 935/9[ IN T~ ~TTER OF Un,or T~ CRO~ ~P~YEEH COL~CTI~ B~AININ~ ~CT Be~o~e THE ~RIE~CE 8ETT~~ BO~ BE~EH O~SEU (~fr[) ~e~or The Crown in Right of Ontario (Ministry of Correctional Services) Rmployer BEFORE: N. Dissanayake Vice-Chairperson P. Klym Member I. Cowan Member FOR TH~ A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE B. Humphrey EMPLOYER Counsel Stringer, Brisbin, Humphrey Barristers & Solicitors HEARING October 10, 1991 March 25, 30, 1992 2 Decision The qrievor, Mr. Sohail Jafri, filed four grievances. As described in an interim decision dated March 13, 1992, rat the hearing on October 10, 1991, the parties agreed to carve ou~ and deal with one issue, the application of the "Beresford principle" to the non-renewal of the grievor's fixed term contract. In the instant grievance, the grievor claims that "the employer has violated the collective agreement by terminating me without just cause by letter dated March 14, 1991, signed by D.M. Oliver". It is common ground that Mr. Jafri had been a member of the unclassified staff and that the letter in question was a notice from the employer to the grievor that his contract will not be renewed upon its expiry on March 31, 1991. The union recognizes that as a general rule'the Board has no jurisdiction to entertain a grievance challenging the non- renewal of a fixed-term contract of an unclassified employee. However, Mr. Ryder argues that the grievor is entitled to challenge the non-renewal on two grounds. Firstly, on the basis that the grievor was improperly appointed to the unclassified service. For convenience we will refer to this as the Deresford argument~ Secondly, it was submitted that even if the appointment to the unclassified service was 3 proper, the grievor was entitled to grieve the non-renewal on the grounds that the employer's decision was motivated by bad- faith. At the hearing it was agreed that the parties at that stage would only address the Beres~ord aspect of this grievance. Mr. Ryder made no submissions on the bad faith issue in his written submissions and that was in accordance with the agreement reached. Ms. Humphrey for the employer, however, chose to make submissions on the bad faith issue also. ~We have not considered those submissions in this decision. This decision deals solely with the Beresford argument as agreed to. The development of the Beresford principle in the Board's jurisprudence has been reviewed in several prior decisions of the Board. In Re Porter, 428/90, 1640/90 and 1641/90 (Brandt), the Board summarized the jurisprudence as follows: The law is clear that an employee appointed to the unclassified service may not grieve the non- renewal of the contract as a "dismissal" unless it can be established that the "non-renewal" is, in essence, a disguised termination for disciplinary reasons. (Skalesky 429/81). It is equally well established that the provisions of the collective agreement entitling employees to grieve a job posting are not available to employees in the unclassified service. (Daniels 1544/87). The Board has, however, in a line of cases beginning with Beresford (1429/86), held that the propriety of an appointment to the unclassified service may be challenged by inquiring into the nature of the appointment and the duties performed by the incumbent in order to determine whether the appointment conforms to the requirements set out in 4 the Public Service Act and the Regulations enacted thereunder. The relevant provisions of the Public Service Act are as follows: 8(1) A minister.., may appoint for a period oI 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 ha presides. 9. A person who is appointed to a position in the public service ceases to' be a public servant at the expiration of that period. At the time that Beresford was decided section 6 of Regulation 881 under ~the Public Service Act defined the unclassified service as "consisting of employees who are employed under individual contracts in which the terms of employment are set out" and which are divided into three groups of employees. Broadly speaking these groups comprised seasonal employees or employees employed generally on temporary projects. In Beresford the Board commented on these provisions in the following terms: section 6 of Regulation 881... 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 .... a definition of the kin~ of situation contemplated by inclusion of a power of appointment to the unclassified service by way of section 8 of the Act. 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 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 th'eir very nature, all within 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 non9 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 appointments did in fact fall within one of the specified categories. The Board went on to find on the facts of the case before it that since the appointment did not fall into one of the categories set out in the regulation it was "improper". However, rather than direct that the grievor be appointed to the classified service, the Board issued a declaration and left it to the parties to work out a satisfactory remedy. The Beresford analysis has been repeatedly followed by the Board. In Mille¥ (1972/87) the Board was asked to reconsider its decision in. Beresford but declined to do so. An application for judicial review of both Beresford and Milley was dismissed by the Divisional Court and leave to appeal to the Court of Appeal was denied. Although some contradictory Jurisprudence emerged briefly in Hicks (2563/87),. that case has subsequently been discredited. [See, for example, Bressette However, while the union has been successful in obtaining declaratory relief where it is found' that an appointment to the unclassified service was improper, it has not, until very recently, been successful in persuading the Board to order that a successful grievor be appointed to the classified service. (See Wagner (351/89, 352/89); Kozak 977/88); Branch 314/89). Some uncertainty over the question of remedy has arisen as a result of certain remarks of the Divisional Court concerning~the question of the 6 Board's authority to order the appointment of a successful grievor to the classified service. It may be recalled that in both Seresford 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 a 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 its own practice established in Wagner. However, on judicial review of the 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 Beresford/Millev. The Board reviewed the jurisprudence 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/Mille¥, 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. It is fair to say that following the Divisional Court decision dismissing the application for judicial review in Beresfor~/Millev, the Hicks approach has been considered bad law and subsequent decisions have without exception followed the Beresford decision. Just when it appeared that the Board decisions were attaining a measure of consistency on the question of appointments to the unclassified service, section 6(1) of regulation 881 under the Public Service Act was amended. Before the amendment section 6(1) 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 and is divided into, (a) Group 1, consisting of employees who are employed, ~ (1) on a project of a non-recurring kind, (ii) in a professional or other specie% 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 or 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 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 8 position requiring 40 hou'rs 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 weeks 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. The. amendment which became effective on March 13, 1989, added a fourth group of employees described'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 similar to, duties performed by civil servants, and (ii) who are not employees that belong to Group 1, 2 and 3. On the basis of the evidence before us in this case, we find that the grievor performs work that is substantially similar to those performed by classified employees. While there are some differences in the scheduling, methods of job assignment and hours of work, what is important is that when the grievor is at work, his duties are the same as that 9 performed by classified employees. It is also clear from the evidence that the grievor's services were used by the employer to fulfil its on-going operational needs. While the grievor filled in for absent classified correctional officers - both short-term and long term absences - it is clear that this need to fill-in for-absentees is an on-going need. The grievor's services are not used merely in unusual situations. On the contrary, the employer's own evi4ence was that there is a routine and ongoing need to replace absent classified correctional officers. The employer made no sugges%ion that the grievor's appointment fell within groups ! through 3. Therefore the issues to be determined by this Board are a) whether it falls. within group 4 of the regulation and b) whether his appointment was improper because it was contrary to section 8(1) of the Public Service Act. There can be little doubt that the grievor's aDpointment falls within the language of group 4. That was not seriously disputed. As Mr. RYder points out in his reply submissions, the dispute between the parties is about the proper interpretation of section 8(1) of the Public Service Act. To be more specific, the issue is whether section 8 precludes an unclassified appointment, where the work to be performed forms part of the employer's regular and on-going Operational 10 needs. According to Mr. Ryder such a limitation'is implied in section 8 of the Act. He relies on Re Beres~ord and the line of cases that followed it as supporting such a proposition. Following that argument, it is Mr. Ryder's submission that group 4 of the regulation is in conflict with section 8(1) of the Act. Thus he argues that a regulation cannot be used to expand the powers of appointment in section 8(1) of the Act. Alternatively, he submits that group 4 should be read in a way which avoids conflict with section 8 of the Act. ~ The union's argument on the Beresford issue is very similar, to that made by union counsel in Re Sin~h, 331/91, which was decided by a panel of the Grievance Settlement Board chaired by the present vice-chair. In a majority decision the Board at pp.10-13 Wrote as follows: While we have set out the parties' submissions in some detail, all of those need not be dealt with in order to determine the issue at hand. The grievor's argument is premised on the position that the mere fact that an appointment ~o 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 curiously worded, 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 extensio~ of that term on an indefinite basis. That wording would, therefore, tend %o 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 io its initial conception which distingu%shes it from the norma% "permanent" position in the classified service. More important to' us, however, is the wording adopted by the civil Service Commission itself in enacting, on the approval of the Lieutenant Governor in Council, section 6 of Regulation 881 under the Public Service Acts We note, first of all, that section 30 of the Act expressly empowers the Commission to make regulations" ... (w) re~pectihg any matter necessary or 'advisable to carry on effectively the' intent and purDose 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, which are set out in detail in the remainde~ of the section. Th~ language is cast in a way that is "exhaustive" (as ODDOSed 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 Dower of appointment to the unclassified service by way of section 8 of the Act. 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 a 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 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 ~he appointment 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 classified 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-recurring" or "temporary" kind of position. Yet, as discussed, we are compelled to conclude that section 6 of the regulations, by its very terms, regUires 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 Deresford. 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 classified 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 $ of the Act. The observations of the Beresford panel &bout 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. The Board in Re Sin~h at pp. 15-17 Went on to state: 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 appointed to the 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 14 first three groups in ~ection 6(~), provided only that ghe .appointment ~s made pursuan~ to and in compliance with, section. 8 of the Public Service Ac__t. That section reads as follows: 8-(1) A minister or any public servant who is designated in writing for the purpose by him may appoint for a period of n~t 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 De deemed to have been made by his minister. What are the requirements in section 8? First, the appointment must be made by a 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 to the unclassified service in any other way. While there is a limitation of the duration of the initial appointment to one year, there is nothing in section 8 limiting appointments to certain types of positions. The majority in Re Sinqh has thus rejected the'argument made here on the interpretation of section 8 of the Act. We were simply Unable to find, on any reasonable interpretation of section 8, a requirement that unclassified appointments are restricted to positions which do not serve to fulfil the going and regular operational needs of the employer. Mr. Ryder in this case made two additional submissions, which were not made by counsel to the panel in Re Sin~. At pp. 3-4 of the written Submissions the following point is made: Further confirmation that the permanent Civil Service '(classified) is different in substance from the unclassified appointees of ministers' is the different way in which'members of the two services are treated under the PSA as a whole. While the rights of all public servants are compromised to secure a measure of impartiality, the restrictions .on Civil Servants are significantly more severe, in keeping I suggest, with the greater need for impartiality from those who are the Crown's permanent employees. Examples of the different statutory treatment.of Civil Servants are: a. the oaths under s. 10 are mandatory for Civil Servants. b. the prohibition against canvassing in s. 13 applies to all civil servants but only to a portion of the unclassified. c. Civil Servants are prohibited from speaking on matters in the platforms of a political party (s. d. the retirement age restriction is prescribed for Civil Servants, but not for the unclassified (s.17). Accordingly, it simply cannot be said that the only difference between the two services relates to the. manner of appointment. We agree that this different treatment of classified and unclassified employees is a recognition in the Act .that the two groups are different. The question however is whether these provisions suggest the particular difference urged upon us by the union, that only the classified service can be used to perform the on-going and regular duties in the public service. We do not think so. These provisions are entirely consistent with the difference recognized in the Act in the emmloyment relationship (as opposed to the nature of the work performed) of a classified employee, as co~pared to that of an unclassified employee. The former is a civil servant with an open-ended employment relationship and a member of the permanent gowernment service.~The latter on the other hand, is not a member of the permanent workforce. His employment is not open-ended. At any giveh time he has na assurance of employment in the government service beyond the period of his fixed-term contract. In our view, the different treatment of the two groups in the Public Service Act, is entirely consistent with and is explained by this difference in the employment relationship. The other submission relied on by Mr. Ryder relates to the fact that the collective agreement entered into between the parties treats classified and unclassified employees differently. The members .of the unclassified service have lesser rights, benefits and job security. Based on this, Mr. Ryder submits that "the collective agreement has been negotiated on the basis of thetemporary/permanent distinction between the two services". In our view, this different treatment of the two types of employees in the agreement is e~plained by the same reasons we set out above in relation to the different treatment of the two groups in the Act itself. Classified employees are "permanent" in the sense that they have an open-ended employment contract. Unclassified employees are "temporary" in the sense that their employment at any given time is limited to the duration of a fixed-term contract. It should not surprise anyone that the collective agreement gives employees on fixed-term contracts lesser rights, benefits and job security. In any event, it is our view that the provisions negotiated by the parties in a collective agreement cannot be of any assistance to us in ascertaining whether section 8 of the Public Service 6qt, includes the limitation on the power of'appointment to the unclassified service urged upon us. The proper interpretation of section 8 cannot depend on provisions of the collective agreement, because the parties cannot either expand or restrict the power of appointment conferred Upon the Minister by section 8. At the time the decision in Re Singh (su_~p~) was written, we were not aware of any other decision considering the impact of the new group 4 of the regulation. Since then, several 18 decisions on point have been issued by other panels of the Board. Re Singh, (supra), Re Parry, 237/91 (Low) and Re Porter, 428/90, 1640 and 1641/90 (Brandt) were heard within a period of a few days of each other. Each panel was chaired by a different Vice-Chairperson. It appears that each panel made the decision as a case of first impression. This certainly was the case, when I Wrote the decision in Re Sin~h. The decision in Re Singh has been reviewed above. The decisions in Re ~arr¥ and Re Porter, albeit with somewhat different reasoning, also came to the conclusion that section .8 of the Public Service Act does not impose the kind of limitation in the power of appointment to the unclassified service urged upon the Board in this case by the union. In Re Parry, at p. 8 the Board concluded (with Board Member Carrieredissenting): There is nothing in the language of section 8 of the Act which itself imports a connotation ~of temporariness and on a Dlain reading of the section, it is ~uite conceivable that beyond the first appointment which must be for a period of not more than one year, all subsequent appointments could be for lengthy periods of time. It is also conceivable that such appointments could be renewed indefinitely. In my view, to import into the language of section 8 of the Act a connotation of temporariness, whether read together with section 6 of the Regulation or not, is to strain the language of the statute beyond what it can bear, and I would not so construe the section even in the absence of the addition of the fourth group of unclassified employees found at section 6(1) (d) of the Regulation. In Re Porte~, the Board at p.9, summarized the parties' positions as follows: In summary, the employer argues that the April 2, 1990 re-appointment of the grievor fell clearly within Group 4 and that consequently the Beresford reasoning does not apply. The union does not take issue with the claim that the grievor was an employee falling with Group 4. It is argued, however, that insofar as O. Reg 129/89 i~ inconsistent with s. 8 of the Public Service Act, it should be read down so as to remove that inconsistency. At pp. 14-16 the Board, With Board Member Seymour dissenting, concluded~ 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 an.y 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 $ 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 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 that 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. ~nsofar as section 8 of the Public Service Act does not, on its face, purport to limit such appointments in the manner suggested by the union, we see no conflict between it and O.Reg 129/89. Accordingly, we are prepared to give it full effect and declare that the appointment of the grievor to the unclassified service is "proper". The next post-amendment decision which was brought to our attention is Re Lavoie, 441/R1 (Keller). This. decision refers to the Parry decision, but not to Re Porter or Re Singh. presumably, the two latter decisions were not put before the panel in Re Lavoie. The majority.in Lavoie disagreed with the conclusion reached in Re Parry. In so doing, the Board relied on a passage from Re Bressette, 1687/87 (Wilson). At pp.. 12- 14, the Board in Re Lavoie wrote: The power to appoint to the unclassified service comes from Section 8 of the Act. Section 6 .of the Regulation can do nothing more than flesh out the' Act'- it can not expand the statutory provision. In our view the proper approach to take is the one that was taken in Bressette, supra. In that decision the Board says, in part: The second issue is a broader and more serious one than that of interpreting the collective agreement. The authority of the deputy minister .to appoint to the unclassified service exists in the Public Service Act section 8. The Beresford panel found that it is not an unlimited power. At page 14 it interprets section 8: "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 unclassified service." 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 remaining in section 8. The existing regulation at the time of Beresford_ appears to exhaust the general scope of the appointment power. However, the panel in Hicks in fact used subsection 30(3) to "read" Regulation 881 in such a way as to substantially change the appointment power in section 8 of the Act as it had been defined by the Ber_es~ord panel. Obviously, subsection 30 ( 3 ) cannot be used to expand the appointment power beyond the statutory mandate in the Public Service Act. The Beresford_ language defines the statutory power to appoint to the unclassified service as something distinguished . ,, ,! !! from the normal permanent position ~ the classified service." Apart from the question of the proper techniques for "reading down" of statutes or regulations - a constitutional law doctrine, - there is n_9o legal authority for the Board to use subsect ion 30 ( 3 ) to expand the statutory authority of the deputy minister. Furthermore, I add that the bargaining parties cannot through the collective agreement expand those statutory powers of 'appointment. Only the Legislature can change the Public Service Act. Flowing from the above, we must conclude that in both Beresford and Bressette the Board was saying 22 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 8 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 source". 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 ~roup 4 does nothing more than expand on the types of appointments that may be made to the unclassified service but can not 'b~ said to negate the previous decisions of the Board that have defined the scope of s.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. It is apparent from the foregoing that in Re Lavoie, th~ Board finds that the group 4 amendment in the regulation constitutes an expansion of the appointment power conferred by ~ect~on 8 of the Act. This was also the concern of the Board in Re Bressette. We agree with Re Lavoi9 and ReL Bressette that the regulatory power cannot be used to expand the statutory power of appointment in section 8. However, the more fundamental question is whethe~ group 4 in fact constitutes an expansion 23 of the statutory power. In other wor~s, is group 4 inconsistent with section 8 of the Act? Neither Bressette nor Lavoie points to any particular language in section 8 of the Act which gives rise to a conclusion that an appointment under that section is limited to duties that do not form part of the employer'Ls 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 put 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 something about the job in its initial conceDtio~ which distinguishes it from the normal "permanent" position in the unclassified service." In our respectful opinion the foregoing observation does not form Dart of the ratio decidendi in Re 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. 24 More significantly, the Board in Re Beresford makes its final conclusion at po 16: 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 classified service, and all of the evidence we have as to the temporal nature of the position points to the contrary of it be%ng of a "non-recurring" 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 kave that the position to which the grievo~ was appointed was not one whic~ falls within 'any of the various s%tuations encommassed 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 ~rievor to the "unclassified" as opposed to the "classified" service was impromer. The foregoing indicates that the Board's decision that the appointment was improper was based on its finding that the position did not fit within any of the 3 groups then set out in the regulations. 25 Even if we consider that statement in question from Re Beresford 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". At best, the observation in Re 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 inception" 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 {o the unclassified service must be for no longer than one year. We have also reviewed the recent decision of the Board in Re Tsiotsikas, 907/88 (Wilson), which was relied on by Mr. 26 Ryder. That was a pre-amendment case and the decision deals with the appropriate remedy where an improper appointment to the unclassified service is found. However at p. 15, the Board refers to Re Beresford and Re Brgssette and states: The rationale of those cases was that when the work continues, it is must be filled by classified staff: as Mr. Mitchnick wrote in Beresford 1 at p. 16: The position to which the grievor Was appointed clearly was not "seasonal", has no different hours or other conditions of employment than the similar positions to which persons had been appointed to the classified service, and all of the evidence we have as to the temporal nature of the positions points to the contrary of it being of a "non-recurring" 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 .... In our view what the Board attempts to do in this passage in Beresford is to see if the Dosition in question fits into one of the categories in section 6 of the regulations. The Board concludes that the position was not "seasonal", "non-recurring" or "temporary".. These are terms found in section 6 of the regulations. The conclusion reached by the Board is 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". We see nothing in this passage 27 from Beresford suggesting that section 8 of the Public Service Act imports any connotation of temporariness of the work. To the extent that the Board refers to temporariness, it derives that requirement from the description of the categories in section 6 of the regulations as it was framed at that time. A number of decisions that followed Beresford were also referred to us. A careful reading of those decisions indicates that the basis of the Board's decision was that the appointment was improper because it did not fit within section 6 of the regulations as it then existed. In Re Union Grievance 1480, 1481, 1452/89 (Kaplan) the Board made its decision on the basis that the positions in question were not "projects of a non-recurring kind". At pp. 19-20, the Board states: "Based on the evidence that we heard, we have come to the conclusion that none of the positions before us falls within Regulation 881 of the Public Service Act. in our view, just because a position is described, for example, as a "project of a non-recurring kind" does not make it so, especially where all the evidence goes to its continuing nature." In Re Ryder, 2413/87 (Springate), at pp. 11-12, the. Board stated: Accordingly, by way of this award we will address only the issue of whether the grievor was 28 in section 6 of Regulation 881 as constituting the unclassified service. On the evidence it is clear that the number of classified correctional officers employed at the Hamilton-Wentworth Detention Centre is not adequate to meet the Centre's staffing needs. The employer has responded to this situation by regularly utilizing unclassified staff. The grievor was regularly employed as a correctional officer for some two and a half years. His employment was clearly not of the type centemplated by section 6 of Regulation 881. Accordingly, we find that the grievor did not come within any of the groups referred to in the Regulation as constituting the unclassified service. In Re Union Grieuance, 311/88 (Watters) the Board set out its understanding of the Board's jurisprudence as follows: It is now clear that the Grievance Settlement Board has the authority to review the propriety of appointments to the unclassified service. The awards in Beresford; Miller; RYder; Wa~ner; O'Breza; and Rohrer provide support'for this conclusion. An application for judicial review of the Beresford - Milley decisions was dismissed by the Ontario Divisional Court in an unreported decision of Mr. Justice Osler dated December 6, 1988. In each of the aforementioned cases, the respective panels assessed the nature of the grievor's employment so as to determine whether it fell within one of the three (3) groups established by section 6 of Regulation 881. This Board elects to follow an' identical approach. The Board concluded at p. 15: Turning to the facts of this case, we are satisfied that the unclassified Correctional Officers at the Jail are required to meet the on- going and regular needs of the institution. In fulfilling this role, they work close to forty ~40) hours each week. Such hours are scheduled in advance although call-in hours are also worked. In addition, these employees work a considerable amount of overtime. While on the job, they perform substantially the same duties as the classified 29 officers. All of these conditions have existed for a considerable period of time. The nature of their employment did not change with the implementation of the new schedule in April, 1989. Given these facts, we are unable to find that the unclassified Correctional Officers are employed on an irregular or on-call basis for purposes of section 6 (1)(a)(iv) of Regulation 88t of the Public Service Act. In our judgment, employees who regularly work approximately forty (40) hours per week over a lengthy period of time cannot be considered as engaging in irregular employment. In Re Wagner, 351 and 352/89 (Slone) the Board sets out its understanding of the Beresford decision at p. ll: What the Board decided in Beresford was .that the job being done by the grievor did not fit into any of the categories recognized in Regulation 881, and that the power of the minister to appoint to the unclassified service was limited to those types of jobs in any one of Groups l, 2 or 3. If the job actually being done by the grievor did not fit into any one of those categories, then the appointment was improper and ought not to have been made. At pp. 12-13 the Board inquires into the question of whether the position in question fit into "any of the categories created by section 6 of Regulation 881" and concludes that it did not. The Board rejected the employers argument that the position fell within group 2 as a "project of a non-recurring kind". The result of all of the foregoing is that I' am not persuaded that, I should depart from the reasoning and conclusion in Re $ingh. we find that there is no restriction in section 8 of the Act that appointments to the unclassified 30 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. On the evidence, we find that the grievor falls within group 4 of the regulation. His appointment was also in compliance with section 8 of the Act. Since the Act and the regulations have been complied with we find the grievor to have been properly appointed to the unclassified service and his grievance fails on that ~spect of his argument. The Board remains seized of jurisdiction to hear and determine the union's alternate argument based on bad faith. We also remain seized to deal with all matters in dispute in the other three grievances which were placed before the Board at the commencement of this proceeding. Dated this l~thday of April at Hamilton, Ontario N.V. anayake Vice-Chairperson Dissent" (dissenC a~tached) P. Klym Member Member Re: GSB File 933/91 and 935/91 OPSEU (Jafri) and Ministry of Correctional Services DISSENT OF BOARD MEMBER P. KLYM I find that I must dissent from the majority decision in this case on the preliminary issue of whether the grievor was properly appointed to the unclassified service. We are all agreed that the grievor's duties were the same as those performed by classified employees and that the grievor's services were used by the employer to fulfill its on-going operational needs. There is also agreement that if the grievor's appointment to the unclassified service was proper under Section 8 of the Public Service Act, it fell un6er group 4 of the regulation and not under Groups 1, 2 or 3. Similarly, I do not believe there is disagreement that the Minister's rights to appoint to the unclassified service arise out of Section 8.of the PSA and not from the regulations. Any rights he has from Section 8 of the Act must be exercised within the further constraints of the regulations. That is to say, the regulations can't grant the Minister any rights he/she does not have within Section 8 of the Act itself. The basic disagreement the majority and I have in this case can be summarized by the question of what are the restrictions in the Public Service Act itself (as separate from any.restrictions in' the regulations) on the right of the Minister to make appoint- ments to positions .... The majority position is essentially that the only restriction in the Act itself is that the first appointment shall not exceed one year. Subsequent appointments can be for a period of any length (presumably 10 years, 20 years, etc. if that should be the decision of the Minister). They say there is no limitation in Section 8 of the Act on the type of positions that are being filled even if these positions are performing duties that are a regular or on-going part of the employer's operation and the same as those performed by classified employees. Their reasoning then -- 2 proceeds to say that, without any limitation in the Act on the type of positions or ~uties, then the addition of Group 4 to the regulations, subsequent to the initial Beresford line of decisions, now removes constraints that were previously imposed on_~_~ by Groups 1, 2 and 3 of the regulations. This line of reasoning requires one to start from the position that the Beresford and Bressette line of cases found no difference in the type of positions and duties which are covered by Sections 6, 7 and 8 of the Act and that no such distinctions are present in the Act itself. With respect to the conclusions of the majority, they have seriously misinterpreted one of the reasons for decision in the Beresford case. In the Beresford case the Panel in inter- preting Section 8 of the Act states: "That wording would tend to support Mr. Ryder's agrument 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 that distinguishes it from the normal 'permanent' position in the classified service". I note that this was not an obiter comment but an integral part of the decision and one of the grounds for decision. The Beresford Panel went on to review the other reason for the decision (the impact of the regulations) which it found to be more important than the first grounds above; but, nevertheless there were two grounds to the decision. This finding by the Beresford Panel regarding the positions to be filled under Section 8 was further buttressed by the Panel in Bressette where on P.18 they state: "The Beresford language defines the sta~utor~ power to appoin~ to the unclassified serv~Lce as something distinguished ... from the 'normal' 'permanent' position in the classified service". The majority interprets the above statements in both the Beresford and Bressette cases as not referrihg to the type of position or duties performed. Instead, the majority states that because the 'Beresford' Panel used the words "in its initial conception", the distinguishing "something" to which they were referring may be the limitation on the initial appointment to one year. I' have read and re-read the Beresford, Milley and Bressette cases, and I do not know how anyone can get the impressiQn that they say this is the dis.tinguishing feature of the two types of appointments. That is not what'those cases say or even infer and the majority decision does not do justice to what these decisions say. .So if the Beresford and Bressette line of cases was good law in interpreting Section 8 of the Act before the passage of O.Reg 129/89 which added Group 4, it must still be good law after this regulation was passed since the Legislature took no action to amend the Act itself. The majority in this case and the Singh, Porter and ~arry cases has in effect, consciously or not, overruled Ber'esford & Bressette et al while purporting to be following some aspects of them. On the other hand, the Lavoie case has followed the'Beres~ ford/Bressette line of reasoning. The result of the majority decision is to create two parallel services, with employees occupying the same type of positions, doing identical work on a very long term or even permanent basis (provided appointments to unclassified are renewed on an on-going basis). The majority position is that the only restriction on the Minister under Section 8 of the Act is that the initial appointment be for no more than 1 year. If this is so, the Minister has the right to make subsequent appointments for as long a period as he or she wishes - ~g.: t0 years, 20 years, etc. Furthermore, the right ~o~ the subsequent_a~ointments comes from S~ction 8 of ~h9 %S~ and not a regulation. If this right is not restricted by excluding positions and duties that are part of the employer's on-going permanent require- ments normally done by classified staff, then the Minister has the right in effect to override many provisions in the Collective Agree- ment. These could include provisions regarding vacancies and postings, placing of surplus staff, and even the new Article 3.15 negotiated in the last Agreement. Since one o~ the parties to the Collective Agreement, the employer also was responsible for passing O.Reg 129/89 adding Group 4, and it must clearly be accepted that the government e negotiates in good faith, they could not have intended that the addition of Group 4 would allow a Minister to undermine and negate an Agreement they negotiated and signed. I submit that the error made by the majority in this case and in Singh, Porter & Parry is to focus entirely only on Section 8 of the Act in determining any restrictions on the Minister and on the types of positions he/she is authorized to fill under this Section. To decide which positions are authorized by the Act for filling as unclassified under Section 8, all of the portions of the Act which deal with appointments to the Public Service should be considered. This requires a review of the appointments authorized by Sections 6, 7 and 8 together. Sections 6 and 7 cover the stiuation of appointments when a vacancy exists in the classified service. These appointments are solely within the purview of the Civil Service Commission from nominees received in.writing from the deputy minister. The Minister has absolutely no authority to make appointments to these vacancies when they exist. The question maY arise: "When does a vacancy exist in the classified service?" Nowhere in the Act is the Commission or any representative of the employer given ~he power to determine this. The Collective Agreement in Article 4 also states that: "when a vacancy occurs in the Classified Service .... or a new classified position is created in the bargaining unit it shall be advertised ..... etc. etc.". Thus, without any contrary provisions in the Act, the issue of when ~ vacancy occurs is determined under the Collective Agree- ment using the normal jurisprudence of deciding vacancies - on-going work, sufficient work, etc. Indeed, in GSB 1480/89 (Union Grievance) on P.19 & 21, the Panel used the criteria of on-going work of the Ministry to order a vacancy to be posted. Similarly, in GSB 311/88 (Union Grievance) on Pages 15 & 18, the Panel used the criteria of on-going and regular needs of the institution, substantially the same duties as classified officers and on-going and permanent positions, to order vacancies to be posted. The point of this is that there exists established arbitral jurisprudence at the GSB and elsewhere ~egarding the determination of when a vacancy exists. When a vacancy actually does exist, it must be filled under Article 4 of the Collective Agreement and Sections 6 and 7 of the Public Service Act. Staffing these vacancies with unclassified employees is not proper either under the Collective Agreement or under Section 6 or 8 of the Act. In fact, the employer argued on Page 9 in GSB 311/88 (Union Grievance) that a vacancy did not exist as a consequence of manage- ment's decision to have the work performed by unclassified staff, and this position was obviously not accepted by the Panel in that case. From all this it is apparent that the Minister does not have any role in filling positions that are determined to be vacancies for the classified service. Therefore, if we read the Sections of the Act sequentially, the positions authorized to be filled by the Minister under Section 8 are of necessity distinguishable from those that are considered to be vacancies belonging in the classified service. ~hey canno~ be.,the same positions as those Falling under Section 6_and 7 of the Act. They differ by more than solely the manner of a~pointment. Indeed, if we follow the arbitral jurisprudence of this Board and arbitrators in general, positions qualify as vacancies because they are part of the on-going regular requirements of the employer or are normal permanent positions. I submit that the conclusion in Beresford and Bressette regarding the distinguishable features of the positions in the unclassified service from the classified service in their initial conception is buttressed by this analysis of Section 6, 7 and 8. The effect of the majority decision which allows the Minister. under Section 8 of the Act to appoint persons to positions that are part of the on-going permanent requirements of the employer is to allow the Minister or his/her designate to usurp the exclusive powers granted to the Commission to fill these positions and to by-pass the normal requirements or'determining qualifications, probationary period, etc. Surely a proper reading of the Act does not permit this. Once it is established that the Minister does not have the unfettered right under Section 8 of the Act to appoint persons to the unclassified service in positions that belong as vacancies under Section 6, then Group 4 of the regulations cannot be used as any authorizing power because it would create a conflict with the posting of such vacancies under Article 4 of the Collective Agreement. ~ This conflict is not permissible under Section 30(3) of ~ the Public Service Act and the Collective Agreement provisions must be given precedence. Mr. Ryder submitted argument on. the effect the Parry interpretation re Group 4 would have on vacancies and Article 4, but .the majority has not addressed these directly in their decision. So if the Minister does not have the power under Section 8 to appoint to positions that are part of the on-going staffing require- ments of the employer, what is the effect and purpose of the new Group 4 in O.Reg 129/897 The Panel in Beresford found that the regulations were exhaustive as to the type of appointments that could be made. Obviously, there are positions that do not qualify as vacancies to be filled under Section 6 and 7 of the Act but could qualify for unclassified appointments under Section 8 of the ~ct if the regulations permitted same. Group 4 serves to remove these restrictions under the regulatiDns provided the appointments initially properly come under Section 8 and not under Sections 6 and 7. An exa~ple of this is in GSB 1286/90 (Thomas). In that case the Panel found that the grievor's position was of a temporary nature and Was never intended to be an on-.going position and properly came under Section 8 of the Public Service Act. 'Group 4 of the regulation was used to legitimize the unclassified appointment since none of the other three.groups covered his situation. In my submission, the Panel must satisfy itself that the position in question does not properly fall within the ambit of Sections 6 and. 7 of the Act before deciding it is properly an unclassified position. In summary, I would find in this case that the position does not properly belong in the unclassified service and w~uld find in favour of the Union on this preliminary issue. ~ ~~/<~._.