HomeMy WebLinkAbout2001-0433.Group Grievance Stephens et al.02-11-25 Decision
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Ontario
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GSB#0433/01
UNION#01B191
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano Pubhc ServIce Employees Umon
(Group Gnevance, Stephens et al )
Grievor
-and-
The Crown III RIght of Ontano
(Mimstry of Commumty and SocIal ServIces)
Employer
BEFORE Owen V Gray Vice-Chair
FOR THE UNION RIchrd Blair
Counsel
Ryder Wnght Blair and Doyle
FOR THE EMPLOYER F erIlla MUIJ I
Counsel
Management Board Secretanat
HEARING November 22,2002
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Decision
[1] Each of the gnevors has the same complamt. that her or hIS contmuous
serVIce date does not take mto account employment at the Southwest RegIOnal
Centre m the perIOd 1983 86 They say that for the first part of that penod the
MmIstry treated them as "self-employed" contractors For the latter part of the
perIOd they were paId by Chatham Kent FamIly ServIces from funds provIded by
the MmIstry At the end of the penod they were appomted to the unclassIfied
serVIce They allege that m legal substance they were m an employment
relatIOnshIp wIth the MmIstry throughout the penod, and should have receIved
credIt for It when they were later appomted to the classIfied serVIce
[2] The employer says that the gnevances are untimely, that the gnevors
were not m substance employees of the Crown durmg the perIOd m questIOn and
that, m any event, they would not have been entitled to credIt for that perIOd
even If they were m substance employees of the Crown. I was asked to address
the latter pomt as a prehmmary Issue
[3] Over the years, collective agreements between these parties have
provIded that m calculatmg the length of contmuous serVIce of someone
appomted to the classIfied serVIce, credIt wIll be gIven m certam cIrcumstances
for certam kmds of Crown employment pnor to the appomtment to the classIfied
serVIce Those collective agreements have not gIven and do not gIve credIt for
every conceIvable form of employment by the Crown, however Except when the
employer and umon have agreed otherwIse (and no such sIde agreement IS
apphcable here) the only kmd of Crown employment that may be credIted m thIS
way (dependmg on the cIrcumstances) IS employment m the "unclassIfied
servIce", or the "pubhc servIce" as the unclassIfied serVIce was described for thIS
purpose m collective agreements pnor to 1992
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[4] VIce ChaIr Robert's 1985 decIsIOn m Konya, 494/83 made It clear that a
Crown employee could only be regarded as employed m the "publIc servIce" If she
or he had been appomted to that serVIce m the manner contemplated by the
Public Service Act - that IS, the employee must have been appomted to that
serVIce under that act by the LIeutenant Governor m CouncIl, the CIVIl SerVIce
CommISSIOn or a mmIster The same IS true of employment m the "unclassIfied
"
serVIce
[5] In Hood, 113/95, the gnevor sought credIt for a perIOd durmg whIch he
had been employed by the MetropolItan Toronto and RegIOn ConservatIOn
Authonty m a program funded by the MmIstry of Natural Resources The umon
took the posItIOn there that, on the legal tests normally applIed to determme who
the employer IS, the gnevor was m substance employed by the MmIstry m that
penod. The umon recogmzed, however, that If that were true It would not be
enough. To be mcluded m the gnevor's perIOd of contmuous serVIce the perIOd of
employment m questIOn had to be employment m the unclassIfied serVIce The
gnevor had not been formally appomted to the unclassIfied serVIce for the perIOd
m questIOn. So the umon argued that because the gnevor was m substance an
employee of the MmIstry and was performmg the sort of work that would be
performed by employees m the classIfied or unclassIfied serVIce, he should have
been appomted to the unclassIfied serVIce for the penod m questIOn and should
therefore be treated for semonty purposes as though he had been so appomted
[6] Although I found m Hood that the perIOd of employment m questIOn was
not employment by the Crown on the usual tests, I also concluded that
Moreover and m any event I am not persuaded that the Crown would have
had an obhgatIOn to appomt the gnevor 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 apphed for other purposes m labour
and employment law matters The umon s representatIve (hd not IdentIfy any
provIsIOn of the collectIve agreement or of the PSA or of any other apphcable
statute that supports the eXIstence of such an obhgatIon.
[7] Umon counsel noted that Hood dealt wIth an allegatIOn that nommal
employment by a thIrd party was m substance employment by the MmIstry, but
4
not wIth a sItuatIOn hke thIS one m whIch nommal self-employment was alleged
to be m substance employment by the Mmlstry He acknowledged that he could
IdentIfy nothmg pertment m the dlstmctIOn. Nor can I The allegatIOn IS the
same that whatever the form of the arrangement, the gnevor was m substance
an employee of the Crown. The dIfficulty IS the same whether they were Crown
employees or not, the gnevors here were not appomtees to the unclassIfied
serVIce durmg the perIOd m questIOn.
[8] No doubt the gnevors feel that It IS unfmr that they could be engaged
between 1983 and 1986 to do the very work they dId thereafter as unclassIfied
employees wIth out gettmg credIt for that mltIal perIOd. In the hearmg, umon
counsel stated that the umon does too If there IS unfmrness, It IS m proVISIOns of
the collectIve agreements, whIch the Gnevance Settlement Board has no
JunsdlctIOn to change
[9] As I observed m Hood, m formulatmg theIr test for credIt for employment
pnor to appomtment to the classIfied serVIce m the calculatIOn of semonty, the
umon and the employer have agreed that employees wIll get credIt only for
certam kmds of employment by the Crown. Even If the gnevors here could be
saId to have been m an employment relatIOnshIp wIth the Crown m the perIOd m
questIOn, It was not the kmd of employment for whIch credIt was or IS to be gIven
under the partIes' collectIve agreements
[10] Accordmgly, thIS gnevance was dIsmIssed orally at hearmg
Dated at Toronto thIS 25th day of November, 2002
~V
VIce ChaIr