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HomeMy WebLinkAbout1992-1000.Milks.93-03-11 '. ~~: )' ONTARIO EMPLOYES DE LA COURONNE '"" ~ CROWN EMPLOYEES DE L'ONTARIO \" l1lil1li GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO. .MSG lZ8 TELEPHONEITELEPHONE (4/6) 326-/388 180 RUE DUNDAS OUEST BUREAU 2/00 TORONTO (ONTARIO) M5G lZ8 FACSIMILE TELECOPIE (416) 326-1396 1000/92 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Milks) Grievor - and - The Crown in Right of ontario (Ministry of the Attorney General) Employer BEFORE: W. Low Vice-Chairperson E. Seymour Member F. Collict Member FOR THE C. Dassios mUON Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE M. Migus EMPLOYER Staff Relations Consultant Ministry of the Attorney General HEARING January 7, 1993 ~ ; .#' (,f l DECISION The Grievor PatnCla Milks waS employed by the Ministry of the Attorney General from February 11, 1991, to March .31, 1992 She was employed under Contract No 728724 \ effective February 11, 1991, to December 30, 1991, and under Contract No 73306 effective October 1, 1991, to March 31, 1992 At the end of the second contract, Ms. Milks was not offered any further contract. She grieves unjust dismissal. We are asked to rule upon a preliminary objection going to the Board's jurisdiction to determine the unjust dismissal grievance. It is the posItion of the employer that the Grievor, being a contract employee whose employment ended wIth the expiry of the term of her contract, ceased to be a public servant under s 9 of The Public Service Act, and that as there is no contractual or other obligation on the part of the employer to offer further employment to the Grievor, the Board has no Junsdlction to determine an unjust dismissal grievance on the part of the Gnevor The following facts are not in dispute. that the Grievor's total penod of employment as a public servant was one year, 17 days, and was pursuant to the two contracts referred to hereinabove. The contracts covered a new position of cashler/counterclerk (later known as counter services clerk) classified at the Office AdministratIve Group 5 level. The counter services clerk position was posted as a full.time classified vacancy in December of 1991 under Competition No 383A/91, a competitIOn to whIch the Grievor apphed The Grievor was . if I ~~ , '1? 2 interviewed on January 21, 1992 She was not successful 10 the competItIon and was so advised on February 18, 1992 After the competItion results were known, the Grievor was advised that her contract would not be renewed The candidate selected for the counter services clerk position started in that position on March 9, 1992, and the Grievor was assigned to other duties to the end of her contract. She continued to be paid at the Office Administrative Group 5 level after the re-assignment and to the end of her contract which expired March 31, 1992 It is alleged on behalf of the Umon that there was bad faith on the part of the employer It is alleged that the acts of bad faith consisted of the following 1 When a support payor told the Grievor that he did not wish to deal with her because she was a woman, the Gnevor's supervisor, Mr Belanger, agreed and told the Gnevor that he was to be summoned when this particular payor came in, 2 When another payor wrote a letter to the Mimstry praising the Grievor's manner in the conduct of her dutIes, the orig1Oal of the letter was not given back to the Gnevor, notwithstanding her request for It; 3 In another'incident, Mr Belanger dropped an Affidavit on the Grievor's desk and told her to "find all the errors", which Grievor did, notwithstand1Og that she did not draft the AffidaVit; 4 Shortly after she was informed that she was not successful in the i , i 3 competition, the Grievor was confronted by her supervisor Mr Belanger with a list of allegations regardmg her conduct, including allegations that she had been dating payors and providing confidential information to persons not entitled to same, and when later the Grievor denied the allegations, the particulars were given to her in a two page memo which was also put on her file detailing the allegations. It is alleged that there was a real risk that these allegations had an impact on the result of the competi tion, 5 Although the contract had not yet run its course, the Grievor was re- assIgned to do relatively menial tasks once the competition was concluded and the successful candidate mstalled, and the Gnevor received no alternate training and no support; 6. When the Grievor's contract ran out, the Employer did not look for new work for her We did not receive evidence on the Issue of the allegatIOns of bad faith The parties have agreed that on the preliminary issue, if this Board is of the view that bad faith is irrelevant for purposes of determimng whether there is Junsdicticm in this Board to determine the grievance, that would be an end to the matter It is of course the position of the Employer that the presence or absence of bad faith is irrelevant in determining whether or not this Board has jurisdiction, and it is submitted on behalf of the Union that the presence of bad faith is a .~ ~ . 4 relevant factor One of the addItional facts raIsed by the Employer and which is not disputed by the Union is that the position which the Grievor had been hired to fill was a positIon existing pending posting and competItIon The permanent position was posted and a classified position was created The functioQ that the Grievor had been origmally contracted to fulfil on a temporary basis therefore came to be performed by a permanent classIfied employee, thus obviating the contract pOSItIon It is also not seriously dIsputed that there was no contractual or other obligation on the part of the Employer to seek other work or to offer another contract to the Grievor Finally, It was indicated to us that at least some of the incidents which are alleged to be acts of bad faith on the part of the Employer were the subject matter of earlier grievances by the Grievor, but that the gnevances were WIthdrawn Counsel have referred us to thIS Board's deCISIons m Healey 0485/88 (Fisher), Shipley 0223/86 (Samuels), Corey 377/86 (Gandz), Humemuk 614/84 (Springate) and a decision of Mr Shime in Re InternatIonal Nickel Co. of Canada ,Ltd. v United Steelworkers. Local 6500, 14 L.A C 2nd, 13 (1977) In Corey, the Board held that a non-renewal of a contract which has run its term cannot be viewed as a dismIssal and accepts a conclusIon reacheq in the earlIer case of Cascagnette 1246/85 that the Board has no jUrIsdiction to reVIeW the circumstances under which i l' j!;.' 5 a fixed term contract was not renewed The employment relatIonshIp created by a fixed term contract is severed by operation of s. 9 of The Public ServIce Act and the terms of the contract itself In Shipley, Arbitrator Samuels came to the same conclusion notIng that the Board cannot create a contract where none exists and cannot fashion remedies to deal with the failure to enter into a contract. In the Shipley case, the Grievor alleged that he was beIng discriminated against contrary to the Human Rights Code and the result of such discriminatIon was the non-renewal of his contract. The Board held that even assuming the Employer's policy on hIring relatives was contrary to the Code (being the grounds for the allegation of discrimination), the Board nevertheless had no jurisdIction to deal with the grievance that the contract was not renewed Vice-Chairman Samuels noted at page 8 of the deCIsion "An unclassified employee has no contractual right to renewal of his contract. Why would it matter if the failure to renew was "tainted by bad faith" (whatever that would mean in the circumstances)? This Board- simply has no jurisdiction over non-contractual problems, except for the three matters mentioned In section 18(2) of the Crown Employees Collective Bargaining Act." In the Healey case, the union argued that the Board has the jurisdiction to enquire into the decision-making process of the employer in deciding not to renew a contract to see if the decision was made in good faith It was also argued that If not, the Board had junsdiction to apply the appropnate remedy Vice-Chairman Fisher accepted the reasoning in Shipley as binding on this Board in accordance with the Blake deciSIon and held that the Board simply has no jurisdictIon in the case of a simple non-renewal of a contract where the employee was paid to the end of his term , .... ~~, 6 The earlier decisIon of H u mem uk 614/84, a decIsIon of Vice-Chairman Spnngate, appears to be the progenitor of the argument that the establishment of bad faIth on the part of the employer in not renewing a contract might open the door to an enqUIry by this Board where the operation of s. 9 of The Pubhc Service Act and the operatlOn of the contract would prima facie preclude this Board's Junsdiction on a gnevance as to non-renewal In the Humeniuk case, the ratio of the decision appears to be in the following "There is nothmg in the collective agreement or in the applIcable statutes which guarantees contract employees the right to be reappointed, or which in any way restricts management when it makes a decision as to which contract employees are not to be renewed Accordingly, the non-renewal of the gnevor's contract, which was not ta1I1ted by bad faIth on the part of the employer, did not involve a breach of either the collectlve agreement or a relevant status " It IS the phrase "whIch was not tainted by bad faIth on the part of the employer" which has fed numerous arguments that the presence of bad faith may create jurisdiction where none otherwise would exist. On our view of the Humemuk decision, the comment as to tainting by bad faith is at best obIter,and does not, in our view constitute an authority for the propositIon that the presence of bad faith would, in a non-renewal of contract sItuation, give jurisdiction to this Board to renew the contract or to impose a new contract upon the parties. As for the International Nickel decision to which we were referred, although we agree with Arbitrator Shime's comments as to good faith, we find the deciSIon not applIcable in this statutory setting In any event, we are of the view that decIsions In Corey, Shipley and Healey were correctly deCIded, and whether the Blake deCIsion permits thIS Board to depart from earlier jurisprudence of the Board only in cases where there are exceptlOnal circumstances or in cases . .. J' p) 7 where an earlier decision is seen to be manifestly wrong, we are of the view that the line of reasoning set out in Shipley is correct and accordingly would adopt it. For the foregoing reasons, the grievance is therefore dismissed. DATED this l1thday of March, 1993 jA:J -- WlLOW - Vice-Chairperson ~~ (Addendum attached) E. SEYMOUR - Hember F~.:! -~ ~ / '" -~!\ G S B FILE 1000/92 - 0 P S.E.U (Milks) - and - THE CROWN IN RIGHT OF ONTARIO (Ministry of the Attorney General) ADDENDUM Edward E Seymour, Union Nominee I concur with the Decision, however, the allegations made by the Union, if true, are disturbing Management acted shabbily towards the griever and, for whatever reason, it appears they gave her little support In these times when women are struggling in the workplace against some who refuse to regard them as equals, it seems that Management, in this instance, were only too willing to perpetuate this sexism by acceding to the wishes of a "support player," who did not want to deal with the griev~r simply because she was a woman This panel was unable to fully explore the details of this allega- tion, but if true, Management's behaviour with respect to the issue is nothing short of atrocious The alleged actions of Mr Belanger, particularly with regard to the above, and other unsubstantiated allegations, appear to be those of an individual seriously deficient in managerial skills . .,t - f" ,W Page 2 While I agree that there was no obligation for the Ministry to renew the griever's contract, an employee is deserving of respect, and the right to work in an environment devoid of the petty actions of a Manager who seems more interested in exercising power than managing the workplace in a manner which is fair to everyone < ( " ...; , c{ '- ' 1 - - ) Edward E Seymour, Union Nominee opeiu 343 .