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HomeMy WebLinkAbout1991-1711.Sabljak.92-08-06 DUN,~AS STREET WEST, SUITE 2tO0, TORONTO, ONTARIO, M5G IZ8 . TELEPHONE/TELE°HoNE.· [~ ~,) ,126- RUE DUN~A.S OUEST, BUREAu 2~00, TORONTO (ONTARIO}. M5G IZB fcACSII'vllLE/T'~L~COPiE. (4 I6) 326 1711/91, 1712/91, 2981/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE B~RGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Sabljak) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE: A. Barrett Vice-Chairperson W. Rannachan Member J. Campbell Member FOR THE D. Wright GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE K. Pitre EMPLOYER Counsel Genest, Murray, DesBrisay, Lamek Barristers & Solicitors HEARiN~ May 29, 1992 DECISION This decision will deal with two preliminary issues raised by the parties. There are three Grievances before us: two competition Grievances and an unjust dismissal Grievance. The Hrievor was a member of the unclassified staff on July 30, 1991, when the two competition Grievances were filed. Her contract of employment expired on August 3, 1991, and was not renewed. She filed a grievance alleging unjust dismissal on November 18, 1991. ' The first preliminary objection of the employer is that because the grievor is an unclassified employee, she has no right to Grieve either the competitions or her dismissal. The union asserts that the grievor was improperly appointed to the unclassified staff under group 4 of Section 6 of Regulation 881/89 under the Public Service Act, and asks us, as a preliminary matter, to determine that the Hrievor should properly be a classified employee, thus entitled to grieve. The second preliminary objection of the employer is that the 'unjust dismissal grievance is out of time because the provisions of Article 27 of the collective aHreement are mandatory and require that a dismissal Grievance be filed within 20 days of the dismissal. Employer counsel asks us to dismiss that ~rieu~nce for being out of time before going on to the thornier issue of whether or 'not the grievor was properly appointed to the unclassified service. Union counsel argues that as the right to Grieve dismissal is a statutory right under The Crown Employees Collective Bargaining Act_, as 2 opposed to a c611ective agreement right, the time limits contained in Article 27 of the collective agreement do not apply. Counsel cites KeelinG, GSB ~45/78, and Vie~as, GSB #384/88 (Devlin), as authoritative jurisprudence of this Board for the propositions that (a) the time limits contained in the collective agreement do not apply to unjust dismissal Grievances; and (b) the employee does not have an unlimited right to grieve his or her dismissal, but must do so within a reasonable time with due consideration to any prejudice to the employer that might have arisen on account of the delay. In this case the delay is two and a half months, and no prejudice is alleged by the employer. If the grievor is able to leap the more serious objection of the employer that she has no right to Grieve because she is unclassified, then we would not dismiss the Grievance on the basis of untimeliness alone. Of course the major hurdle for the grievor is to obtain a determination in her favour that she was improperly appointed to the unclassified staff. In the wake of the amendments to Section 6 of ReGulation 881/89 under the Public Service Act, effective March 13, 1989, Greatly expanding the types of appointments that may be made to the unclassified service, division of opinion has arisen within this Board as to the scope and effect of the amendment. Three cases: Parry, GSB #237/91 (Low), Porter, GSB #428/90 (Brandt) and ~, GSB #333/91, have 3 effectively held that the Minister now has the power to appoint people to the unclassified service who are performing substantially the same work as classified staff, for which the need is not necessarily short- term or temporary in nature. Lavoie, GSB #441/91 (Keller), insisted that there must be something in the new category of appointments which must continue to be, as stated in Beresford, "distinguished...from the 'normal' 'permanent' position in the classified service". That Board held that the employer could not expand the statutory powers of appointment set out in the Public Service Act indirectly by an expansion of the Regulation. That panel of the Board concluded that group 4 did nothing more than expand on the types of appointments that may be made to the unclassified service, but could not be said to negate the previous decisions of the Board that have defined the scope of Section $ of the Act. Ail four of the above-cited decisions have been taken t:o the Divisional Court for judicial review, the first three at the behest of the union, and Lavoie by the employer. The appeals have been perfected and consolidated so that they will all be heard together. There is an expectation that the reviews will be heard in the. Fall of 1992. Thus, this Board will get direction from the. Divisional Court on this v.ery important and significant matter of statutory interpretation. The union urges us to adjourn our determination of the classified/unclassified preliminary issue until the Divisional Court has spoken. The union says all sides of the argument will be clearly before the Divisional Court, and that a definitive interpretation will have to 4 be made at that time. There is no benefit in further panels 'of this Board choosing sides before the Divisional Court has ruled. The union says it will be seeking adjournments in all future "~rouD 4 Beresford" cases until the Divisional Court has ruled. This same issue of whether or not to adjourn similar cases while awaiting a Divisional Court decision arose in 1989 when both Hicks, GSB #2563/87° and Beresford, GSB #1429/86, conflicting decisions of this Board, were before the Divisional Court, and many similar cases waited in the wings. In the .midst of the debate, Vice-Chairperson Wilson decided Bressette, GSB ~1682/87~ and held that Beresford was manifestly correct and Hicks manifestly wrong. He encouraged future panels of the Board to follow Beresford. Next came the definitive decision on adjournments pending the 'Divisional Court decision: Blondin, GSB #78/89 (Slone), which ruled against an~adjournment which would leave grievors "waiting for Godot" That panel followed Bressette and found that Hicks was a discredited decision which cannot be followed by other panels of this Board, except at the risk of falling into the same error once again. Furthermore, the Board found as a fact that there was only a small likelihood that the Divisional Court in Hicks would say or do anything that would change the course of our jurisprudence. At page 10, the Board stated: "If it quashes Hicks, to bring it in line with Beresford, we will have no option but to follow Bre~sette. If it dismisses the Application, we will still be faced with the task of speaking with one voice. I cannot fathom how we will do that except also by following Bressette." The-Board decided that we should not shy away from our statutory duty to "decide the matter" unless there is a clear likelihood that someone else with considerable authority is equipped and prepared to decide it for us. The panel acknowledged that from time to time, there will be occasions when we should defer to the Courts. We think this is one of those occasions where we should defer to the Court. First, because the Court will be required to choose between Lavoie and the other cases and cannot side-step the issue, which was a possibility in the Hicks and Beresford judicial reviews. Second].y, the amendment to the Regulation creating Group 4 has essentially blurred all meaningful distinction between classified and unclassified appointments if the Porter, Parry, SinGh line of reasoning is followed, and that is a matter of utmost significance for the parties. Thirdly, Lavoie has not been discredited, although it was considered in Jafri, GSB #933/91, and not followed. Justus, GSB #879/91 (Knopf), was released one month, prior to Jafri, but did not consider Lavoie. It followed the Porter, Parr~, Sinah line of reasoning to a point but declared the Porter analysis overstated or manifestly wrong where it concluded that: "It is impossible to read into Section 8 a requirement that appointments be for jobs which are limited in duration." Justus, too, is the subject of an Application for judicial reviewf .and will presumably be consolidated with the other four. Employer counsel urged us to discredit Lavoie, adopt Porter, ?arty and SinGh, and make our preliminary determination before the Divisional Court has ruled. We are not prepared to discredit Lavoie. Also, in this 6 case it is the grievor who is seeking the adjournment, not the employer, which is a reversal of the pre-Beresford and Hicks judicial review positions taken by each. Employer counsel cautions that the employer faces a potential serious and substantial liability if these cases are adjourned indefinitely. We do not believe the liability issue is something that needs to be considered by us at this time. Should the employer obtain a contrary decision ~rom the Court, its objection, to the adjournment and the'delays will be considered when a panel of this Board must determine a remedy for an individual grievor. Finally, the adjournment should not be a length~ one given that the Applications have been perfected and scheduled for a Fall hearing. In conclusion, the preliminary objection of the employer regarding timeliness is dismissed. The request of the union for an adjournment of the preliminary "group 4 Beresford" issue is allowed. We did not hear any evidence and are not seized of jurisdiction with respect to any of these grievances. Dated at Toronto this gth day of&ugust, 1992. W. Rannachan, Member ~Campb~ember