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HomeMy WebLinkAbout1996-1067GAGNON97_06_02 /' 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 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1067/96 OPSEU # 960815 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gagnon) Grievor - and - the Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE R.J Roberts Vice-Chair FOR THE M McFadden GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE A. Gulbinski EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING May 27, 1997 - /" / 1 INTERIM AWARD I. Introduction. At the outset of the hearmg m this matter, counsel for the employer, Ms. GulbmskI, made a prelImmary objectIOn to JunsdIctIOn. It was submItted that the gnevance was marbItrable because It was filed by a member of the unclassIfied servIce and it complamed of the non- renewal of her contract. Smce there was no right to renew such a contract m statute or the collectIve agreement, Ms. GulbmskI argued, there was no breach of statute or agreement to constItute the necessary jUnSdIctIOnal basIs for the gnevance Counsel for the unIOn, Mr McFadden, argued m hIS broadest submIssIOn that m the most recent junsprudence dealmg wIth gnevances of members of the unclassIfied serVIce, the Board asserted JunsdIctIOn to reVIew "bad faIth" non-renewals of the contracts of members of the unclassIfied serVIce In decIdmg not to renew the gnevor's contract, he argued, the employer exercIsed ItS management nghts m bad faith, and thIS consItuted the essential JunsdIctIOnal "hook" for the gnevance I have deCIded to take JunsdlctlOn of the ments of thIS gnevance but not because I am persuaded that claims of "bad faith" non-renewals of the contracts of members of the unclassIfied . ~ 2 serVIce are revIewable upon theIr ments. In the present case, Mr McFadden alleged that management was m bad faith when It delayed unttlIt was too late for the grievor to Improve, notIce that the number of tImes she declmed available work had become a matter of senous concern. The Gnevance Settlement Board certamly has JunsdictIOn to entertam the ments of a claim of bad faith exerCIse of management rights WhIle I doubt that establIshmg thIS claim would, as a general rule, entItle the gnevor to an order dIrectmg the renewal of her contract, thIS IS an Issue gomg to remedy It does not have to be decIded now The prelImmary ObjectIOn to JurisdIctIOn IS dIsmIssed. II. General Background To expedIte the hearmg of the prelImmary ObjectIOn, the partIes agreed to submIt some documents and recIte some factual allegatIOns upon WhICh I could base my decisIOn. It was understood that these factual allegatIOns were not to be taken as proven for purposes of a heanng, If any, upon the ments, Accordmg to these factual allegatIons, the gnevor had been an unclassIfied correctIOnal Officer for a number of years Her first contracts were to serve as a CorrectIOnal Officer at Camp Duffenn, near Toronto Then, m 1995, the gnevor moved to the CecIl Facer Youth Centre (CFYC), near Sudbury ThIS move was 111stIgated by the gnevor She haIled from the Sudbury area and wIshed to be near her parents to comfort them m the mIdst of a famIly tragedy - /~ 3 The gnevor successfully completed her first contract at CFYC and was renewed. Her second contract commenced on January 1, 1996 and was set to expIre on June 30, 1996 On Apnl 26, 1996, the gnevor was gIVen a performance appraisal by her Umt Manager, J Natale, for the penod November 30, 1995 to June 1, 1996 The appraisal was posItIve m the categones of Job knowledge, skIlls, qualIty of work, output and effort; and, attItude. The appraIsal was negatIve in Just one category relIabIlIty It noted that two tImes m January, seven tImes m February; and, 13 tImes m Apnl, the gnevor had not been aVailable for shifts. On two of these occasions, the gnevor mIssed prevIOusly-scheduled ShIftS. The appraIsal stated that the gnevor had to demonstrate an immediate Improvement m avaIlabIhty In her wrItten comments upon the appraisal, the gnevor agreed that her aVailabIlIty was a problem and undertook to correct It. FIVe days later, on May l, 1996, the gnevor was notIfied by letter from Mr Natale that her contract would not be renewed when It expIred on June 30 The letter saId, m pertment part: It IS our expectatIon that you report for duty for the ShIft you have been scheduled and have agreed to It IS a reqUirement of employment that you be reasonably aVailable for work and notIfy the ShIft SupervIsor at least one (1) hour pnor to the begmnmg of a ShIft If you are unable to report for that ShIft, In the months of February and Apnl1996, you were unavaIlable for work on twenty-three occaSIOns and faIled to notIfy the ShIft SuperVIsor on two (2) occaSIOns that you would not be reportmg for duty Due to the fact that staffing levels have to be mamtamed and you have been unavailable for work on numerous occaSIOns, we have no alternatIve but to mform you that your contract WIll not be renewed on June 30 1996 - ~ 4 The gnevor was notIfied that because of her poor record of avaIlabIlIty m February and Apnl, 1996, her contract would not be renewed. III. The Issues Mr McFadden submItted that Mr Natale's actlOn m notIfymg the gnevor that her contract would not be renewed for unavaIlabIhty Just five days after the performance appraisal constItuted a bad faith exerCIse of management nghts over whIch the Board possessed JurisdIctlOn. He noted that in five days, the gnevor would not have had any chance to show the Improvement m aVaIlabIhty that Mr Natale saId she had to demonstrate. Havmg exercIsed hIS management nght to gUIde the workforce by counsellmg the gnevor to Improve her avaIlabIhty, Mr McFadden submItted, Mr Natale had a good-faIth duty to gIve her a chance to do so When he faIled to gIve her thIS chance by essentIally sending her a notIce of termmatIOn five days later he breached thIS duty In Mr McFadden S submIssIOn, thIS generally consItuted a bad-faith non-renewal of the gnevor's contract -- a broad Issue over WhIch the Board also had JunsdIctIOn, In support of thIS submIsslOn, he referred to Re Merson and Ministry of Correctional Services (1996), G S.B Nos, 299/93,1162/93 (Gray), Re Auger-Beaulieu and Ministry of the Attorney General (1993) G S B No 469/92 (Fmley), and, Re Fox and Ministry of Correctional Services (1992) G S B No 739/91 (DIssanayake) -- --- -' 5 On the other hand, Ms. GulbmskI submItted that the Board had no JunsdIchon to reVIew a management declSlon not to renew a contract m the unclassIfied servIce, bad faith or otherwIse She pomted out that an employee m the unclassIfied serVIce dId not have any statutory or collective agreement nght to be renewed. Unless such a right was claimed to have been breached, Ms. GulbmskI argued, the Board dId not have any JurIsdIctIOn to reVIew the employer's deCISIons. She cIted m support of this submIssIOn Re Ghiandoni and Ministry of the Solicitor General & Correctional Services (1996), G S,B Nos, 518/94,519/94 (Mikus), Re Hannant- Steffler and Ministry of Correctional Services (1996), G S.B No 1597/93 (Barrett), and, Re Milks and Ministry of the Attorney General (1993), G S.B No 1000/92 (Low) IV Consideration of the Issues There seems to be little doubt that the Gnevance Settlement Board has generally adopted the VIew that It "has no JunsdlCtIOn to reVIew the CIrcumstances under WhICh 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" Re Milks, supra, at 4-5 When, however, the umon claims that a decIsIon not to renew was part-and-parcel of a bad faith abndgement of a collectIve agreement nght possessed by a member of the unclassIfied serVIce whIle employed, the Board, of course, wIll take JunsdIctIOn, Re Ghiandoni, supra, at 14- 15, & Re Hannant-Stejjler supra, at 5 I agree wIth counsel for the umon, Mr McFadden, that - /' 6 on thIS latter basIs, I have JunsdIctIOn of the ments of thIS case because the claim IS that the decIsIon not to renew was part-and-parcel of a bad-faIth exerCIse of management nghts whIle the gnevor was employed. Mr McFadden, however, went on to submIt that the authontIes he relIed upon had taken the JunsdIctlon of the Board one step further to the pomt of revIewmg all claIms of bad faIth non-renewal of fixed term contracts. They do not appear to do so In Re Merson, supra, the umon claimed that a decIsIOn not to renew was part-and-parcel of discnmmatIOn agamst the gnevor for engagmg m umon actIvIty while employed. ThIS dIscnmmatIOn was found to be m breach of then ArtIcle A of the collectIve agreement. Id., at 9-13 In thIS sense, Re Merson alIgns perfectly wIth Re Ghiandoni and Re Hannant-StejJler, supra. In Re Auger-Beaulieu, supra, the employer was found to have breached the collectIve agreement by termmatmg the gnevor wIthout Just cause part-way through her fixed term contract. The Board concluded that m the special CIrcumstances of the case, It would rem state the gnevor for the balance of her contract and order compensatIOn for mIssed opportumtIes to work. Id., at 46-7 ThIS wasn't a case oftakmgJurIsdIctIOn to reVIew a declSlon not to renew a fixed term contract after Its expIratIOn. Mr McFadden submItted m the alternatIve that a decIsIOn not to renew a fixed term contract should be treated m the same way as a deCISIOn to release a probatIOner Referrmg to Re Fox, supra m WhICh the release of a probatIOner was upheld, he suggested that as m the case of a - ?' -- 7 probatlOner, there was an expectatIOn that If employees on fixed term contracts met the reqUIrements of theIr posItIons, they would be retained by way of reappomtment. It followed that they had to be gIven a good-faIth opportumty to meet these requirements, See id. at 9-12 ThIs tIed mto the gnevor's case, Mr McFadden said, because the gnevor -- Just lIke a probatIOner-- had to be gIven an adequate opportunity to meet the reqUIrements of her pOSItIon, and she was demed that opportumty In my VIew, It would take far stronger authonty than Re Fox to convmce me to adopt a general proposItIon that unclassIfied employees on fixed term contracts should be regarded m the same way as probatIOners m the classIfied service So long as probatIOners meet the reqUIrements of theIr posItIons they are expected to contmue on as semonty employees The same sImply cannot be Said of unclassIfied employees on fixed term contracts. ThIS IS not to say that I reject the notlOn that a bad faIth exerCIse of management rIghts mIght be establIshed by a showing that the employer herem counselled the gnevor to Improve her aVailabIlIty and then dId not gIve her any chance to demonstrate an Improvement. I sImply observe that relymg upon thIS ground does not reqUIre an analogy to be drawn between the gnevor and a probatlOner, and upon the authorIties before me I declme to draw one One more Issue needs to be addressed the aVailabIlIty of a remedial order dIrectmg the employer to renew the gnevor's contract. In Merson, after the Board concluded that the failure ti) renew was part-and-parcel of dIscnmmatlOn m breach of then artIcle A of the collective /' I ....- 8 agreement, It essentIally dIrected the employer to reappomt the gnevor to a current contract and compensate hIm for any loss of earnmgs between September, 1990 and the date of hIS reappomtment. Id, at 17 For the moment, I do not embrace Merson as expressmg the remedy generally to be applIed m cases of thIS type At first blush, It seems that the Merson remedy might have been m the nature of extraordmary relIef fashioned by the Board to meet the special CIrcumstances of that case. ThIS questIon need not be decided, however, at thIS stage of the proceedmg. It may be deferred until the remedy phase of the hearing, If any, upon the ments of thIS case. IV Conclusion. The obJectIOn to JunsdIctIOn IS dIsmIssed. The Board has JurIsdIctIOn to reVIew the ments of the questIOn whether the employer exercIsed Its management nghts m bad faith when Mr Natale counselled the gnevor that she needed to demonstrate Improvement m her aVailabIlIty and then five days later, gave her notIce of non-renewal of her contract. Dated at Toronto, Ontano thIS 2nd day of June, 1997 ) "--