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HomeMy WebLinkAbout1993-2039.Garrie.95-04-12 r.,-=-- ONTARIO EMPLOYES DE LA COURONNE I} CROWN EMPLOYEES DE L'ONTARIO " , , , '~','" ;;,,;c'O"""""'$""'''.''A'''''''~~=,,~V ') ,<0 q,\ 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT RECStV~ -;J- , " l2\' ,,' , ' , <:. (:< , " ,. ,,', ' .'.. ~~ ,\.(' 0" c\ BOARD DES GRIEFS \.jOcvl\:,:v':;, 3 \ P. APR 1 2~19~ \'1\-'<> c , 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELERHONEITELEPHONE (416) 326- 388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FIfJ$JJ1&EITfLECQPIE.. left326- 396 ....''-, "'" ........., l... ' APPEAL BOARDS """,---" GSB# ~O39/93 OPSEU# 93F979 IN THE MATTER OF AN ARBITRATION Under ,~ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Garrie) Grievor - and - The Crown in Right of ontario' (Ministry of Correctional services) Employer BEFORE H. Finley vice-Chairperson E Seymour Member D. Montrose Member , FOR THE M. Bevan GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE A. Gulbinski EMPLOYER senior Grievance Administration Officer Ministry of the Solicitor General & Correctional services HEARING October 5, 1994 I \.. , .. -..- ._- -- r ..- -~ GSB 2039/93 I I I DEe I S 10 N I ,~ .~ Mr. John Garrie, who was previously ~mployed as an unclassified Correctional Officer at the Windsor Jail, grieved on November 25, 1993, that he was "unjustly disciplinedll and "improperly dismissed" in September/October, 1992, and that his rights under the Crown Emolovees Collective Barqaininq Act s 18.2 (c) , and under the Collective Agreement had thereby been violated. He is seeking reinstatement to his previous position or equivalent, and reimbursement with interes't, for all lost wages, benefits and loss of monies due to the Employer's actions, from his last date of work which was September 20, 1992 I, At the outset of the hearing, the Employer raised a preliminary objection with respect to the jurisdiction of the I Board on the grounds that Mr Garriewas an unclassified employee I whose final contract expired on October 22, 1992, and that the, I Board had no jurisdiction with respect to the non-renewal or the reasons for non-renewal of the Grievor's contract The Employer cited the Public Service Act, sections 8 and 9 8 -(1) A minister or any public servant who is designated in writing for the purp,ose by him may appoint for alperiod 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 presiqes 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 R S 0 1980, c 418, s 9 - ~ - - - , - -- ~- Following the well-established jurisprudence of the Grievance Settlement Board on this issue, the Board ruled that it did not have jurisdiction with respect to the non-rE!newa1 of the Grievor's contract However, it did find'that it had jurisdiction for the period of the contract and therefore, it was prepared to hear evidence with respect to the alleged "discipline" and "dismissal" in the context of ~he contract which was to expire on October 22, 1992 --"" Having consulted with each other, at the suggestion of the Board, the representatives of both sides decided to proceed immediately and the hearing was completed on that day The Union called evidence from the Grievor; the Employer chose not to call evidence The evidence presented by the Union was therefore uncontradicted The viva voce and documentary evidence showed that Mr. Garrie began working at the Windsor Jail on January 22, 1991. He was employed under the following series of contra~ts January 22, 1991 to April 22, 1991 April 22, 1991 to October 22, i991 October 22, 1991 to April 22, 1992 April 22, 1992 to October 22, 1992 During this period, as well as carrying out his assigned duties, he participated in the four phases of ministry training and achieved the following results: Phase I 96 % Phase II 82 % Phase III 93.5 % Phase IV 90 % . These scores were accompanied by overall positive comments 2 " Similar comments were included in the two performance appraisals which were carried out in 1991 and in which he scored, for the most part, in the top category Mr. Garrie was also the rec ipient of commendation "prompt and 1 a for courageous action" following an altercation involving inmates which could have had serious consequences On September 22, 1992, Mt Garrie attended at the Windsor Jail to notify his Employer, in the person of Superintendent ~ - James Ross, that he had been charged under the Cr~minal Code with possession of marijuana for the purposes of trafficking He was informed that because of the charge, he could not work at the jail and that his name would be removed from the schedule Mr Garrie testified that he had been working as the Canteen Officer for the past 5 months and that he observed, at the time he came to notify his Employer of the charge, a schedule which showed him scheduled until October 28, 1992 and at least every Wednesday, which was Canteen Day, during that period. He would, he testified, have received other shi fts as well, because, as an unclassified Correctional Officer, he was on call He expected to receive a further contract. He was aware that It was being . prepared because of his attendance on on.~ occas1on during that perio~ at the pay-roll office to sign an attendance sheet he had forgotten to sign As confirmation of the fact that he was not to be scheduled, Mr Garrie received the following letter from Mr.. Ross, dated September 22, 1992, and sent to his residence It is alleged that you have been charged wi th a very serious Criminal charge(s} as of to-day's date Under the circumstances, I am notifying you that you will not work or enter the Institution for any reason until further notice. Please feel free to contact me if you wish or if you have any questions in reference to this matter The Shi f,t Supervisors have been informed that you are 3 - - - not to be used for work until further notice Shortly thereafter, Mr Garrie filed a claim for Unemployment Insurance benefits and i nf ormedErnployment Canada that he was "not' suspended" On September 30, 1992, Employment and Immigration Canada forwarded a form to the Win(jsor Jail which requested additional information on John Garrie, noting that the information which Employment and Immigration Canada had was that Mr Garr ie had been either dismissed or fired Superintendent -- Ross, gave the following explanation This Man is a Part Time contract employee It has been alleged that this individual has been charged with a criminal offence Due to the fact that we are operating a jail he is not permitted to work at this time On September 25, 1992, a staff person from the Correctional Services Office in North Bay, Ms. Donna Baumann, asked for information about John Garrie, over and above that which had been reported in the Windsor Star on the previous day. Specifically, she wished to know the duration of Mr Garrie's employment at the Windsor Jail, the type and termination date of his contract, whether or not the Regional Office had been informed and whether an investigation by the Investigations Branch was going to be requested Mr Ormsby, the Young Offender Unit Manager, provided the answers to the first three questions, stating that the Regional Off ice had' been informed and referr ing the matter to Mr Ross with respect to the question of an investigation and further inquiries Mr Garrie testified that he did not receive pay in lieu of shifts, nor did he receive two weeks' pay He also stated that he was not questioned by anyone and that when he delivered his recognizance to Mr. Ross he was handed the following letter but the matter was not discussed with him at that time or later 4 ---.- .. CONFIDENTIAL October 6/92 Mr J Garrie I Casual Correctional Officer 2 Windsor Jail Dear Mr. Garrie RE: CONTRACT --'''' This letter is to advise you that your con,tract as a Casual Correctional Officer at this Instibution will not be renewed Your [~] expiry dat'e of your contract is October 22, 1992. You are also instructed to return all items' that were issued to you which would include your Ministry's identification card. Yours Truly, SIGNED D STROUD, DEPUTY SUPERINTENDENT, . WINDSOR JAIL. On October 16, 1992, the Institution, under the signature of D Stroud, peputy Superintendent, issued an "Employee Separation/Work Performance Record" in which it was stated that Mr Garrie's employment period was from January 22, 1991 to October 22, 1992, when in fact, his last day of work had been September 20, 1992. The document defined the reason for separation as "Non-renewal of Contract" and also noted that, the quality of his work was "above average", he had a "good rapport with all levels of staff" and his attendance and punctuality were "very good" Mr Stroud answered the question of whether or not he would rehire this employee as follows Staff member was charged with possession of mar i j uana for the purpose of trafficking Once the trust of an employee 5 is lost, they do not fit into this type of environment The staff person from Employment and Immigration Canada spoke with Mr Ross after October 22nd and be f or:e November 9th, and noted, following this telephone conversation, that employer stated that although current contract ended on Oct 22/92 there is no reason to believe it would not have been extended as is their usual practice ,~ ~ the work was and is available beyond 22 Oct 92 & the contract would have been extended claimant has been a contr,act employee since he started with them I the reason he is no longer working is because of the incident that occurr~d. Based on the information from the conversation, this individual, C. Delisle, signed a "stop Payment", effective November 9, 1992. Mr. Garrie testified that he was told by the Employment Canada staff person that his un~mployment was "[his] doing" and as a result, he was assessed a penalty of 9 weeks. The Employer did not contest this documentary evidence Arqument Mr Mitch Bevan for the Union, acknowledged that an unclassified employee cannot grieve the non-renewal of a contract but submitted that the power which the EmplqYer has to terminate an unclassified employee's employment through non-renewal results in severe limitations to the entitlement of such an individual and therefore the Employer should be held to the strict boundaries of non-renewal He noted that evidence demonstrated the Grievor had become well qualified and had been an excellent employee and, that a charge laid by the police had terminated his career as a correctional officer one month before the expected 6 - - - ~ - --- ~ -- -- -- ---- ---- ---~ - -~- - -- -- ~ renewal of his contract No attempt was made, Mr Bevan submitted, to contact or accommodate the Grievor in any way He was, in effect, disciplined by being suspended "By going back into the Gr i evor' s Apr i I 22, 1992 - October 22, ~992 contract by one month", the Employer has, in effect, Mr Bevan argued, "stretched the boundaries of its power of non.:..renewal". The Employer cannot, he asserted, "be allowed to enter into an existing contract by telling the employee that he cannot work until further notice" He views the Employer's action as "trying .~ to get away with discipline without just cause" by terming it "a suspension from work" and the Employer had 'no cause because the cause "went away", in that the charges were eventually withdrawn He submitted that if, at the outset of an employee's contract, a situation arose in which the Employer alleged culpable conduct, then the Employer could simply wait out the contract and issue a notice of non-renewal, since unclassified employees cannot grieve the non-renewal of a contract Mr Bevan asked the Board to exercise extreme caution when considering the removal of an employee's right to grieve discipline. Mr. Bevan asserted that the Grievor was dismissed because of a "criminal charge", 'and that this is contrary to the Ministry's own directive. T.he " W 0 r k p I a"'c e Discrimination and Harassment Prevention" Directive which is one of the Human Resources Directives and Guidelines became effective in March, 1992 It applies to all ministries and Schedule I agencies subject to Management Board of Cabinet directives all employees, both classified and unclassified, including interns, summer students and co-op students, appointed under the Public Service Act; It sets out, among others, the following principles / The Ontario government as an employer is responsible for providing a workplace that is free from harassment and discrimination. 7 Employees have the right to fair and equitable conditions of employment wIthout discrimination or harassment because of race/color, anc,estry, place of origin, ethnic origin, language or dialect spoken, citizenship, religion, sex (including pregnancy) , sexual orientation, age (16-64), marital status, fami ly status, actual or perceived disability [ . ] criminal charges o~ cr iminal record '... ... I As well, this directive sets out a complaints procedure Mr Bevan also argued that the Grievance Settlement Board jurisprudence has established that failure by the Employer to abide by its own directives is fatal to a case. The Board, Mr. Bevan submitted, should fashion a remedy, which demonstrates to the Employer that it must work within both the jurisprudence of the Grievance Settlement Board and its own directives. Mr Bevan submitted that the Grievor, Mr Garrie, should be put back in his job for a period of one month and should be entitled to retroactivity since the evidence shows there ~as no just cause and the Employer did not attempt to prov,e otherwise. It is, he maintained, uncontradicted that the Grievor would have been givel1 at least one more contract. Ms Anna Gulbinski, for the Employer, acknowledged that the Employer had some liability for the period from September 20 to October 22, 1992, at least for pay in lieu of notice, if this had not already been provided She went on to argue that there was no evidence to show that there had been a conscious action on the part of the Employer to sever the employment relationship in September, only a determination that the Grievor was not to work "until further notice" How, she questions, could the withdrawal of charges one year hence have impacted on the determination of the Employer in September, 1992 It is, Ms Gulbinski, asserted, 8 ------------- ~ ( the Employe~'s position that the suspension was non~disciplinary, that there is no evidence to show that there was any intention on the part of the Employer not to renew "on that day", despite the non-renewal letter of October 6, 1992 With respect to the allegation of the Union that Mr Garrie has been discriminated against, Ms Gulbinski maintained that a determination under the Workplace Discrimination and Harassment Policy is beyond the jurisdiction of the Grievance Settlement ~- Board Mr Bevan replied that the Board can consider discrimination under Article A of the Collective Agreement. This article reads as follows: ARTICLE A - NON DISCRIMINATION/EMPLOYMENT EQUITY All There shall be no discrimination practised by reason of race, ance'stry, place of origin, colour, ethnic or,igin, citizenship, creed, sex, s e'x u a 1 orientation, age, marital status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code ( OHRC) . This section reads as follows . 10.-(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a groUp of persons who areideQtified by a prohibited ground of discrimination and of whom the person is a member, except where, {a} the requirement, qualificatio~ or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 16, that to discriminate because of such ground is not an infringement of a right. He asserted that the Workplace D i scr imination and Harassment poliCY is not the only pol icy to be considered, and it must be 9 _ u ~ ~ ~ _""'--~- _.. '---~ =---=~--,------~.--,=-,==-c-~ ~-=-_==-. "'--'C. - -.- -- ~-- """,n~"'" __ _~ - - ---------- reconciled with the business of the Ministry at hand Decision Mr Ross is the Superintendent of Windsor Jail and in that capacity he is responsible for the safety and the custodial care of the inmates sentenced or remanded to the Insti.tution. He is also responsible for the health and safety of employees, as indeed they are themselves It is reasonable to assume that the ~,;"- inmate population of this particular jail, as it i!s with others, includes during most periods of time, individuals who have drug I involvement with and/or addictions to banned substances On September 23, 1992, Mr. Ross decided that John Garrie, who had been charged wi th but not convicted of a drug-related cr iminal offence, namely possession of marijuana for the purposes of trafficking, should be removed from the schedule "until further notice", as the letter of September 22nd, states, thus preventing him from having contact with inmates at the Institution and, as well, preventing the inmates at the Institution from having contact with him The Employer presented no evidence to indicate that it had grounds at that time, to conclude that Mr. Garr ie was either guilty, or innocent of the charge The Board has reviewed the documentary evidence and noted some statements of the Employer can be interpreted as not indicating finality, and others which clearly do indicate finality An examination of the documentary evidence illustrates this. In his letter of September 22, 1992, Mr Ross ,states that It is alleged you have been charged . Under the circumstances (the fact that the Grievor has been charged] you will not work or enter the Institution for any reason until further notice you are not to be used for work untll further notice While Mr Ross qualified his statement with "until further notice", the statement was in the context of knowing that Mr 10 ------ - - ----------- Garrie's contract would expire within a few weeks On or about September 30th, 1992, Mr Ross wrote to Employment and Immigration Canada that "This man is [not 'was' ] a part time employee" and he referred to the fact that it had been "alleged" he had been charged (In actual fact, the documents which Mr Garrie presented to Mr Ross were proof that he had already, been charged In other words, the charge was a fact not an allegation It wa s however 'alleged that he was in possession of marijuana for the purposes of trafficking ) Mr Ross concluded ,~ ~ by stating that "Due to the fact that we are operating a jail he is not permitted to work at this time" This statement does suggest that he might be able to work in future Also, the statement gives the impression that there is a rule which states that an employee of a jail who has been charged ~ith a criminal offence cannot work in a jail. No evIdence was entered to support the existence of such a policy or directi~e. On October 16, 1992, Mr. Stroud wrote to the Grievor informing him that his contract would not be renewed. He gave no reason On the same day, Mr stroud completed the "Employee Separation/Work Performance Record", noting that the Grievor was' "charged with possession of marijuana for the purpose of traffiCking " and . stating that "Once the trust of an employee is lo~t, they do not fit into this type of environment" From Mr. Stroud's comments, it appears that the point at which the trust is l:ost is when an employee is charged and that whether he or she is ultimately proven innocent or guilty is irrelevant Shortly after, on October 22, 1992, Mr Ross informed an Employment and Immigration Canada employee that the Grievor, although a contract employee, would most probably have continued to work were it not for "the incident that occurred " This is capable of at least two interpretations and one does not know with any certainty whether or not Mr Ross was referring to 'the charge' or to the alleged 'possession' However, one can conclude that whichever, it wa s , charging, with the guilt or innocence undetermined, or an assumption that the Grievor was found with marijuana in quantity 11 -- ~~~- ~ ~---- --- ----- sufficient for trafficking, that either situation would have resulted in his not working, and in a severing of the employment relationship ~ The Board has concluded, following a review of the documentary evidence and after hearing the evidence of the Grievor, that Mr Ross and Mr ,S t r 0 u d , a c t,e d either on the assumption that Mr Garrie was guilty as charged or considered that alleqations of criminal activity were sufficient to suspend ,~ ~ him from work, not renew his contract and terminat~ his career as a Correctional Officer During its deliberations, the Board also reviewed OPSEU (Mandar) and The Crown in Riqht of ,Ontario (Ministry of Correctional Services) GSS It 87/93, (Waisglass) issued March 15, 1994. -It sets out, in part, a section af the Ministry's "Policy and Procedures for Adult Institutions", in particu~ar the subject of "Emp_loyees Charged with or Found Guilty of Cri~inal Offenses" at pages 13 and 14 PROCEDURES: ********* 5. In consultation with the regional director/manager the superintendent shall then conduct a full review of all available information concerning the employee's charge and employment record, including information provided by the inspector, in order to decide on the most appropriate course of action to be taken' with the employee [Emphasis added] While each case must be judged on its own merits, the following courses of action are avai~able to superintendents a) no action b) job reassignment within the parameters of the Collective Aareement and/or the Public I Service Act; I 12 -------- - ,-----==-==-,.=-,--~ ~ ---- c) leave of absence, or d} disciplinary action, up to and including " dismissal " , Guidelines Decisions involving employees charged with or found guilty of criminal offenses shall be based on a comprehensive evaluation of all relevant and available information and on the real or potential effects of the ~ ~ charges on the ministry's legitimate and substantial interests Cases shall always be decided individually on their own merits. When making decisions, superintendents shall cons ider the following information where available: a) the nature and seriousness of the criminal charge; b) whether or not the offense occurred ih the course of employment with the ministry; c) any explanation or statement of mi tig,ating factors for the offense provided by the employee; d) whether or not the empioyee is remanded in custody, sentenced to custodial term or SUbject to future legal proceedings; e) the position, duties and responsibiliti~s of the employee and the impact that the criminal charge may have on the employee's abilities to perform those duties and responsibilixies; f) the impact that the criminal charge may have on other employees and on the legitimate and substantial interests of the ministry; g) the employment record of the employee; and h) the existence of a prior criminal record of the employee, subject to the provisions of the Ontario Human Riqht Code (sic) ********* Employees who are charged with or found guilty of criminal offences may be unable to fulfill th~ir duties and responsibilities because: a) they are detained pending legal proceedings or have been sentenced to a custodial term; b) they may have breached the position of trust 13 that is an intrinsic part of employment in the public service or have committed a breach of the employer-employee relationship c) they may be unable to maintain satisfactory working relations with peers and/or offenders in their care The Board reviewed the evicence and makes the following findings ~ ~ that i twas reasonable, in the context of a correctional institution, for the Sup~rintendent to prevent the Grievor from exercising his correctional officer dut;ies until the allegations had been dealt with either through the internal investigation and review system or through the criminal justice system; I . that Mr. Ross and Mr. Stroud made conclusions about the guilt or innocence of the Grievor and assumed that he was guilty as charged; . tha t Mr Ross made no attempt to accommodate the Grievor; that neither Mr Ross, nor Mr. Stroud discussed the matter with the Grievor; . . that Mr. Ross did invite the Grievor to contact him if he wished to do so or if he had any questions in reference to his prohibition from ~nteringand working at the Institution; . that the Grievor did not avail himself of Mr. Ross's invitation . that the Employer did not undertake an investigation and/or review In Mandar, suora. the Employer had carried out an investigation, followed the guidelines and the Deputy Superintendent was then criticized for not "giving the guidelines sufficiently serious consideration in his decision-making process'" and for failing "to apply the policy directives 14 - -- appropriately" ( At pages 15 and 17 respectively ) In the instant case, Mr. Ross undertook no sort of investlgation himself nor did he delegate such an investigation to anyone, or request t_hat one be carried out by the Investigations Branch. In fact, prior to placing a memorandum dated September 25, 1992, from Mr. ormsby (Exhibit 11) recounting a telephone conversation with Ms Baumann of the Correctional Services Office in North Bay, in the " Incident file" he appended the following note ~ This matter was resolved by Mr Ormsby (answe'red) . No need for an inspector According to the procedures cited above ".. the superintendent ~hall then conduct a full review " [Emphasis added] However, it is the opinion of this Board, that Mr Ross and Mr Stroud were influenced by the fact that the Grievor's contract was to expire within a two-week period and that they chose the route which appeared the easiest at the time, disregarding the procedures and any rights the Grievor might have under the Collective Agreement or any procedural and substantive rights the Grievor might benefit from under the "Workplace Discrimination and Harassment Prevention Directive", the "Policy and Procedures for Adult Institutions" or the, Ontar i 0 Human Rights Code Their chosen route involved by-passing the Ministry policy for dealing with "Employees Charged with or Found Guilty of Criminal Offenses" thereby depriving the Grievor of the opportuni tyof continuing and developing his career as a Correctional Officer The uncontradicted evidence which was presented to the Board, shows his performance to have been more than satisfactory, the work to have been available 'and the renewal of his contract expected The Board finds that the Employer has failed to follow its own procedures for dea ling with "Employees Charged with or Found Gu i 1 ty of Criminal Offenses", set out in its Policy and Procedures for Adul t Institutions. These procedures, along with 15 -"- ., -~- - I , ,. I the "Workplace Discrimination and Harassment Prevention Directive" are safeguard$ against arbitrary actions and while they may seem cumbersome at times, adherence to them offers protection to both the Employer and the employees Failure to follow them may have serious implications for an 'employee and the fact that the employee is unclassified, should not mean that he or she is subjected to arbitrary treatment The Board recognizes that unclassified Corrrectional Officers do i have the not same protection classified Correctional Officers under the .~ -~ as Collective Agreement Nonetheless, they do have ~ basic right to be presumed innocent, until proven guilty. The procedures recognize this and help to ensure it. Based on the uncontradicted evidence, the Board has before it, a situation in which a trained, unclassified Correctional Officer with a record of good performance for the duration of his employment, expected and was expected to have, at least, a further six-month contract. On the basis of all'egations, and a charge relating to matters outside the workplace which was later withdrawn, he has been deprived, without investigation or review, , of the final month of his ~xisting contract, the expected renewal of a further six-month contract, and a career as a Correctional Officer. The Board recognizes the Superintendent's right and indeed responsibility to respond to a criminal c~arge involving drugs by preventing the employee from carrying out his duties as a Correctional Officer The difficulty arises, however, when this restriction is not followed up promptly' with the investigative and review procedures set out in the Ministry policies The Board acknowledges that considerable time has passed since September, 1992 and the fact that it has no jurisdiction to deal with the non-renewal of an employee's contract It is of the opinion, however, that the Grievor, based on the record of his performance as presented in uncontradicted evidence, deserves 16 ,- - , .. the opportunity of undergoing the investigation rand review which the Employer failed to undertake, and of having the Employer consider those results Accordingly, the Board orders the Employer to undertake a review with respect to the Grievor's criminal charge and to tfollow this up, according to the procedures and guidelines with which the Ministry is required to comply, that is the Policy and Procedures for Adu'lt Institutions, "Employees Charged with or Found Guilty of Crimin~l Offenses" ,- As we II, f 0.11 0 win g Ministry of Correctional Services & OPSEU (Miller and MacPhail) GSB 531/82 (Verity), which has been judicially reviewed and stands for the remedies for unclassified grievors, of reinstatement for the balance of a contract, and reti::oactivity, the Board ,requires the Employer to reinstate the Grievor for the balance of his contract Further, the Employer is to provide to the Grievor retroactivity from 20 days prior to the date of the filing of his grievance, (November 25, 1993) to the date of reinstatement . The payment is to be based on the Grievor's average regular "hours worked, excluding overtime, during the first 8 months of 1992 The Grievor's tota~ income (that is, income from other sources as well) for the retroactivity period should not exceed his income from regular hours from the Ministry of Correctional Services for the same period of time prior to S~ptember, 20, 19.92. 17 -- -------------- v:-- ~ The Board will rema i n seized of this matter to assist the parties with the implementation of the order, should assistance be required "- f Dated at Kingston The 12th of April, 1995 - "1 Dissent" (dissent to follow) D C Montrose, Member 1 - /Dissent ~a- - E. Seymour, Member Concur / 1 L ..-. r ~ ii , 18 - -~- - -- - ' - . ._-~- -~~ -- GARRIE \ - 2039/93 DISSENT EMPLOYER MEMBER I have reviewed the decision of the majority and must respectfully dissent from their decision This award follpws the pattetn of a~ards spawned by Ministry of Correctional Services, & OPSEU (Millar and MacPhail) GSB 531/82 (Verity), which stands for the remedies for unclassified grievors, of reinstat~ment for the balance of a contract, which in ~y estimation is correct, and retroactivity which I believe is fundamentally wrong The Public Service Act sections 8 & 9 8 -( 1) A minister or any public servant who is designated in wri'ting for the purpose by him may appoint for a period of not more than one y~ar 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 9 A person who is appointed to a position in the public service for a specified period ceases to be public servant at the expiration of that period R S 0 1980, c 418, s 9 The Act is clear, when the contract ends, it endsF there is no more, it is final No notice of termination is required, (although by courtesy is given in some cases) The contract automatically self-destructs on its termination date I agree with Millar & MacPhail to the extent, an all edged infra,ction by an J . employee which cancels his/her contract during it's term and subsequently is " found to be "in error" by a Board of Arbitration, the incumbent is allowed to return to work to fulfill the term of the contract until it expires In this .. instant case (Garrie) approximately one month is involved J The nature of the unclassified empJoyee's contract is 'basically to "fill in" shifts let vacant by classified employees, on account of sickness, leave of absence, vacation, etc The unclassified employee has no guarantee of any hours per day, per week or even during the term of the contract An'unclassified employee ordered back by a Board of Arbitration to fulfill the balance of a contract is still subject to the possible condition of no employment, e g everyone gets healthy, unclassified do not work I take the position, to grant hours paid as if they would have qeenworked beyond the expiry of the contrapt, is fund~entally wrong The assumption an unclassified employee will work the same hours in the future as in the past, based on average hours worked in the past is without foundation A layoff or diminished operations at the facility would leave unclassified employees witl1 little or no employment This condition could result in ~he ab~urb possibility of classified employees on layoff_and an unclassified employee being paid for mythical hours not worked For the above reasons, the grievor should be reinstated for the period for approximately one month (September 20 to October 22, 1992 being the actual period of suspension) or pay in lieu of actually working \ cl -:- -Mj D C Montrose Employer Member ) -- -