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HomeMy WebLinkAboutP-2006-2963.Sisulak.09-4-30 Public Service Commission des Grievance Board griefs de la fonction publique Bureau 600 Suite 600 180, rue Dundas Ouest 180 Dundas St. West Toronto (Ontario) M5G 1Z8 Toronto, Ontario M5G 1Z8 Tél. : (416) 326-1388 Tel. (416) 326-1388 Téléc. : (416) 326-1396 Fax (416) 326-1396 P-2006-2963 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Grievor Sisulak - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREDeborah J.D. Leighton Vice-Chair FOR THE GRIEVORJohn F.L. Rose Barrister, Solicitor and Mediator FOR THE EMPLOYER Len Hatzis Counsel Ministry of Government Services HEARING November 8, 2007, December 5, 2007. Decision [1]On January 22, 2007, Fred Sisulak grieved that the Ministry, contrary to the Public Service Act, R.S.O. 1990, c.P.47, (Repealed August 20, 2007) had wrongly dismissed him. This decision addresses the motion by the employer that the board has no jurisdiction to hear Mr. Sisulak?s grievance. The parties agreed to the following statement of facts for the purposes of this motion. Agreed Statement of Facts 1. Fred Sisulak ("Fred") resides in Midland, Ontario with his wife Fern and two children. 2. Fred is a Registered Nurse with 26 years experience. He has a postgraduate psychiatric registered nursing diploma from Durham College, which was sponsored by the Ministry of Health. 3. From 1981 until December 2000 he was employed in the Ontario Public Service at the Penetanguishene Mental health Centre. His position at the time he left was as Nursing Manager (Shift). The Ministry of Health dismissed Fred and pursuant to a subsequent Memorandum of Settlement, Fred exited the OPS. 4. In early 2000, MCSCS constructed identical institutions, one in Lindsay (CECC) and one in Penetanguishene (CNCC). After a competitive process, the MCSCS awarded a contract to MTC to operate CNCC in or around June 2001. Pursuant to the contract, MTC operated the CNCC facility beginning in June 2001. MTC contracted with First Correctional Medical ("FCM") to supply health care services and professionals at the CNCC. FCM supplied Fred as an employee to work at CNCC. 5. Initially, during the first year or so, the Health Care operating procedures at CNCC were not the same as all other correctional facilities operated by MCSCS. Subsequently, the MCSCS required the CNCC to equate its health care standards with Ministry standards, however this should not be taken to mean that they in fact did so. 6. Fred started as a Nurse and was eventually promoted to Manager of Health Services, a senior position with a salary of $ 80,000. 7. During his employment with CNCC, the day-to-day operation was run by MTC. MCSCS did not provide Fred's paycheques and Fred was not enrolled in the OPS pension plan. At times, nursing issues were overseen by the MCSCS. Specifically: a. The Ministry has a Contract Compliance Unit who attempted to ensure that - 3 - the MTC followed relevant Ministry Guidelines and policies. The Contract Compliance Monitor from the Ministry was Robyn Kasha who would liaise with Fred. b. Fred attended an annual orientation session with MCSCS Health Care Managers regarding Human Resources issues, inquests, and work place Safety. He was also one of the members of the Northern Health Care Correctional Facilities Managers group at monthly teleconferences and attended annual conferences. When he attended these group meetings, he was the only employee not employed by the Ontario Public Service. c. Direction was given to Fred from time to time from Senior Ministry Nurses on how nursing operations were to be conducted". Numerous health care audits (15) were conducted with respect to the operation of the CNCC in attempts to ensure its standards were brought into compliance with MCSCS standards. He attended Professional Nurses Advisory Committee (PNAC) meetings regarding Ministry Policy for Corrections and took active part. Some of his concepts and concepts jointly created by him and others were adopted by the Ministry regarding, inmate KOP (medication kept on person) programming, physician order forms and several other key areas. d. The Ministry Senior Nurse and Health Care Manager, Joanne Shaw conducted regular audits of health care at the facility and Fred was responsible for developing answers to her regarding what action plans should be used to meet the recommendations. e. Occasionally Fred had substantive dealings with First Correctional Medical. In this regard, Bill Merrick, a FCM security employee reported to Fred and was on site at CNCC and housed in the next office to Fred; Mike Johnston a FCM employee would regularly attend the CNCC; and Dr. Desai, for a period of six months, a FCM doctor would be on-call available to Fred on evenings, if needed. Because of the regulated nature of corrections and the Personal Health Information Protection Act, Fred could not disclose most issues regarding inmates to non-Health Care professionals of First Correctional Medical nor any Ministry non-Health Care professionals. Some of his dealings regarding Policy and Operational procedures were with the Ministry Senior Nursing Managers Joanne Shaw and Nancy Ogden, and the other Health Care Managers at the various jails in Ontario. f. Fred attended the annual Association of Physicians in Corrections Ontario (APCO) meetings and was a regular participant in discussions regarding Clinical Presentations and MCSCS health care policies. g. Investigations Fred conducted at CNCC, regarding staff discipline and potential Nurse Terminations were monitored by Senior Ministry Nursing staff. 8. On occasion, Fred attended a training session and developmental courses alongside individuals employed in the Ontario Public Service. - 4 - 9. In the spring 2006 it was announced that in November 2006, the Ministry of Community Safety and Correctional Services would be assuming operation of CNCC. See attached press release. 10. In September 2006, Ministry personnel started a review of staff files, references and conducted formal interviews. A waiver was required to be signed by Mr. Sisulak which allowed access to his personnel file at MTCC/ CNCC. 11. Fred, and other staff, were advised that upon hire: a. hours of work would not significantly change; b. service with CNCC would be recognized for the purposes of calculating severance pay under Employment Standards Act, Section 64; c. there would be no probationary period; d. there would be no waiting period for short term sick leave; e. there would be no waiting period for benefit plan coverage; f. there would be no waiting period to join the pension plan; 12. Fred completed the Expression of Interest Forms with the Ministry and based on his "employment record, written assignment and qualifications and interview" on October 4, 2006 he was given a conditional offer of employment with the Ministry of Community Safety and Correctional Services, Central North Correctional as Manager of Health Services. His rate of pay was to be at the top of his level - $88,109.00.The very next day he accepted that offer. Attached is a copy of the offer. Fred did not have a criminal record and his attendance was satisfactory. 13. On October 5, 2006 he also signed the Employee Acknowledgement and Declaration Form in which outlined the standards for employment conduct and behaviour. That form was also signed by Linda Elliott, the MCSCS representative. He received the Ministry Policy Binder, was fingerprinted and swore his oath of allegiance. He provided his proof of citizenship, marriage certificate and family birth certificates as required. 14. At the same time, First Correctional Medical also offered him a job in Tennessee at a salary of $82,684. He declined that job because he had been hired by the Ministry. 15. From October 5, 2006 until November 7, 2006 Fred was involved in the implementation of the transition, including: a.answering enquiries regarding and from existing nursing staff being considered for employment; b.Assisting in the continuation of services with vendors such as medication and medical supplies; c.Ensuring the continuation of services such as medical supplies and - 5 - medications, along with nursing and dental services. 16. Fred received notice from Midge Ravensdale, on November 7, 2006, that the offer of employment was being rescinded. She gave the reason as the Ministry had received information he had previously been employed by the province and that he had been terminated. (References to attachments have been omitted.) EMPLOYER?S SUBMISSION [2]Counsel for the employer argued that the board has no jurisdiction to hear Mr. Sisulak?s grievance because it is not a dismissal under the Public Service Act, nor does it fall under the working conditions and terms of employment provision of the regulation. In support of this submission, counsel focussed on the facts. The Ministry offered employment at CNCC to Mr Sisulak on October 4, 2006. On October 5, 2006, Mr. Sisulak accepted that offer, which was conditional only on a criminal records check. The Ministry was assuming operation of CNCC in November of 2006. On November 7, 2006, Mr. Sisulak was advised that the offer of employment was rescinded. The contract with the previous operator of the facility ended on November 10, 2006. Counsel for the employer submitted that the reason for the Ministry rescinding the offer of employment was that the grievor had previously been terminated from his employment with the Crown, when he was an employee of the Ministry of Health and Long Term Care. Since the Ministry of Community, Safety and Correctional Services was not hiring anyone who had been previously terminated from employment with the OPS, when the Ministry recognized the termination, it rescinded the employment offer to Mr. Sisulak. Thus, in counsel?s submission, there was no dismissal and, therefore, the grievor cannot rely upon section 22 of the Public Service Act to grieve before this board.In counsel?s submission, there was no employment contract, nor was there a release from employment. Counsel argued that the grievor cannot point to a provision withinRegulation977 (Regulation spent August 20, 2007) that provides jurisdiction for this board, and the board cannot create jurisdiction where it does not have it. - 6 - [3]Alternately, counsel argued that at its best the facts could be characterized as a wrongful dismissal. However, section 33(2) of Regulation 977 still prohibited the board from hearing the grievance. Section 33(2) provides that a person grieving a wrongful termination to the board must have been employed in the public service under the jurisdiction of a deputy minister for at least twelve months prior to being dismissed. So even if Mr. Sisulak?s employment is characterized as being terminated on November 7, 2006, he was only employed with the Ministry for approximately one month. Therefore, it is clear that the board has no jurisdiction to hear this grievance. [4]Counsel also argued that the Public Service Act and Regulation 977 continue to apply to this proceeding. The Public Service Act was revoked in August of 2007, well after the date of the grievance and referral to the board. Therefore, in counsel?s submission the Public Service Act still applies to this case. Counsel also noted that the Interpretation Act, R.S.O. 1990 c.I. 11 was repealed on July 20, 2007, and replaced by the Legislation Act, S.O. 2006, c. 21, Sch.F. He argued that it is well-established law that substantive rights survive the revocation of an act or regulations, while procedural changes take effect immediately. He argued that in this case, the rights were substantive: jurisdiction is always substantive. He noted further that there is nothing in the new act, the Public Service Act of Ontario, S.O. 2006, c. 35, (PSOA) to rebut the presumption as noted in the leading text on statutory interpretation, Sullivan and Driedger on the Construction of Statutes(Fourth Edition) Butterworths,that a substantive right survives a change in legislation. Very clear language would have had to be included in the statute to remove substantive rights, and it was not, in counsel?s submission. Thus in summary, counsel argued that the Public Service Act and Regulation 977 apply to this case. Referral is the date that crystallizes the rights of the parties. Therefore, the new act and regulations do not apply here. [5]Counsel for the employer relied on the following cases in support of his submission: Garcia and the Crown in Right of Ontario (Premier?s Council on Economic Renewal), PSGB #P/0012/93, P/0029/93; Robert Joseph Cartwright and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services, PSGB #P/2003/1986; Ontario Public Service Employees Union (Hood) and the Crown in Right of Ontario - 7 - (Ministry of Natural Resources), GSB #113/95;Ontario Public Service Employees Union (Group Grievance, Stephens et al) and the Crown in Right of Ontario (Ministry of Community and Social Services), GSB #0433/01, Rampersaud and the Crown in Right of Ontario (Workers Compensation Board), PSGB #P/0037/92; Picard v. Canada (Public Service Staff Relations Board) (1977) F.C.J. No. 246; Canada (Treasury Board) and Picard (1977) C.P.S.S.R.B. No. 17; Angus v. Sun Alliance Insurance Co. (1988) 2 S.C.R. 256;R v. Howard Smith Paper Mills Ltd. (1957) S.C.R. 403; Rhys-Jones v. Rhys-Jones (2000) O.J. No. 1339; Royal Bank of Canada v. Concrete Column Clamps (1961) Ltd. (1971) S.C.R. 1038. GRIEVOR?S SUBMISSION [6]Counsel for the grievor stated that the issue before me is whether I can hear the case on the merits. He submitted that I have the jurisdiction to hear the case. Counsel went on to review the facts as agreed to by the parties. He noted that CNCC was part of a five-year project, an experiment by the government to compare a privately owned prison to a publicly run prison. The experiment ended in November of 2006 when the Crown resumed operation of CNCC. Counsel for the grievor noted that the grievor had been doing the same job as other health service managers in compliance units across the Ministry. [7]Counsel noted that when the grievor was hired, the Ministry waived the probation period. The offer of employment was conditional only on a criminal records check. Thus, there was a completely binding employment contract between the Crown and the grievor, in counsel?s submission. The employer?s attempt to rescind the contract on November 7 therefore was not valid. Thus, it was a wrongful termination and the board has jurisdiction to hear the case, since the new regulation allows a grievance for wrongful dismissal after the probation period is finished or if the employer waives probation as it did for the grievor. - 8 - [8]Counsel for the grievor argued that Regulation 378/07, passed pursuant to the PSOA, applies to the case before me. PSOA came into effect in August 20, 2007, replacing the Public Service Act. The Public Service Act was repealed on August 20, 2007. Regulation 977 was spent on August 20, 2007. The Legislation Act replaced the Interpretation Act on July 25, 2007. Counsel for the grievor argued that this Act provides the authority that the new PSOA applies to the grievor?s case. He cited section 46 of the Legislation Act, which states that every provision of part six applies to every act and regulation of the province unless, as noted in section 47, a contrary indication appears in the act. Counsel also cited section 51, which he argued only applies to the revocation or repeal of a piece of legislation, and not to legislation that is replaced. Thus, he argued section 52 applied to the case before me. Section 52 specifically addresses the situation where an act is repealed and replaced with another. He noted that section 52(3) provides that ?Proceedings commenced under the former act or regulation shall be continued under the new or amended one, in conformity with the new or amended one as much as possible.? [9]Therefore, in counsel?s submission the new procedures of the regulation under PSOA must apply. He argued further that the grievor should be able to benefit from the new regulation given the time it takes to get a hearing before the board. He also argued that section 52(5) of the Act provides that the grievor should get the benefit of the change of the regulation. [10]Arguing against the employer?s position that PSOAand Regulation 378 apply only to procedural matters and not substantive rights, counsel submitted that the new Act has not - 9 - changed substantive rights. The employer has a right is to dismiss for a just cause. The employee?s right is to grieve that dismissal to the board. In counsel?s submission, the old regulation prescribed the procedure for grieving at the board. Moreover, the new regulation likewise provides the procedure for the handling of grievances. Under the old grievance procedure, Regulation 977, in order to grieve a wrongful termination a grievor had to have been in the public service for twelve months. By contrast, the new regulation provides that a person must be in the public service for twelve months, or have probationary period of twelve months waived. In the grievor?s case, when the Ministry offered him employment, they waived the probationary period. Therefore, the new regulation should apply to him and he should have the right to have his grievance heard on the merits. [11]Counsel for the grievor argued that should I decide that I am bound to apply Regulation 977 in this case, the purpose of the twelve continuous months of employment in the old regulation was to allow for a probationary period. Since the Ministry waived the grievor?s probation in this case, the board should permit the grievance to proceed on the merits. In addition, counsel for the grievor argued that the Employment Standards Act, 2000, S.O. 2000, c.41, provisions on transfer or sale of a business are applicable here. For the purposes of this act, the new employer recognizes the prior service of employees for termination and severance. Thus, the five years of service with the previous employer should be recognized. The Employment Standards Act provisions on successor employers require that the years of service with the CNCC be deemed service for the purposes of the twelve months required under Regulation 977. - 10 - [12]In the alternative, counsel for the grievor argued that the character of the employment should lead me to conclude that the grievor was in fact still an employee of the Crown when he worked for CNCC. CNCC was regulated and monitored by the government, and it is possible for an employee to be an employee of two employers. In this case, the province was experimenting with the private versus public model of providing prison facilities, and after the five years of the experiment were finished, the private facility was transferred back to the public service. [13]In summary, counsel for the grievor argued that the new act and regulations should apply to the grievor?s case, and he should be allowed to proceed on the merits before the board. The offer of employment and the acceptance of the job created a binding employment contract, and gave the grievor the benefits of a public servant. The Ministry?s purported revocation has no legal effect. In the alternative, if Regulation 977 applies, the grievor is still a public servant at the date of the revocation of his employment because he has served twelve months under the successor employer or because of the character of his service in his employment for five years at CNCC. [14]Counsel for the grievor relied on the following cases in support of his submission: Rivers v. Gulf Canada Ltd. (1986) 36 A.C.W.S.J. (2d) 246, Ontario High Court of Justice (Galligan);Kent v. Stop N? Cash 1000 Inc. (2006) O.J. No. 2699, Ontario Superior Court of Justice (Turnbull); Pitre v. Gordie?s Auto Sales Ltd. and Babin (1976) N.B.J. No. 262, New Brunswick Supreme Court Appeal Division (Hughes, Bugold, Ryan); Horvath v. Joytec Ltd. (1989) Q.B. No. 4844 of 1987 J.C.S., 77 Sask. R. 272, Saskatchewan Court of Queen?s Bench Judicial Centre of Saskatoon (Hrabinsky). - 11 - EMPLOYER?S SUBMISSION IN REPLY [15]Counsel for the employer argued that whether the board has jurisdiction to hear a matter is not a procedural provision. Under Regulation 977,an individual had to have served in the public service for twelve months before he or she was permitted to grieve a termination of employment. That provision vested a right in the employer, and that cannot be removed by the revocation and replacement of a new act and regulations, which change those rights. Counsel argued that the grievor?s position ignores the procedural substantive rights distinction. He further argued that labels are not what matter in this case, as Driedger points out in his text. Context must determine whether a provision is substantive or procedural. He submitted that the right to bring an action is substantive, and if the law changed after the action had been started, the right would survive unless there was specific language that removed that right. [16]Counsel argued that with regard to the Employment Standards Act and character of employment submissions made by the grievor?s counsel that I should not be persuaded by this argument. He submitted that it is clear, as seen in the Stephens et al. case, that a person must have been appointed to the public service to be considered a public servant, and this is not the case with the grievor. Further, the Employment Standards Act cannot override the Public Service Act. The Employment Standards Act is not about giving a person deemed service for the purposes of the Public Service Act; it is about preserving entitlements under the Employment Standards Act, so it does not apply universally to - 12 - defeat the Public Service Act. Moreover, counsel contended it could not be used to deem a person an employee of the public service. DECISION [17]Having carefully considered the motion to dismiss this grievance as unarbitrable, I decided that I must grant the motion and dismiss the grievance. These are the reasons for the decision released earlier. [18]The first issue is whether Mr. Sisulak was employed by the Ministry and terminated from that employment. In the process of the government taking over the operation of CNCC, it made job offers to employees of CNCC and a third party provider, First Correctional Medical (FCM). Mr. Sisulak was an employee of FCM when he received a job offer from the government on October 4, 2006. The offer itself notes that it is based on his ?employment record, qualifications and the interview process ?? The offer was contingent upon the grievor providing proof that he had no criminal record. The only other condition was that his attendance remain regular and in good standing to the date of the official transfer of the Detention Centre to the Ministry on November 9, 2006. [19]Mr. Sisulak accepted the offer on October 5, 2006. He had no criminal record and his attendance was good. On October 5 he also swore an oath of allegiance, was finger printed and received the Ministry?s policies. Until November 7, 2006, he worked on the implementation of the transition plan. On these facts, it is clear that the grievor had an employment contract with the Crown. The Ministry offered the grievor a contract, on - 13 - conditions, which he met, and Mr. Sisulak accepted that offer. On November 7, 2006 the Ministry sent Mr. Sisulak a letter purporting to rescind the contract but, not for the reasons for which the offer was contingent. The only right to rescind the contract, reserved when the offer was made, was if the grievor had a criminal record or his attendance was not in good standing. Given the evidence I am satisfied that the grievor had a contract for employment and the letter purporting to rescind the offer is a repudiation of the contract.In other words, there was no valid reason to rescind the contract so the letter must be recognized in law to be a termination of that contract. See Horvath and Joytec, supra, for a similar finding that the plaintiff in that case was wrongfully dismissed, when after an employment contract was offered and accepted, the defendant refused to allow the plaintiff to start work. The court found that the plaintiff was entitled to compensation in lieu of notice. [20]The next issue to be addressed is whether this board has jurisdiction to hear Mr. Sisulak?s grievance claiming wrongful dismissal. The case is complicated by a change in the governing legislation in August 2007. The grievance was filed in January 2007 and came forward for hearing in the fall of 2007 after the Public Service Act was repealed and Regulation 977 became spent on August 20, 2007. In its place, the Public Service of Ontario Act was enacted and Regulation 378 promulgated. The significant change for the issue before me is that under the old legislation and Regulation 977 a person grieving a wrongful dismissal to the board had to be employed for at least 12 months under the jurisdiction of a deputy minister: 33. (1) A person described in subsection (2) who is aggrieved by his or her dismissal from employment under subsection 22(3) of the Act may file a grievance with his or her deputy minister within 14 days after receiving notice of the dismissal. - 14 - O.Reg. 168/96, s.6(1). (2) Subsection (1) applies to a person who has been employed in the public service under the jurisdiction of a deputy minister continuously for at least the 12 months prior to being dismissed. O.Reg. 168/96, s.6(1). [21]Under the new Regulation 378, if probation has been waived, twelve months of continuous service is not a requirement to access the grievance procedure. Thus, counsel for the employer argued that old legislation and Regulation 977 govern in this case. In contrast, counsel for the grievor argued that the new legislation and Regulation 378 apply. [22]Having carefully considered the submissions on this point, summarized above, I shall not repeat them here. I am persuaded that the Public Service Act and Regulation 977 apply to the grievor?s complaint. The grievor filed his complaint under this legislation and his rights and the employer?s rights vested at that point. It is well-established law that when legislation and regulations are repealed, vested substantive rights survive, but new procedural changes take effect immediately. Under the Interpretation Acts of all Canadian jurisdictions, provision is made for the continued application of repealed legislation to facts occurring prior to repeal. ?the repeal of an enactment does not destroy any right, privilege, obligation, or liability arising under the repealed enactment, nor does it forgive any contravention of the repealed law. Investigations and proceedings relating to pre-repeal events may be begun and continued under the old enactment despite its repeal. And the remedies and punishments provided for under the old enactment still apply as if the repeal had not occurred. In short, the repealed law continues to apply to pre-repeal facts for most purposes as if it were still good law. These general statutory rules may for most purposes be supplemented or displaced by specific rules set out in the repealing legislation. (Driedger, supra) [23]The interpretation act for Ontario is now the Legislation Act and applies to Ontario legislation. Section 51 provides that ?the repeal of an Act or the revocation of a - 15 - regulation does not?affect a right, privilege, obligation or liability that came into existence under the repealed or revoked Act or regulation?? Section 52 speaks to procedural matters and notes that ?proceedings commenced under the former Act or regulation shall be continued under the new or amended one, in conformity with the new or amended one as much as possible.? Counsel for the grievor argued that only section 52 applied in this case. He argued that where an act was repealed and replaced Section 51 does not apply. I disagree. I find that I must agree with counsel for the employer?s argument as noted above in some detail on this point. Section 51 clearly states that it applies to all repealed acts. It preserves vested rights. There is nothing in the Legislation Act or the new PSOA that indicates that the new Act should apply retrospectively to vested substantive rights. [24]Under the Public ServiceAct and Regulation 977, the board had no jurisdiction to hear a wrongful dismissal complaint unless the grievor had been employed for twelve months. Jurisdiction is a substantive right as the Supreme Court of Canada has held in Royal Bank, supra. The Court considered a change to legislation that transferred the power to grant per saltum appeals from the Court of Appeal to the Supreme Court. Considering an argument that this was merely a procedural change the Supreme Court disagreed and held that: ?it is well established that jurisdiction is not a procedural matter, and no reason has been shown for holding that it becomes a procedural matter when a transfer of powers, rather than an increase or decrease, is involved?(supra). Whether a grievor has the right to a hearing before the board is a question of jurisdiction. It is clearly a substantive right, not a procedural matter. - 16 - [25]Counsel for the grievor also argued that in effect the grievor was an employee of CNCC when he worked for FCM and that under the Employment Standards Act the Crown is a successor employer and, therefore, the grievor satisfies the requirement of twelve months of service. He also argued that the twelve months of service was for a probationary period and since the grievor?s probationary period was waived, he should be allowed to grieve under the old legislation. All of these arguments would have me ignore the plain language of the Public Service Act, Regulation 977 and consistent jurisprudence of the board, which require the formal appointment of employment under the Public Service Act and then twelve months of service in order to grieve under section 22(5). See Garcia (supra),Rampersad (supra), and the GSB case, Stephens, et al, (supra). Decisions under thePublic Service Act, have often noted that the Public Service Grievance Board is a creature of statute and it had no inherent jurisdiction to hear employee grievances. The board?s jurisdiction here then must be found in the Public Service Act and Regulation 977, since these were in effect when the grievor filed his complaint. The board only had jurisdiction to hear the dismissal grievance of employees appointed to the public service and employed for twelve months. While I have found that Mr. Sisulak had an employment contract with the Ministry, he was not employed for the requisite twelve month before his employment was terminated. Therefore, I must find that I have no jurisdiction to hear this complaint. [26]It is for the above reasons that I granted the employer?s motion to dismiss the grievance. th Dated at Toronto this 30 day of April 2009. Deborah J.D. Leighton, Vice-Chair