Loading...
HomeMy WebLinkAbout1982-0342.Mills.83-01-112. :, .:: I. IN THE MA.TTER OF AN ARBITPATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between :~ OPSEU (Jack W. Mills) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer Before: G. Brent Vice Chairman E. J. Bounsall ‘Member D. B. Middleton Member For the Grievor: P. A. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: H. J. Laing Counsel Crown Law Office Civil Ministry of the Attorney General Hearing: December 10, 1982 ; - 2 - ( ” DECISION The griever claims in his grievance, dated May 3, 1982, that he should have received the position of Leasing Agent (Property Agent 2) with the Ministry of Government Services. At the time of the grievance, he was employed as a Property Assessor III in the Mlnistry of Revenue. There is no doubt that the griever applied for the position in dispute and that he was treated as a candidate. This decision-will-hot deal with any aspect of the assessment of the candidates, as such; by agreement of the parties It will be limited to the determination of the c: length of the griever’s continuous service. The parties are agreed that this will either be counted from September 24, 1968 or from January 31, 1977. Depending on the determination of this question, the griever ~. will be either more senior than any of the successful applicants or less senior than any of them. Once the question of service is determined the parties will know what standard must be applied in assessing whether there has been a breach of Article 4.3 of the agreement. It was agreed that following the release of this decision the parties would notify the Board concerning their intention to pursue the matter further. The grievor was first employed by the Ministry of Revenue as a c Realty Assessor in the Succession Duty Branch on September 24, 1968. At the time of his appointment he took both the Oath of Allegiance (Ex. 6) and the Oath of Office and Secrecy (Ex. 7) “as a civil servant”. In 1975 he was transferred to the Assessment Division of the same mlnistry after his position was abolished (Ex. 15). He chose to go to the Assessment Office located in North York. The arrangements under which this transfer took place were that it wag to be a temporary relocation. From the evidence given by the griever and by Mr. James Glenny, who was also affected by the redundancy, they were assured by the Minlstry that :. :, comparable positions would be found for them. It is clear that the griever was not satisfied with his temporary relocation, and that he was given consent and time off to explore other alternatives both within and without the Ontario Public Service. On November 5, 1975 he wrote the following letter (Ex. 12) to his supervisor in the North York office: November 5, 1975. Mr. R. J. Guinn Assessment Commissioner North York Regional Office Dear Mr. Guinn: This is to certify that effective Friday, November 14, 1975, I shall be leaving your office---- to take another position. I would like to express my appreciation to you and Mr. Donovan during my brief stay in Assessment. You have been both fair and understanding to my situation caused by the termination of the Realty Department of the Succession Duty Branch. My sincere thanks again. Yours very truly, “Jack W. Mills” The other position referred to in the letter was with the Workmen’s Compensation Board of the Province of Ontario. He commenced work there on November 15, 1975, and at that time executed the Oaths of Allegiance (Ex. 10) and of Office land Secrecy (Ex. 11) as “an employee of The Workmen’s Compensation Board of the Province of Ontario’: He left the Workmen’s Compensation Board on May 13, 1976 and was issued a separation slip (Ex. 13) showing that the reason for leaving was “terminated unsui table for position”. According to the griever’s evidence, between May 13, 1976 and January 31, 1977 he was “unemployed” and “looking for work”, This search for work was taking place both in the public and private sectors. In .the course of his search, he discovered that he was not being - 4 - (’ considered for positions within the Public Service of Ontario because he was not considered to be a civil servant any longer. He said that he took steps to have the situation rectified, and as a result of his efforts the following memorandum (Ex. 5) was sent to the Director of Personnel Services in the Ministry of Revenue from the Chairman of the Civil Service Ccnrnission, Managevvznt Board of Cabinet: May 13th, 1976. Memorandum to: Mr. W. E. Stanley, Director, Personnel Services Branch, Ministry of Revenue. From : . S. W. Clarkson Re : Mr. James Glenny Mr. Jack W. Mills -, In order to be of assistance to the above noted individuals in locating employment in the CivilService, I have determined that they should be allowed the same privileges as regular Civil Servants in applying to service-wide camps ti tions. Anything you can do to help Messrs. Glenny and Mills would be appreciated. c. Mr. Glenny, who was also involved in securing the above memorandum, testified that he obtained a new position in the Ministry of Government Services in September, 1976. .He said that this new position was not obtained as a consequence of the memorandum, but that the memorandum was a device to enable him ‘to apply because of his status. When Mr. Glenny be@n his employment with the Ministry of Government Services he started afresh regarding the calculation of his continuous service. He has not done an~ything to contest that. Mr. Gleony had also taken a position with the Workmen’s Compensation Board from November, 1975 to May, 1976. ’ a, * - 5 - .( On January 31, 1977 the grievar began his employment as a Property Assessor III in the Ministry of Revenue. At that time he executed the Oaths of Allegiance (Ex. 8) and of Office and Secrecy (Ex. 9) ‘hi a civil servant”. It was the griever’s evidence that he did not attach any significance to the fact that he was asked to take the various oaths with the different agencies, because he considered that it was just a normal incident which occurred whenever a person changed positions. Mr. Larry Clarke has been involved in personnel administration in the Ministry of Revenue for at least the past seven years, and as such (-, is familiar wi,sh the griever’s personnel records. Mr. Clarke testified that the letter which the griever wrote to Mr. Guinn on November 5, 1975 (Ex. 12 supra) was treated as a letter of resignation, and as a consequence, it triggered the preparation of all of the termination documents which accompany resignations., One of the documents prepared was a “Separation Notice” (Ex. 16), which showed that the griever had resigned effective November 14, 1975 to take a better paid position. This is an internal document,, and the griever would not have received a copy of it. Mr. Clarke said that he prepared the document based on the griever’s letter and a conversation with Mr. Guinn in which he learned that the griever was going to the Workmen’s Compensation Board. In fact, the griever said that he ~took a lower salary when he went to the Workmen’s Compensation Board. Mr. Clarke testified that, following the receipt of the information that the griever was going to the Workmen’s Compensation Board, he engaged in negotiations with the Workmen’s Compensation Board concerning the transfer of any of the griever’s remaining vacation and sick day credits. He said that this is usual when employees resign, and is done on the basis of a case by case negotiation with external agencies. He - 6 - ! also said that the griever applied to have his pension credits transferred to the Workmen’s Compensation Board, and that the pension credits were transferred there. He said that there are mutual agreements between <he Government of Ontario and other agencies, such as the Workmen’s Compensation Board, regarding the transfer of pension credits. Mr. Clarke said that he was aware of the memorandum (Ex. 5) on the grlevor’s file, and that, in his view, it allowed the griever to compete for any position in the Ministry. He also said that it was followed by the following memorandum from the ’ fiti1 service CQRnission Rx. 17) : May 20,. 1976. _. Memorandum to: Mr. W. E. Stanley, Personnel Director, Ministry of Revenue. From: Re : J. S. Tribble Eligibility to Enter Service- Wide Competitions The following employees of the Ministry of Housing are eligible to apply for service-wide compe ti ti ons : Francis Auerbach Lillian Gold Shiu Chin Melanie Block The following ex-employees of the Ministry of Revenue have also been granted the right to apply to service-wide competitions: W. J. Humphrys J. W. Mills Jaues Glenny These names should be added to the current list and maintained until further notice. - 7 - He said that on January 31, 1977 the grieve; was hired by the Ministry of Revenue and “start papers” were processed for hlm. The originating document (Ex. 16) is entitled “Authority to Appoint to Probationary Staff and/or Assign to a Posieion”and it shows that on January 31, 1977 the griever was appointed to the ‘Probationary Staff of the Ontario Civil Service”. Mr. Clarke said that if the griever had been a member of the Ontario Civil Service on January 31, 1977, then he could not have been appointed to the Probationary Staff. The grievor started above the minimum salary for the position, and Mr. Clarke agreed that this was not the normal procedure for a probationary employee. It was Mr. Clarke’s evidence that this was done because he insisted that the griever’s past experience be recognized, and that this was his usual practice for others who have returned to the civil service. On January 31, 1977 the griever executed a document (Ex. 22) entitled ‘Contributor’s Statement (To be completed by new contributors to the Public Service Superannuation Fund)“. It contains information concerning the griever’s employment history. In the space (No. ~9) for inserting ‘Date of appointment to classified service”is written “31 January 1977”, and in the space (No. 10) headed ‘If you had any service prior to date in No. 9, give particulars:” is written ‘York County Assessment Aug.11960 to 1968”, ‘Revenue Aug.11968 to 1975”, and “Workmen’s Compensation Board.1975 to 1976”. The ‘Yes” box is also checked in response to the following question, ‘If eligible to pay arrears, do you wish to contribute for the past service indicated in No. 101 (See Note below.)“. In January, 1978 the griever was appointed to the regular staff. The internal document which records this (Ex. 21) is dated December 21, 1977 and is signed by Mr. Clarke. Mr. Clarke testified that in 1975 the -8- griever was a member of the regular staff. It was Mr. ~Clarke’s evidence that there was nothing on the griever’s personnel file which would indicate that he had been seconded to the Workmen’s Compensation Board in 1975. He said that, although there were no documented procedures for the secondment of employees in 1975, if the griever had been seconded there would have been something on file to that effect, and the Ministry would have had to make arrangements to receive compensation from the outside agency so that the Ministry could continue to pay the employee. There is no doubt that the griever’s payments from the Ministry of Revenue ‘ceased in November, 1975, and from that date until May, 1976 he was paid by the Workmen’s Compensation Board. The griever testified that it was never his intention to resign from the civil service, and that he w&ded his November letter (Ex. 12) very carefully with this In mind. Nevertheless, it is clear that the letter was considered to be a letter of resignation and that it was processed as such. It is also clear that in 1976 the griever was aware that he was considered to have lost his status as a civil servant, and that he took steps to remedy the situation. It should also have been clear to him in 1977 that he was being treated as a new employee’when he was considered to be a probstionary’employee. While there is no doubt that Mr. Clarke considered that the griever severed his connection with the Minlstry in 1975, it is possible to read the memoranda of May, 1976 (Exs. 5 6 17) as being ambiguous. Exhibit 5 does not indicate anything about the status of the individuals; it just says that they are to be ‘allowed the same privileges as regular Civil Servants in applying to service-wide competitions”. Exhi bi t 17, which -9- ( .Q ,, was not sent to the griever, refers to him as an ‘$x-employee of the Ministry of Revenue” wihtout saying anything about hi&current status. In short, if one wanted to search for ambiguities in the writ.ten documents prepared by the griever or the Civil Service Commission, it would be possible to find them. I” 1975 there was no collective agreement between Management Board of Cabinet and the Ontario Public Service Employees Union. At the time of the competition there was such a collective agreement which contained the following relevant provisions: 4.3 In filling a vacancy,. thz Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. 25.1 An employee’s length of continuous service will accumulate upon completion of a probationary period of not more than one (1) year and shall commence from: (a) the date of appointment to the Classified Service for those employees ..- . Public Service; or (b) the date on which an employee commences a period of unbroken, full-time service in the public service, immediately prior to appointment to the Classified Service. ‘Unbroken service” is that which is not interrupted by separation from the public service; and “full-time” is co”ti”“o”s employment as set out in the hours of work schedules for the appropriate classificatio”s. 25.3 Continuous service shall be deemed to have terminated if: (a) an employee resigns or retires; or . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..*.......... I - 10 - ( (d) an employee is released in accordance with Article 24, Job Security, and remains released for more than two (2) years. It is clear that Article 25.3(d) has no application to this case, even though the griever was not away from the Ministry of Revenue for more than two years. In order for Article 25.3(d) to apply, the griever would have had to. have been “released in accordance with Article 24” and there was neither a collective agreement nor an Article 24 in existence in 1975. Therefore, the only thing to be considered is whether there i was a resignation in 1975 which would have broken the griever’s continuous~ service as it now must be calculated in accordance with the Article 25.1 definitions, (. While it is possible to accept the griever’s statement that it was never his intention to resign or to give up his status as e civil servant in 1975, that statement must be looked et in the context of what was happening. He was making a career change: the job which he took with the Workmen’s Compensation Board was not a temporary placement, and it would shave been permanent had the griever and the Workmen’s Compensation Board been satisfied. The griever was merely trying to keep all of his options open in the event that the new job did not work out. It should have been clear to him, and to anyone else who took the time to consider what was happening in November, 1975, that the identity of his employer was changing to the Workmen’s Compensation Board. That is the body that from November, 1975 until May, 1976 set his terms and conditions of employment and paid him. It is interesting to contemplate that, had the griever’s new position at the Workmen’s Compensation Board worked out, then clearly this issue would never have arisen. In that case, the treatment of the . ,.. : i - 11 - . / ,. I November letter (Rx. 12) as a resignation would never have been questioned. If it was never intended to be a letter of resignation, then how could the Ministry ever treat it as a resignation? Clearly the griever must have intended it as at least a conditional sort of resignation; however, he never indicated to the Ministry under what condition it would have become opera’tive as a resignation. In any event, after May, 1976 until January, 1977 the griever was, by his own admission, employed by nobody. He obviously did not consider himself to be an employee of the Government of Ontario, because he did c not return to the Ministry of Revenue demanding his job or demanding payment as an employee. His primary concern was one of having some recognition of his status as a civil servant for a particular purpose, that is, so that competitions could be open to him. Given all of the facts in this case - a letter written on the occasion of the griever’s leaving to take up a job with another employer, no arrangements made on the griever’s departure from the Ministry of Revenue regarding secondment to another agency or regarding his return to the Ministry, and no demands made by the griever that he was entitled to employment by the Ministry in May, 1976 - it is indeed reasonable to conclude that the griever did resign from his employment in November, 1975. Moreover, his actions after leaving the Workmen’s Compensation Board are consistent as those of someone who, although he believed that some obligations were owed to him by Management Board under the circumstances, did not consider that he was an employee of the Province of Ontario, or anyone else, after May, 1976. It should also be noted that the griever would have known in January, 1977 that he was being treated as a probationary employee and that it was considered that his status as a regular employee had ceas.ed at some point in the past. 1n spite of this, he did not contest his appointment as a probationer or his treatment as a new employee at that time. This would be consistent with a recognition that service with the employer had been broken.. No ones would have had notice from the griever’s actions that he was contending that his service was unbroken. Given all of the facts which have been outlined above, it must be concluded that the griever’s service with the employer was broken, if not in November, 1975 when he left to go to the’workmen’s Compensation Board, then certainly in May, 1976 when he left the Workmen’s Compensation Board and dih not resume employment with the Ministry of Revenue. Therefore, it must be concluded that his length ~of continuous service should be computed from January 31, 1977. The Board will remain seized of the matter for the purpose of determining whether there has been a bleach of Article 4.3. The matter will be remitted to the registrar, and a date will be set for the continuation of the hearing upon notification by the parties that they. wish to have the matter determined. DATED AT LONDON, ONURIO THIS 11th DAY OF JanuarY , 1983 6: 3210 6: 1110 6: 1120 Gail Brent, Vice-Chairman. (to follow) E. J. Bo~~.~all, &?r&?r D. E. Micldleton, Ple&er