HomeMy WebLinkAbout1980-0484.Del Giallo.81-06-23Between:
IS T9E MATTER OF AN ARBITRATION
Under The
CROWN EXPLOYEES COLLECTIVZ BARGAINING ACT
Before
THE GRiEVANCE SETTLEMENT BOARD
Brenda Del Giallo Grievor
- And -
The Crown in Right of Ontario
(Uinistry of Correctional
Services) Employer
Before: E. B. Jolliffe, Q.C. Vice Chairman
A. 11. McCuaig llember
R. Russell bfernber
For the Grievor: R. Nabi, Grievance Officer
Ontario Public Service Employees Unitin
For the Employer: E. J. Anthony Regional Personnel Administrator Ministry of Correctional Services
Hearing: March 4, lYS1
DECISIOii
In August of 1980 3rs. 3renda Del Giall.0 sieved
that she had been "terminated without just cause" azd re-
quested that she *be reiastated with full pa3 and all jene-
fits" from the date of termination. 3er grievance xas
referred TO thii*3oard on September 25, l%?O, but on 3a=ruzz-~
29, 1931, the parties asked for an adiounnect ?eadizg the
outcome of JO~ZS~;OX, 292/79. Shortly thereafter a ma;ori$y
decision ti that case was issued.
This grievanca hav'4g come on for heaAAg &x‘:: 4,
there was considerable discussion of ciohnston md other ye-
cedents. 20s the sievor, Xr. Xabi contecded that VTci?-.sfcr.
was "ma?lifestly wrong" and he relied on the dissenting
opinion of i?s. McIntyre. Ee suggested that the aoard await
the disposition of Johnston on a forthcoming application for
judicisl review. sonever, that application has not been listed
for hearing as of this date and Mr. Xabi has xithtiawn his
suggestion. It is therefore considered appropriate to decide
the matter without further delay.
The emplopent histon of the gzievor ztot in dis-
pute is set out clearly in a statement signed and filed at
the hearing by the two representatives of the parties,
Exhibit 2, as follows:
1.
Grievor Wed by Ministry of Correctional Services, March 16, 1977. 2. Grievor was appointed to the unclassified staff as a clerk SE, General to work ur, to 24 hours ger week.
. . T.
3.
4.
5.
6.
2
9.
10.
grievor
Grievor was hired to perform clerical duties in the administrative office of the Srantford Jail. Grievor was appointed to the classified staff as a ,robationaq employee on September 4, 1479. Grievor was hired as a irlerk III, 'General to perform clerical duties at the 3rantford Zail. Grievor was hired to work as a full-time employee at 36% hours per week.
Grievor was terminated effective August 1, 1550. Grievor was terminated for the reasons set out in the attached letter. Grievor was absent from emaloment on the dates set out in the attached memo. Griever's absence record was brought to her attention in A&l of 1980 by her Superiors.
Also forming part of 2xhioit 2 is a letter to the
from iir. X.5. Wright-, Superintendent of the 3rantford
Jail, dated Zulg 24, notifying her that she was to be released
from employment eight days later under section 22(s) of the
?ublic Service Act. Ze said further:
This action is based entire17 upon your exces- sive absence from work during your probationary period and is in no way a reflection on your work performance to date, nor does it ti sn~ way question the bona fides of your absence. towever as I how you are aware, -- regular attendance in a pisition such as yours is crucial to the effective oDeration of the Brantford jail.
Another attachment to Exhibit 2 is a menorandum from
Hr. Wright to the 3egional Personnel Administrator detailing
1%~. Del Giallo's absences between September 28, 1979, and
3tiy 31, 1980. These absences, all due to sickness, totalled
33 days, and ~a doctor had certified that she should be "off
her feet" from August 1 to 20, another 15 working days if she
were not released as of August 1.
Shortly after the hear&,-, I".r. Ant'kon~ also filed
(at the Board's request) copies of four "dppotitmexlt to Gn-
classified Service" (which he termed "contracts") made ti
respect of I?rs. Del Giallo as a 24-hour per week employee
between Piarch 16, 1977, and ilarch 31, 1980, sltkough the last
Cant,-act ag?ears to have been interrupted bg her ar,I:ointmect
as a full-time grobationar7 employee on September 4, 1979.
'The four "Appointnents" were as follows:
(1) March 16, 1977, to June 30, 1977, as a Cierk 2
Genersl, hours >ot to exceed 24 ger .deek.
(2) July I,-1977, to PIarch 31, 1978, as a Clerk 2
General, hours not to exceed 24 ger week.
(jj March 1, 1578, to Plsrch jl, 1979, this tize as
a Clerk 3 General, normal hours of work not to exceed 24.
(4) April 1, 1979, to kroh jl; 1980, again as a
Clerk 3 General, normal hours of work not to'exceed 24 -,er
week.
As already noted, the last appointment to Unclassi-
fied Service as a part-time employee did not run its full
course because Mrs. Del Giallo was appointed to the Classi-
fied service as a full-time probations.ry'Clerk j General OXL
September 4, 1979.
The employer's Dosition very simglg is
that her probationary period of one year commenced to mn on
that ,date, that she was still a probationer on August 1, 1980,
and that the EmFlayer could at that time invoke the power
vested in it by section 22(5) of the iublic Service .~ct to
"release from employment any public servant durtig t'he fi-st
year of his employment for failure 'to meet the requirements
of his position." The Zaployer further relies on Article
27.6.1 of the applicable collective agreement, which states:
Any probationary em;iloyee who is dismissed or released shall,not be entitied to liie a grievance.
?he Emgiopr thus argues that the matter is not
erbitrable.
The Union, OR the other hand, contends that Xrs.
3el Gi$.lo was no longer a probationary employee on August 1,
1980, havtig been continuously employed in one capacity or
another since ?iarch 16, 1977, a Deriod of more than three
yesrs.
The facts here are similar to those in Z"J(C?BF, 2C6/78,
where Chairman 3eatheril1, at gage 7, tiew a clear distinction
between a disciplinary dismissal(grievable and arbitrable under
section 17(Z) of The Crown Employees Collective 3srgatiing Act)
and a.release under section 22(5) of The &Public Service Act.
is to the facts in that case, it was said:
In fact, the grievor was away from work, on menEal leave of absence, from end after May, of . She was at work, then, for about one-half of the "probationary period". hiring this time, she submitted medical certificates as required, and these were accepted. There is PO .question as to the bona fides of the griever's absence. At the
time of the notification of her release fron employment, the griever, on her own testimony, would not have been abie to go back to her old job.
Nothing in these circumstances Termits the conclusion that the employer's action was based on an improoer motive or that it was intended as some sort 03 disciplinary measure. Lie cannot therefore, prooerlg characterize the matter be- fore us as one involving dismissal without just cuase within the meantig of Section IT(Z) of 'T;e Crown Zmgloyees Collective 3srgainin; Act. Certainly, as we have seen, the matter is not one with respect to which the collective agree- ment gives us jurisdiction.
: The facts here are also somewhat similar to those .:: irr ~oh~.ston 292/79, referred to at the outset of tnis decis'"" -"A-.
Koreover , the submissions of the representative of the Snion
appear to have been the same. b siOir,l8507Z
- - as recited by
Chairmsn :Jeatharill in the majority decision - - it was con-
tended that the griever was no longer in the first year of
her employment LI the public service and could not then -oe
released pursuant to section Z(5) of The Public Service Act;
second, that if the griever was dismissed and not released,
there was not in the circumstances proger cause for such dis-
missal and thtid, that if the griever was indeed released the
Board should review that release.
The griever in Jo?nstor. (like the griever in this
case) had commenced work in the "unclassified service" as a
.. part-time emgloyee and continued under "sequential emplogPent
contracts" (each apparently of about one year's duration) as
a full-time employee. Three days before the expiry of her last
geriod in the unclassified service she sras aosointed to the
classified service, thus becoming a "civil serrat" in the
strict sense. Zer release occurred within one year there-
after. The _oroblem was posed by Chairman 'Leatherill in the
following words:
Thus, at the time of the termtiaticc of her employment the grievor had beena Crown employee end a public servsnt for some three years, al- though she had been in the classified service, and a civil servant, for less than one gear. 3
these circumstances, was it open to the employer to release the griever from employment pursuant to section 22(5) of ,The Xaiic Service Act?
After discussing the grovisions of sections
6, 7, 9 end 22 of The Public service Act, .end the dis?kinctlon
between a "ublic servant" ~(ithich the griever 'had been for
two years or more) and a "civil servant" - - which she became
on her appohtment to the classified service, the majority k~
johnston concluded that her probationsry period began with the
last-mentioned~appointment, that she had therefore been re-
leased during the probationary period and that it was o_oen to
the Employer to release her pursuant to Section 22(5) of The
Public Service Act.
We see no difference in piacigle between this case
and either Tucker or .:ohmton, and we adopt the same reasonkag.
There ace precedents in the federal public service as well as
the Ontario public service k.~ which arbitrators have aclolow-
ledged the proposition that .sn appointment "for a snecified
?
ceriod" means exactly what it says, so that the appoktnent d
commences to be effective on the fi-st day snd ceases to he
effective "at the expiration of that period" - - - i.e. on the
last day. It is so provided by Section 9 of The Public service
act, using the same language as in the Federal Pubiic service
Employment Act. Of course the appointment may end before the
axpiry date by reason of death, resignation, dismissal for
cause, release - - - or appointment to another position - - -
but such terminati;;ns do not affect the prktciple. (Zt nay
‘oe noted that both KS. Johaston snd the grievor fin this case
were appointed to the classified service before the eGi,-J of
the last specified period of employment in the unclassified
service). 3ach appointment stands on its own and is separate,
and distinct from others. LegsJly speaktig, there is no ccn-
tinuity between them, even though an employee snd others nay
have the impression that service is continuous.
The problem has been fully explored in Tucker and
Johnston.
Perhaps, however, it would be in order to add a
further comment. In these cases it has been suggested that
more than one year of employment in the unclassified service
under one or more appointments"for a specified period" is
the equivalent of more thsn one year of employment in the
classified service as a civil servant. Thatsuggestion is
irreconcilable with sections 6, 7, 9 and 22 of The Public
Service Act. Similarly, it has been suggested in these - - -
.,
and in other gcevious cases - - - ';haz a pobazionaq om$o~ee
has the same rights as other employees under Zectioos 17 and
la of The Crown Zm?loyees Collective Jaqainkg .;cz. 'TO sug-
gest there is no difference is incoosistent with the provisions
of The Public Service Act, which eqressly recognizes the dif-
ference. Moreover, the suggestion is ir. coaflict with kTicle.
27.6.1 of the aseement betireen the iknagement 3oard of Gdoket
and the Ontario Public Service Zmgloyees IJnion, x’kic’h evem no-e
clearly recognizes the difference.
Zor the reasons given, iIs. Ilel Gialio’s gzievaoce is
not arbitrable and must be dismissed.
Dated at Toronto
thismday of June, 1981
E. B. Jolliffe, Q.C. Vice-Chairman
"I concur"
A. M. McCuaig Xenber
"I concur" (See addendum)
R. Russell Member
ADDEXDUM
484180
Brenda Del Giallo and
The Crown in Right of Ontario
I cannot disagree with the Board's report where on page 8
it states "Legally speaking, there is no continuity between them,even
though an employee and others may have the impression that service is
continuous."
Regrettably the decision is based on very narrow legal
interpretations. Whereas, it is well known that a probationary per-
iod is normally agreed upon between an employer and a union to give
the employer a fixed period.of time (in this case one year) to det-
ermine if the employee is able to do the work satisfactorly and gen-
erally is satisfactory to-the employer. In the instant case the empl-
oyer had several years to make the necessary judgements and was clear-
ly satisfied. This is clearly evident in two ways. One the employer
several'times re-newed this employees appointment. And secondly, the
employer upgraded this employee and requested her to do full time work.
The only complaint against this employee is that after work-
ing for several years for this employer, through no fault of her own, she had a series of illnesses during the first year she worked full
time. Had these illnesses taken place in the second year of her full time employment with this Ministry she could not have been discharged,
or if she was the Collective Agreement would protect her.
It is my view that whenever an employee who works 24 hours or
less on Contracts similar to the grievor and said employee has been a
satisfactory employee to the point where the employer invites the said
employee to a full time job in the classified service, the employer
should be obliged to set out the following facts to the employee.
That the seniority of the employee does not count during
the period he or she was in unclassified service. This means if they accept the new appointment to full time classified service they will
be regarded as a NEW employee, having to serve the full probationary
period like any other new employee.
I belfeve it is only fair to all concerned that the employee knows and understands the terms which he or she is accepting(or rejecting)
before starting to work under the new conditions that prevail.
Ross Russell - Member Ross Russell - Member