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HomeMy WebLinkAbout1995-0113HOOD97_06_27 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 113/95 OPSEU # 95C453 IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hood) Grievor - and - the Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE o V. Gray Vice-Chair FOR THE M Keys ONION Grievance Officer ontario Public Service Employees Union FOR THE N Campbell EMPLOYER corporate Staff Relations Officer Management Board Secretariat HEARING June 19, 1997 Decision The grIevance referred to arbItratIOn In thIS proceeding alleges that Bruce Hood's seniorIty or length of contInUOUS servIce has not been correctly calculated In accordance wIth the parties' collective agreement. The grIevor IS a bIOlogIst. He was employed by the MInIStry In the unclas- SIfied service on a seasonal contract from June 15, 1987 to September 28, 1987, when he was appoInted to the classified service. Upon completing his probation- ary perIod, he was credIted wIth a contInuous servIce date of June 15, 1987 The Issue raIsed by the gnevance IS whether the gnevor was or IS entitled to credIt for employment prIOr to June 15, 1987 The grIevor was involved in a Jomt proJect of the MIffistry and The Metro Toronto and Region ConservatIOn AuthorIty ("the MTRCA") from October 1977 to June 12, 1987 He was treated as though he was an employee of the MTRCA durmg that penod. The UnIon claIms that the gnevor ought to have been em- ployed m the unclasSIfied servIce durIng that time, and ought therefore to be treated as haVIng been so employed for purposes of calculatIng lus contInUOUS servIce date. The employer dIsputes the union's claIm on the merIts. In hIS openIng statement, the employer's representative also took the posItIOn that the gnevance should be dIsmissed as untimely, both on the baSIS of the collective agreement time limIts for assertmg and pursumg grIevances and by apphcatIOn of the doctrIne of laches because the grIevor's delay had preJudIced ItS defence He further asserted that the Issue raIsed - whether the grIevor was an em ployee of employer at a partIcular time - was not wIthIn thIS Board's JurisdIC- tion because prior to 1993, the OntarIO PublIc ServIce Labour RelatIOns Tribunal constituted under the Crown Employees Collectwe Bargammg Act, R.S 0 1990, c. C 50 ("old CECBA") would have had JUrISdICtIOn to determme It under sectIOn 40 of that Act. - 2 - Facts The partIes agree on the followmg facts. 1 The grlevor was employed on student contracts at Bass Lake Provinclal Park durmg the summers of 1973, 1974 and 1975 2. The gnevor was employed on a number of contracts at Bass Lake Provincial Park throughout the penod June 1976 to October 1977, with a 5 week break m February of 1977 ThIS penod of employment includes a contract posItIon as a mema designer (Exhibit DesIgner 1) at Wasaga Beach Provmclal Park to whIch the gnevor was the successful applIcant in a competition. Durmg this tune period the gnevor was appointed under the Public Service Act, was on the MinIstry'S payroll, and was a member of the OPSEU bargaining unit covered by the collective agreement between Management Board and the Umon. 3. Begmnmg m September 1977, the Mmlstry entered mto a senes of agreements with The MetropolItan Toronto and Region ConservatIOn Authority (MTRCA) for the purpose of designing a fish and wildlife mterpretatIOn and educatIon program at the Kortright Center for Conservation, a facility of MTRCA. Original agreement is con tamed m Append~x A. A series of extensions followed thIS agreement. The agreements provIded for the shared fundrng of the project. The grievor was employed by MTRCA to work on thIs project as a bIOlogISt wIth the title of Wildlife Theme Coordmator It was agreed between the partIes that the MmIstry of Natural Resources would fully fund the posItIon of WildlIfe Theme Coordmator In 1982, MTRCA mvoiced MNR for thIs fundmg. 4. The program was drrected by a steermg committee as IS set out m paragraph 6 of Appendrx A. Tins steering commIttee was comprised of representatIves of both MTRCA and MNR. Representmg MNR Blair Dawson, RegIonal BIOlogISt, David Hogg, Maple Dlstnct FIsh and WildlIfe SupervIsor, Glenms SmIth, Ron Desjardm and Angus Norman, WildlIfe ExtensIOn BIOlogIst. Representmg MTRCA Tom Barker and Alan Foster Tom Leach a professor at York UniversIty also sat on thIs commIttee. 5 Gnevor entered into a contract of employment wIth MTRCA m the posItIon of BIOlogISt posItion, WildlIfe Theme Coordmator Appendrx B ThIS posItIOn was advertIsed wlthm the Mmlstry of Natural Resources. 6. For the penod October 24, 1977 to June 14, 1987 the gnevor worked at the Metro & Toronto RegIOn ConservatIon Authonty (MTRCA) as per letter of confirmatIOn AppendIX C. The gnevor was not appomted under the PublIc ServIce Act durmg thIS tIme penod, dId not pay OPSEU umon dues and was not a member of the OPS PenSIOn PIan. 7 While domg pubhc programmmg, the grIevor wore an MNR umform. 8. Gnevor receIved two performance appraIsals from MTRCA. 9 The gnevor's Record of Employment from MTRCA was Issued upon hIS termmatIOn from MTRCA Append~x D - 3 - 10 The gflevor contributed to the Ontaflo Mumcipal Employees Retirement System (OMERS) for the years covermg 1982 to 1987 Appendix E and F [He] was also a member of the MTRCA benefit plan. 11 The gflevor was employed on a full tune Group 3 seasonal contract from June 15, 1987 to September 27, 1987 as a BiologIst 2B in Maple District with the Mimstry of Natural Resources. 12. The grievor was the successful apphcant m a competitIOn for a full-time classuied pOSItIon as DIstrIct BIOlogIst 2B WIth the MmIstry of Natural Resources, and was appomted to the classIfied service effective September 28, 1987 AppendtX G In accordance WIth rules m place at the time, the Ministry applied Article 25 1 (b) to arrIve at a continuous servIce date of June 15, 1987 (begmnmg of perIOd of unbroken full time service immediately prior to appomtment) Summary of facts relating to the gflevor's work hIstory IS con tamed m Appendtx H 13 December 16, 1994 grievor grieved that seniorIty has not been properly calculated Appendtx L. The imtial 1977 agreement between the MInIstry and MTRCA, referred to In paragraph 3 of the agreed facts, provided as follows. WHEREAS the Crown and the AuthOrIty are desirous of co-operatmg m the development of a fish and wildbfe mterpretIve programme at the KortrIght Centre for Conservation, AND WHEREAS for the purpose of accomphshing ItS objects a ConservatIon Authority may enter mto agreements with MmIStfles of Government, NOW THEREFORE THIS AGREEMENT WITNESSETH that in conSIderatIOn of the mutual covenants and agreements herem after con tamed the parties hereto agree as follows: 1 (1) The Crown and the AuthOrIty hereby agree to co-operate for two years from the 1st day of October 1977 m the deSign of a fish and wildlife :'.;.c. mterpretation and educatIOn programme, heremafter referred to as the "project", at the Kortright Centre for Conservation. (2) The specIfic objectIves of the project are. (i) to research and plan mdoor exhibIts; (ii) to research and pIan outdoor demonstratIOns; (in) to research, plan and develop audIO-VIsual mateflals, (iv) to produce booklets and other mformatIVe matenals for dIstributIOn, loan and sale, (v) to mtegrate the fish and wudbfe component WIth land, water and forests components of the proJect; and (vi) to develop and test, on a hmIted scale, interpretIVe programmes for teachers, students and the general publIc. 2. For the purpose of carrymg out the project the Crown and the AuthOrIty agree to hIre, contmgent upon funds bemg available therefor - 4 - ..- (i) one bIologist for a penod commencmg with the 1 at day of October, 1977 and ending WIth the 30th day of September, 1979 to develop philosophIes, themes and overall programme direction, (ii) one bIOlogist for a penod commencmg WIth the 24th day of October, 1977 and endIng WIth the 30th day of September, 1979 to aSSIst the bIologISt referred to m subparagraph (i) and to provIde expertise m photography, graphIcs and dIsplay design, and (ill) other seasonal staff as required. 3. The biologists mentioned in paragraph 2 shall be under the direct supervision of the Supervisor of the KortrIght Centre for Conservation and shall- be subject to the regulatIOns applIcable to the employees of the AuthOrIty as set forth m Its personnel arnmmstratlOn manual and the bIOlogIsts shall supervISe the seasonal staff referred to m paragraph 2. 4. (1) The Crown and the Authonty shall share equally m the funding of the project, inclUSIve of salaries, benefits and travelling expenses required for the project, contmgent upon funds being available (2) The AuthOrIty's share of the costs shall be as follows: (i) For the year 1978, $15,000 or 50% of the total expendIture, whIchever is lower (ii) For the year 1979, $17,000 or 50% of the total expendIture, whIchever in lower 5 The AuthorIty shall prOVIde office space, supplIes and eqUipment, secretarIal servIces, audIo-visuals and develop all demonstratIOn materials and prmtmg of informative brochures and pamphlets. 6. The Crown and the Authonty agree that regular meetmgs of a steermg commIttee made up of representatives of both partIes shall be hold at least once every month to gUide, assist and review the project to assure that the objectives of the Crown and the Authonty are bemg met on schedule to the satisfactIOn of both parties. Resource personnel of the Crown and the Authonty shall be consulted by the steering commIttee as required. 7 The Crown and the Authority agree that wntten reports shall be submItted to the steermg commIttee at least once every three months outlinmg the progress of the project. Appendix B referred to In paragraph 5 of the agreed facts IS a letter to the gnevor from an offiCIal of the MTRCA. The letter saId. Re Appomtment BIologist Kortnght Centre for ConservatIon Further to your applIcatIOn to The MmIstry of Natural Resources, I am pleased to confirm that you have been appomted BIOlogISt assIgned to the Kortnght Centre for ConservatIOn at a salary of $27451 per week, commencmg October 17, 1977 or as soon after thIS date as you can be available. I have your applIcatIOn to The MmIstry of Natural Resources, however I would appreCIate very much U you would complete and return to me, at your earlIest conveOlence the Authonty applIcatIOn for our files. - 5 ThIS is a temporary staff appointment to the Authority wIth your salary and position subject to review-pnor to the end of March, 1978, The Authority and the Kortnght Centre for ConservatIon staff are looking forward to workmg with you on thIs challengmg proJect. The grIevor did fill out an applicatIOn for employment on MTRCA's form prIor to commencing work at the Kortright Centre on October 24, 1977 The grIevor testified that he was IntervIewed for the positIOn by three people. two from the MInistry - BlaIr Dawson and Lloyd Mayeda - and one from the MTRCA - Tom Barber He stated that In the penod 1977 to 1982 he submItted time sheets to the MInIstry and hIS pay cheques were Issued by the OntarIO Government. StartIng in 1982 he submItted hIS tIme sheets to, and re- ceIVed hIS pay cheques from, the MTRCA. DurIng the period between from October 1979 to the spring of 1985, the grIevor developed and presented educatIOnal programs, pubhcatIOns, dIsplays, outdoor demonstratIOns and audIO-VIsual productIOns reflectIng the MInIStry'S fish and WIld hfe programme. From the spring of 1985 to the sprIng of 1987, the grIevor worked on preparIng a resource kIt for teachers He created a loose-leaf volume of lesson plans that was pubhshed JOIntly by MTRCA and the MInIstry The gnevor stated that he prepared the resource kIt under the "supervIsIOn" of Blair Dawson. He said It was hard to say who hIS "supervisor" was prior to that, because he worked Independently, but dIrectIOn as to what he was to do came from BlaIr Dawson and the steermg commIttee referred to In paragraph 4 of the agreed facts He testified that Mr Dawson told hIm that he was wearing a Mm- Istry umform whIle dOIng pubhc programmIng at the MTRCA's Kortnght Centre so that the MInIstry'S role In supportIng the program could be recogmzed. The grIevor IdentIfied hIS SIgnature on an MTRCA employment contract form by whIch he acknowledged in May 1979 that hIS employment at the Kor- trIght Centre for the perIOd Apnl 1 to September 30, 1979 was temporary He also admItted reCeIVIng a wntten Job appraIsal by an MTRCA offiCial m 1983 that reflected hIS bemg an employee of the MTRCA. With reference to hIS havmg - 6. begun contributmg to the OMERS penSIOn plan m 1982, the gnevor saId thIs "move" was "InItiated" by Mr Dawson. He said Mr Dawson told hIm at that time that there was gomg to be a mandatory reqUirement that MInIstry employees be laId off for three months every year The gnevor testified that putting hIm on the MTRCA payroll gave hIm benefits he would not have had as a MInIstry employee and was a way around the 3 month layoff policy It is clear from hIS testimony that at that time he preferred year-round employment. The grievor testIfied that when he was appointed to the classified servIce m 1987 he raIsed the questIOn of credIt for hIS earher employment at the Kor- tnght centre. He spoke wIth his DIStflCt Manager's secretary, who he understood was the personnel officer for hIS area. She saId no There was no UnIon represen- tatIOn in his area at the time. He dId not pursue the Issue then. He raIsed It m 1994 because he saw people bemg surplused and reahzed the increasmg impor- tance of hIS contmuous servIce date. By then there was a UnIon steward m hIS work area. Argument Anticlpatmg the employer's argument that the grIevance should be dIS- missed for laches, the unIon's representative argued that the faIlure to properly credIt senIority was a contmumg violatIOn to whIch the doctrme of laches IS In- apphcable, cItmg the Board's deCISIOn m Konya, 494/83 (August 28, 1985, Rob erts) With respect to the JunsdictIOnal argument, the unIon's representative CIted the Board's deCISIOns In Unwn Gnevance, 1257/86 (August 26, 1987, Bar- rett) and Ally et al, 1036/90 (January 22, 1991, Kaplan) for the proposItion that pnor to the repeal of old CECBA, thIS Board had concurrent JurisdIction to de- termIne whether someone was an "employee" as that term was defined by old CECBA where the questIOn arose III the framework of a gnevance otherwIse properly before It. The unIon's representatIve argued that the seven factors enumerated by the OntarIO Labour RelatIOns Board In Labourers' Internatwnal Unwn of North 7 - Amenca, Local 183 v York Condommmm Corporatwn No 46, [1977] 0 L.R.B Rep 645 should be consIdered in determin10g the questIOn whether the grIevor was an employee of the M10Istry or of the MTRCA dur10g the relevant perIOd She revIewed the eVIdence wIth respect to each factor' 1) the party exercIs10g di- rectIOn and control over the employees do1Og the work; 2) the party bear10g the burden of remuneratIOn, 3) the party Impos1Og dIscIphne, 4) the party hiring the employees; 5) the party with the authority to dismIss the employees, 6) the party whom the employees perCeive to be theIr employer; and 7) the eXIstence of an 10- tentIOn to create the relatIOnshIp of employer and employee. She submItted that whIle some factors were 1OconclusIve and some favoured find10g the MTRCA to be the employer, on balance they pointed to the MInIstry's be10g the employer The umon's representative acknowledged that the applIcable prOVISIon of the collective agreement gave credit only for employment as an unclassIfied em- ployee, and that the grIevor had not been appo1Oted as an unclassIfied employee dur10g the penod 10 issue She submItted that because the gnevor was 10 sub- stance an employee of the Mimstry and was performmg the sort of work that would be performed by employees 10 the clasSIfied or unclassIfied servIce, he should have been appomted to the unclassIfied servIce for the period m question and should therefore be treated for seniority purposes as though he had been so appo1Oted. The employer's representative argued that It was wIth10 the statutory authonty of the MTRCA to engage WIth a Mmistry m a Jomt proJect of the sort reflected 10 paragraph 3 of the agreed facts. It was also wIthm the MTRCA's statutory authonty to employ someone to work on that proJect, as It dId here He submItted that the 10put of the steering committee and of BlaIr Dawson WIth re- spect to what the gnevor did on the proJect was entIrely conSIstent WIth MTRCA's be10g the gnevor's employer 10 substance as well as form. He argued that the government often funds varIOUS agenCIes to carry out speCIfied tasks, and that by do1Og so It does not become the employer of persons employed by the agenCIes to carry out those tasks 8 - The employer's representative further submItted that under the current Pubhc Serv~ce Act no one can decIde that an mdlvldualls a Crown employee or publIc servant If the Crown has not expressly appointed the mdlvldual to that status. s. 8 1, Publ~c Serv~ce Act, R.S 0 1990, c. P 47 as amended by S 0 1993, c. 19 Even under the legIslatIOn m effect durmg the perIOd m questIon, an unclas- SIfied employee was a person appointed by a Mmister to the unclassIfied service He submItted that because the grievor was not an unclassIfied employee durmg the period m Issue, he is not entitled to credIt for that perIOd m the calculatIOn of ms contmuous servIce date. Decision When the grievor was appointed to the claSSIfied servIce m 1987, article 25 1(b) of the collectIve agreement then m effect governed the calculation of the gnevor's continuous servIce date. 251 An employee's length of contmuous servIce will accumulate upon completIOn of a probatIOnary period of not more than one (1) year and shall commence (b) from the date on whIch an employee commences a penod of unbroken, full tune service m the pubhc servIce, unmeillately pnor to appointment to the ClassIfied ServIce, "Unbroken servIce" IS that which IS not mterrupted by separatIon from the public servIce, "full tIme" IS contmuous employment as set out m the hours of work schedules for the appropnate classIfications, The words "publIc servIce" had the same meanmg as m the Pubhc Sermce Act ("the PSA") see Konya, supra. To have served m the publIc servIce wIthm the meanmg of artIcle 25 1(b) as It then was, an employee had to have been ap- pomted under the PSA by the LIeutenant Governor m CounCIl, the CIvil ServIce CommISSIOn or a mmlster As a result of subsequent amendments to the collectIve agreement, from and after July 24, 1996 (see Umon Gnevance, 487/96 (July 24, 1996, FIsher)) the -9 grIevor was entitled to a contmuous servIce date calculated m accordance wIth clause (b) of what IS now Article 18 1 (Clause (b) is the pertment clause notwIth- standmg that the grIevor's last unclassIfied employment prIOr to hIS appomt- ment to the classified service was "seasonal." see Guthne and Nguyen-Black, 0066/96 (May 30, 1997, Gray) ) ArtIcle 18 1(b) reads as follows 18.1 An employee's length of contmuous servIce will accumulate upon completion of a probationary perIod of not more than nine (9) months and shall commence: (b) from the date estabhshed by addIng the actual number of full tune weeks worked by a full time unclassuied employee durmg hIS full-tune employment back to the fIrst break m employment whIch IS greater than thIrteen (13) weeks; or It IS common ground that "unclassIfied employee" m clause 18 1(b) means an employee in the "unclaSSIfied servIce" as defined by the PSA, whIch IS that part of the publIc servIce to whIch persons are appomted by a mInIster Although dIf- ferent words are used, the old and new provISIOns focus on the same kmd of em- ployment. The issue here is not Just whether the grIevor was (or ought to be treated as having been) an employee of the Crown in the perIOd m questIOn, It IS whether the grIevor was (or ought to be treated as havmg been) a full-hme employee m the unclassified service Moreover, if the grievor was not an employee dUring a period of more than 13 weeks ImmedIately prior to June 15, 1987 (when he commenced what was clearly employment m the unclaSSIfied servIce), then It does not matter whether the nature of ills employment at any earlier time would have satisfied the test. In Konya, supra, the Issue was whether the grIevor could have credIt un- der the old language of artIcle 25 1(b) for a penod of tIme durmg whIch he pro- vided electrical deSIgn servIces for the MinIStry pursuant to a contract between the Mmlstry and an employment agency that, m turn, contracted for the grIevor's servIces through hIS personal corporatIOn. The employment agency bIlled the Mmstry for the hours worked by the gnevor, and thereafter paId the 10- grIevor's corporation for those hours m accordance wIth Its arrangement WIth the grIevor When the grievor was later appomted to the classIfied servIce, none of hIS duties changed. "He remamed in the same office performmg the same electrI- cal design dutIes as he had when he was supplymg his servIces under the above- described contractual arrangement." The issue in Konya was framed as one of mterpretatIOn. whether the CIr- cumstances that eXIsted prIor to the grIevor's appointment to the classIfied serv- ice amounted to employment m the pubhc service wlthm the meamng of article 25 1(b) as it then read. The Issue raIsed by the grievance having been character- Ized as one of interpretation, the Board ruled that It was about a contmumg VIO- latIon and that, accordmgly, laches would not bar It m so far as the remedy sought was prospective. On the merits, the Board noted that one could not be employed in the pubhc service wIthout beIng appomted to the pubhc service. It found that the reference to appomtment in the PSA "was not Intended to encom- pass persons who served wIth the MInIstry under thIrd party contracts wIth out- SIde employment agencIes." Accordmgly, the grievor's service pursuant to the ar- rangement wIth the employment agency was not "servIce In the pubhc servIce" wlthm the meamng of artIcle 25 1(b) as It then was On the basIs of general labour relations or employment law tests used to determIne which of two entItIes IS a person's employer, the grIevor's claIm here IS certamly not as strong as Mr Konya's was. If the baSIS of thIS grievance had been framed as Mr Konya's was, as a matter of mterpretatIOn of the current provisIOn for determming semority, then It would suffer from the same flaw. the gnevor was not appoInted m the manner contemplated by the PSA and, there- fore, was not engaged m unclassIfied employment. Here, however, the umon concedes that the gnevor was not appoInted to the unclassIfied servIce and, accordmgly, was not actually an unclassIfied em- ployee wIthm the meamng of ArtIcle 18 1 durmg the penod m questIOn. The un- IOn does not argue that the words "unclassIfied employment" should be mter- preted as encompassmg the arrangement under whIch the gnevor worked m - 11 - , that period Rather, the union's argument here IS that that arrangement placed the Crown under an oblIgatIOn to appomt the grIevor to the unclassIfied servIce during that period, and that at this stage the appropriate remedy for ItS havmg not done so would be to adjust the grlevor's semorIty date to what It would have been If the grIevor had been employed m the unclassIfied servIce throughout the perIOd in question. Before addressmg that argument on the merits, I propose to comment on the mterplay between the way the dIspute has been framed and the Issues of tImelmess and laches The union argues that in the circumstances as they eXIsted between Octo- ber 1977 and June 14, 1987 the Crown had an oblIgatIOn to appomt the grIevor to the unclassIfied service Assummg for a moment that there was such a obhga- tIon to appoint, the faIlure to appomt could be described as a contmumg VIOlatIOn only wmle the CIrcumstances that gave rise to the obhgatIOn contmued, but not afterwards After June 14, 1987 there was only a past failure to abIde by the al leged obhgatIon. The fact that an appropriate remedy for the alleged VIolatIOn mIght have mcluded an adjustment of the grievor's contmuous servIce date does not transform the dIspute mto one about a contmumg mlsmterpretatIOn of the prOVIsions govermng the calculatIOn of semorIty Thus, any assessment of whether the grievance was filed wltmn the time lImIts prescribed m the applIca- ble collectIve agreement(s), or of whether the grievance should be dIsmIssed for laches, would have to be made on the basIs that the alleged employer mIsconduct complamed of took place more than 7 years prIOr to the filing of the grievance I do not need to determme whether thIS grievance should be dIsmIssed be- I cause of the grIevor's delay m fihng It, however I am satIsfied that the grievance falls on ItS merits Whatever might be saId about the SItuatIOn prior to 1982, I am not satis- fied that the grIevor was an employee of the Mmlstry m the usual labour rela- tions and employment law sense m the perIod between 1982 and hIS actual ap pomtment to the unclassIfied servIce m mId June 1987 HIS pay cheques came from the MTRCA, he contributed to the OMERS penSIOn plan to whIch other . 12 . MTRCA employees contributed, and hIS performance was appraIsed by MTRCA management. SIgmficantly, he recalls bemg told by the person he dealt wIth at the MmIstry that there were SIgnificant advantages to bemg an MTRCA em- ployee rather than a MmIstry employee, not the least of whIch was that he would not be laid off for 3 months out of every 12 (It IS noteworthy that under clause 25 1(b) at that time an unclassIfied employee appomted to the classIfied servIce could only get credIt back to his most recent layoff) The grievor apprecIated those advantages. It is not clear that he was of- fered a choice of working for the MmIstry or the MTRCA at that trme. If he had been offered that chOIce, however, It seems likely that he would have chosen to work for the MTRCA, gIven hIS preference for steady employment. It appears to me that the Ministry, the MTRCA and the gflevor all understood and mtended that the gflevor would be an MTRCA employee, at least In the perIOd from 1982 on. WhIle the MTRCA used MmIstry fundIng to pay the gflevor to do what he dId and the MInIstry clearly gave directIOn about the grIevor's work product In ac- cordance wIth Its contract WIth the MTRCA for the performance of such work, m all the circumstances those facts do not outweigh, or even weIgh strongly agaInst, the other IndiCia that the MTRCA was the employer Moreover, and in any event, I am not persuaded that the Crown would have had an obhgation to appoint the gflevor to the unclassIfied servIce even If the degree to whIch It funded hIS salary and directed his work had made hIm Its employee from the perspectIve of tests applied for other purposes In labour and employment law matters The umon's representatIve dId not Identify any provI SIOn of the collective agreement or of the PSA or of any other apphcable statute that supports the eXIstence of such an obligatIOn. In formulatIng theIr test for credIt for employment pflor to appoIntment to the classified servIce In the calculation of semoflty, the partIes chose to gIve credIt only for certain kmds of employment by the Crown. Even If the grIevor could be saId to have been m an employment relatIOnshIp WIth the Mmlstry in 13 - the period in questIOn, It was not the kmd of employment for whICh credIt IS gIven under what IS now ArtIcle 18 of the partIes' collectIve agreement. Accordmgly, thIS grIevance IS dIsmIssed Dated at Toronto thIS 27th day of June, 1997 ~tI