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Home My WebLink About2000-1119.Goh.00-11-20 Decision o NTARl 0 EMPLOYES DE LA CO['RONNE CROWN EMPLOYEES DE L "ONTARIO -- GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB #1119/00 OPSEU#00A500 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Goh) Gnevor - and - The Crown ill RIght of Ontano (Mimsm of CommunI~ and SocIal ServIces) Employer BEFORE Owen V (~ray V Ice ChaIr Decision [1] ThIR IR one of a number of gnevanceR about ContmuouR ServIce DateR wIth whIch the partIeR have agreed the Board can deal on the baRIR of wntten RubmIRRIOnR The unIOn R InItIal RubmIRRIOnR In thIR matter were aR followR The Umon does not chspute the facts surrounchng the gnevor's employment hIstory as demonstrated from the records supplIed by the employer The Issue In chspute IS whether or not the gnevor's serVIce workIng on the Best Ever Ontano Program constItuted employment wIth the MmIstry of Tounsm and RecreatIOn. and as such constItutes serVIce In the OntarIo PublIc ServIce The penod of employment was from April 01 1986 through to March '31 1989 The Best Ever Ontano Program was admmIstered on behalf of the MInIstry of Tounsm and RecreatIOn by the Ontano Sports AdnllmstratIOn Centre Incorporated. The gnevor's contract wIth the Centre provIdes that she reports chrectly to Mr George Fraser Games Consultant Games and TechnIcal SectIOn, Sports and FItness Branch, MImstry of Tounsm and RecreatIOn. Durmg thIS penod the grIevor was compensated at the OPS OAG 6 salary level and was authonsed to sIgn correspondence whIch contmned the nllmstry letterhead. DocumentatIOn supportIng the above IS available should the mInIstry chspute ItS accuracy The grIevor asserts that because the mInIstry funded and chrectly supervIsed the grIevor dunng thIS penod that her employment should be recognIsed as servIce wIthm the defimtIOn of ArtIcle 18 of the CollectIve Agreement. The Umon IS sympathetIc to her clmm that the provIsIOn-of T4's by an Intermechate the Ontano Sports Centre should not depnve her of the serVIce The Umon IS unable to chstIngmsh thIS case from the Board decIsIOn In Hood, GSB # 11'3/95 [2] When the gnevor waR appomted to the claRRIfied RerVIce on Apn1 1 1989 the relevant prOVIRIOnR of the collectIVe agreement (hd not (and prOVIRIOnR of RubRequent agreementR (hd not) allow for credIt for all employment by the Crown prIOr to appomtment to the claRRIfied RerVIce They only provIded for credIt for employment m the pubhc RerVIce The worc1R pubhc RervIce had the Rame meanmg aR m the Pubbc Sen'lce "4ct ("the PSA ) Ree Konva 494/83 (AuguRt 28 1985 RobertR) To have Rerved m the pubhc RerVIce wIthm the meanmg of ArtIcle 25 l(b) aR It then waR an employee had to have been appomted under the '3 PSA by the LIeutenant Governor m CouncIl. the CIVIl SerVIce CommlRRIOn or a mlnlRter ['3] The decIRIOn m Konva, supra waR deRcnbed m my later decIRIOn m Hood, 11 '3/95 In Konya, supra, the Issue was whether the gnevor could have credIt under the old language of artIcle 25 l(b) for a penod of tune durmg whIch he provIded electncal desIgn serVIces for the MInIstry pursuant to a contract between the MImstry and an employment agency that, In turn, contracted for the gnevor s serVIces through hIS personal corporatIOn. The employment agency billed the Mmstry for the hours worked by the gnevor and thereafter pmd the gnevor s corporatIOn for those hours In accordance wIth ItS arrangement WIth the gnevor \Vhen the gnevor was later appOInted to the classIfied servIce none of hIS dutIes changed. He remmned m the same office perfornllng the same electncal desIgn dutIes as he had when he was supplYIng hIS serVIces under the above-described contractual arrangement The Issue m Konya was framed as one of mterpretatIOn. whether the CIrcumstances that eXIsted pnor to the gnevor s appOIntment to the classIfied serVIce amounted to employment In the publIc serVIce wIthIn the meamng of artIcle 25 l(b) as It then reacl. On the ments the fuard noted that one could not be employed m the publIc serVIce wIthout bemg appomted to the publIc serVIce It found that the reference to appOIntment In the PSA was not Intended to encompass persons who served wIth the MImstry under thIrd party contracts wIth ou tSHle employment agencIes Accorchngly the gnevor s serVIce pursuant to the aTangement wIth the employment agency was not serVIce In the publIc serVIce wIthIn the meamng of artIcle 25 l(b) as It then was [4] AgamRt that background, It appeared that If there waR mdeed a dlRpute between the partleR about whether the gnevor waR employed m the publIc RerVlce prIOr to Apn1 1 1989 aR the umon R partlcu1arR RaId there waR, then It mURt have been eIther that the umon waR challengmg the concluRIOnR m Konva and Hood or that It waR aRRertmg aR a fact that thlR gnevor was appomted to the publIc RerVlce m the manner contemplated by the Publlc Sen'lce Act ("the PSA ) on or before Apn1 1 1986 The umon waR dIrected to mclIcate clearly whether or not It aRRerted that the gnevor waR appomted to the publIc RerVlce before Apn11 1989 m the manner contemplated by the PSA and whether It challenged the concluRIOnR m Konva and Hood that there can be no credIt for pre-appomtment employment unleRR It waR employment to whIch the employee waR appomted m the manner contemplated by the PSA The umon reRponded aR followR 4 To clanfy the posItIon of the Gnevor IS that the penod of employment from April 01 1986 through to March 31 1989 while Wlrkmg on The Best Ever OntarIo Program should be credIted towards her semonty m the OPS (as contemplated by the PSA pre-1989) All documentatIOn currently In my posseSSIOn has been provIded to you. As stated In our earlIer submISSIOn, the UnIOn IS unable to chstInguIsh thIS case from the Board's decIsIOn In Hood, 1131/95 and we are neIther challengtng the conclusIOns m that decIsIOn, or m Konya, 4941/83. The umon waR then dIrected to provIde copIeR of the Rtatutory prOVIRIOnR on whIch It relIed III <<mnectIOn wIth ItR claIm that the PSA contemplated the creclItmg of the perIOd of employment m queRtIOn towardR the gnevor R Remonty m the OPS and an explanatIOn of how It RaId thoRe prOVIRIOnR bear on the IRRueR m thIR matter The umon reRponded aR followR In an attempt to further clanfy the Umon's submIssIOns 1. The gnevor does not have any documents In her posseSSIOn, supportIng her appomtment to the publIc serVIce on April 01 1986 m the manner contemplated by the Fllbllc SeTl'ICe Act 2. The gnevor has no memory of beIng formally appomted to the publIc serVIce on April 01 1986 3. On April 01 1989 the gnevor does recall havmg to sIgn a number of formal documents appOIntIng her to the publIc serVIce The Fllbllc ServIce Act R.S 0 1990 c P47 S 8 provIded much greater clanty In how an employee was formally appOInted to the publIc serVIce ThIS mcluded the now very clear language m s 8 and 8 1 (1) (2) (4) (9) and (10) that was not present m R.S 0 1980 s 8. I have mcluded the R.S 0 1980 c. 418 S (8) and (10) pages on thIS subject. Clearly pre 1990 language was less clear and cogent It remalns the Umon's posItIon that thIS case IS InchstIngmshable from Hood, 113/95, and the Umon IS not chsDutm!! the conclusIOns reachffl by that Board. [5] Although mVIted to do RO the Umon haR offered no explanatIOn of ItR aRRertIOn that the PSA contemplated the creclItmg of the gnevor R employment wIth The BeRt Ever OntarIO Program toward her Remonty m the OPS Nothmg m the PSA extractR that accompamed the umon R 1aRt RubmIRRIOn RupportR that aRRertIOn. The umon doeR not affirmatIVely allege that the gnevor waR appomted to the publIc RervIce pnor to Apn1 1 1989 It doeR not challenge the Board R preVIOUR finchngR that the collectIVe agreement chd not and doeR not provIde for credIt for penodR of employment that were not the reRult of appomtment to the 5 publIc RerVIce In Rhort, the umon offerR no tenable baRIR for ItR challenge to the employer R calculatIOn of the gnevor R ContmuoUR ServIce Date [6] AccorclIng1y thIR gnevance IR dIRmIRRed. Dated at Toronto thIR 20th day of November 2000 Owen V Gray VIce-ChaIr