HomeMy WebLinkAbout1977-0075.Harris.78-09-14Oetween: Mr. G. Harris (
The Crown in Right of Ontario
Mjnistry of Community and Social Services
Before: --- Professor Katherine Sxxintor
Mr. E. J. Cr;ini
Mr. Harry Simon
Vice-Chairman
Yember
Member
For the Grievor:
Mrs. Lillian Stevens
Grievance Officer
Ontario Public Service ERplO.yeeS Unicn
1901 Ycnge Street
Toronto, Ontario
For the Employer:
W. R. Marston
Employee Relaticns Officer
Personnel Services Branch
Ininistry of Ccmmunity and Social Services
5th Floor Hepburn 6lock
Queen's Park, Toronto
flearing:
Suite 2135
it33 Dundas St. X.
Toronto, Cntarjc
?ugust !lrh, 1978
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In this grievance, the grievor has claimed that he was unjustly
demoted from the position of Mechanic I, to which he was entitled on
the basis of seniority. The dispute involved the interests of a third
party, Mr. Frank Cameron, who presently holds the position of
Mechanic I. Mr. Cameron was present during the hearing of the grievance.
The grievor, Douglas Harris, was appointed to the position of
Building Cleaner and Helper I in Group 2 of the Unclassified Service
on February 10, 1976. He was attached to the Rideau Regional Centre
of the Ministry of Community and Sotial Services in Smiths Falls. On.
September 20, 1976 he was appointed to the regular civil service as a
probationary employee in the position of Building Cleaner 2. He
subsequently entered a competition for one of two available jobs as
Mechanic I in the Maintenance Department, and was offered a position
on December 9, 1976, to commence the new job on January 10, 1977.
Mr. Cameron, the third party, has a somewhat similar employment
history with the Ministry of Community and Social Services; although his
period of employment with the Unclassified Service commenced before that
of Mr. Harris - on June 9, 1975. He was appointed to the regular
service as a probationary employee on the same day (September 20, 1976).
He was also a successful candidate in the competition for Mechanic I,
obtaining the second of the two Mechanic I positions advertised and
commencing work January IO, 1977.
In March, 1977 the staff of the Maintenance Department was reduced.
Mr. Harris, the grievor, was returned to the Housekeeping Department to
the position of Building Cleaner 2. Feeling that he had been improperly
demoted, he grieved.
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The collective agreement (expiring January 27, 1977) is silent
as to the procedure to be used on demotions. The union has argued that
the employer should have treated the case as one in which two employees
of equal seniority sought the same job. With seniority equal (here,
dating from the period of appointment to the probationary staff on
September 20, 1976), the employer should have looked at the relative
ability of the two employees. Since Harris,was offered the position
of Mechanic I on December 9, 1976, while Cameron was offered his
position on January 5, 1977, after &he initial person selected proved
to be unqualified, the union argued that Harris was more qualified
and should retain the job.
The Ministry made its decision as to which employee to demote
on the basis of s.32(6) of Regulation 749 under The Public Service
A& (R.R.o. 1970, Reg. 749). That subsection reads: -
(6) A public servant shall not be released while
there is a public servant,
(a) who is in the sag classification or
position or in another classification
or position in which the public
ser’vant has served during his current
term of continuous employment;
(b) who is employed in the same administrative
district or unit,. institution or other work
area in the .same ministry;
(c) who has similar qualifications; and
(d) who has a fewer number of years of
completed service.
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The Ministry, feeling that Harris and Cameron had "similar qualifications"
(since they had both met the requirements of the position), focussed
on "completed years of service." Since Cameron had been within the
Ministry since June 9, 1975 (albeit as a member of the Unclassified
Service) and Harris since February 10, 1976, Cameron retained the
position.
The issue facing this Board is the meaning of "completed service."
Should the period during which the employees were in the unclassified
service be included in the period of "years of completed service", for
purposes of demotion?
Section 32 gives little guidance, except that subsection (2)
says that the section does not apply to......."persons appointed to
Group 2 of the unclassified service." The intention behind that
exclusion would appear to be to protect public servants appointed to
the regular service in preference to temporary appointees in the
unclassified service at times of lay-off. That subsection does
not assist us here, for both Harris and.Cameron. while initially
appointed to Group 2 of the unclassified service, held probationary
status at the time of lay-off. Subsection (2) does not indicate
whether the period of employment in the unclassified service could
subsequently count towards years of completed service in subsection 6.
That would have to be determined by looking at subsection 6 in
conjunction with the seniority provisions of the collective agreement.
The collective agreement does not provide much guidance either,
having no provision to cover demotions. Article 19.1 deals with
i
calculation of seniority (or "length of continuous service") in the
following terms -
19.1 Length of continuous service (seniority) for
each employee covered by this Agreement shall
be Province-wide and shall be established upon com-
pletion of the probationary period of not more than
one (1) year and will then com?nence from the date of
the employee's hire.
Seniority is established upon completion of the probationary period.
Neither Harris nor Cameron had reached this stage. Seniority would then
date back to the date of the employee's hire. We need not enter upon
an extended discussion of the scope of this phrase "employee's hire"
at this time. It is difficult to see how the period which some employees
have spent in the unclassif,ied service can be included in the calculation
Of Seniority, for s.l(l)(g)(v) and (vi) of the crown Employees Collective
Bargaining Act exclude certain members of the unclassified service
from the definition of "employee" under the statute. It is doubtful that
they can claim that their seniority dates from their entry into the
-unclassified service, since they are not "employees" under the Act (nor
within the collective agreement) because of s.l(l)(g) (v) & (vi). That
would not seem to be the case for Harris and Cameron, since they do not
appear to fall within these exclusions and, therefore, appear to be
"employees" from the period of their entry into the unclassified service.
(See Ontario Public Service Employees union & Ministry of the dttOmey_
general (Fitzsimns & vice) l/77.) However, in this case, article lg.1
can give us only limited assistance, as these employees had not yet
completed the probationary period.
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The Board was referred to article 3.4.3 of the collective
agreement for further assistance. That section reads:
Employment in either category shall not be
considered continuous service. dn employee
in either category who is appointed to the probationary
status of the Civil Service shall be considered to be a
new employee. Provided however, that if such a position
becomes permanent then the time the employee actually
worked shall be deducted from the employee‘s probationary
period, if the employee has worked within the year prior
to the appointment to probationary staff.
Article 3.4.3 deals with employees who fall within a narrow class: those
exempted from the group of public servants who have been excluded from
the definition of "employee" by s.l(l) (g) (v)~ of the crown employees
Collective Bargaining Act. That exemption reads:
(V) a student employed during the student% regular
vacation period or on a co-operative educational
training program or a person not ordinarily
required to work more than one-third of the
non& period for persons performing similar
work except where the person works on a
regular and continuing basis,
Article 3.4.3 states that employees in the unclassified service who fall
within the s.l(l)(g)(v) exemption cannot regard their period of service
in the unclassified service as "continuous service." They must be regarded
as new employees when appointed to probationary status. If-their position
becomes permanent, the time that the employee has actually worked will
be deducted from the probationary period.
The purpose of article 3.4.3 was discussed by another panel of-this
Board in M&mood and Ministry of correctional Services, X5/76. There the
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grievor claimed credit for his period of employment in the unclassified
service in calculating the length of his probationary period. Professor
Beatty refused to accept this proposition, noting that the probationary
period was designed to give the employer an opportunity to evaluate the
employee's suitability in a particular position. The employer might not
have considered this question of suitability while the employee was on
temporary staff in the Unclassified Service and should be given time to
do so when permanent employment was contemplated.
The ~&mood case does nothing to assist the Board in the disposition
of the present case. Here we are not dealing with the periods of
employment which should figure in the calculation. of an employee's probationary
period. We ares dealing here with the years of employment service which
should go into the calculus of "years of completed service" when an employee
must be demoted according to s.32(6) of Regulation 749. As Professor
Beatty noted in ~ahmood, there is good reason' to exclude the period in
the Unclassified Service when an employee is appointed to the regular
service on probation. The employer needs an opportunity to evaluate
the employee's suitability for that particular permanent position. There
is no equivalent rationale for excluding the period of Unclassified
Service from the calculation of years of completed service when a demotion
situation arises. The employee with the greater number of years of
service with the Ministry has built up a form of equity in his job, and
it is only fair and reasonable to recognize this in choosing which of two
similarly qualified employees must be demoted. The parties concluded, in
article 3.4.3, that employees should be credited with their years of
unclassified service at an appropriate time. It is also reasonable
" for the employer to take this period of unclassified service into account
when deciding the length of an employee's service, for purposes of
demotion or lay-off, particularly when we are dealing with two employees
with similar employment histories.
Therefore, since Mr. Cameron has been employed longer than Mr. Harris
by the Ministry, he was entitled to the Mechanic I position. The grievance
is dismissed.
Dated at Toronto this 14th day of September, 1978.
Katherine Swinton - Vice-Chairman
I concur
E. J. Orsini - Member
I concur
Harry Simon - Member