HomeMy WebLinkAbout1982-0444.Beach.83-01-20:
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Between:
Before:
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IN THE MATTER OF AN ARBITRATIOX
Under
INIXG ACT THE CROWN EMPLOYEES COLLECTIVE BARGA
Before
THE GRIEVANCE SETTLEMENT BOARD
For the Griever:
For .the Employer:
Hearing:
OPSEU (John IV. ,Beach)
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Griever
The Crown in Right'of Ontario
(Ministry of the Environment)
Employer
R.L. Kennedy Vice Chairman
P. Warrian Member
F. Collict Member
P.A. Sheppard
Grievance Officer Ontario Public Service Employees Union I
L. Macintosh
Counsel Crown Law Office Civil
Ministry of the Attorney General
December 14, 1982
This matter comes before the Board on a statement of
fact agreed to by the parties'in the following terms:
AGREED STATEMENT OF FACTS
1. The parties agree that their relationship was' governed, at all times material to this case, by the
Collective Agreement between 'the Ontario Public
Service Employees Union (the "Union") and the Employer with respect to working conditions and employee
benefits signed July 28th, 1980.
2. The Grievor is currently employed with the
Ministry of the Environment (the "Ministry") at
Nanticoke, Ontario, as an Instrument Technician.
3. In his Grievance Form dated July 13, 1982, the
Grievor stated his grievance as follows:
"AS a U.S. citizen 6 a landed immigrant,
having not taken an oath-to the Queen disquali,fies me for permanent status b severence pays upon termination. I feel this is
discriminatory as I have contributed my energy
& abilities, the same as my fellow workers to
the M.inistry of the Environment."
A copy of. the Grievance Form is attached hereto as Schedule !'A".
4. In the Grievance Form, the Griever requested
the following settlement:
"I have over four years of service at this time with the Ministry of the Environment, and I
request a declaration'of my entitlement to
(severance pay) benefit, should I terminate
employment.W
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5. The Griever was born in North Hollywood;
California on September 30, 1935 and he is currently a citizen of the United States of America.
6. The Grievor has had landed immigrant status in
Canada since April 1, 1969 and has always resided in
Ontario since that time.
7. The Grievor was appointed to the probationary
staff of the classified service effective June 26,
1978.
a. At the time of documentation, following
acceptance of the appointment, the Griever was asked
among other things to take and to subscribe to an Oath
of Allegiance to Her Majesty-the Queen in the form set
out in subsection lO(2) of the Public Service Act,
R.S.O. 1980; c. 418. At the same time, as is the
practice of. the Employer, the Employer advised the
Grievor that the swearing of an Oath of Allegiance might affect his status as a U.S. citizen. Upon
receiving this advice the Grievor consulted with the
U.S. Consulate and was advised not to take the Oath.
9. The grievor did not at that time and has not since taken the Oath of Allegiance.
10. The Grievor's employment status has come up for
review annually since the time of his initial
appointment. The Grievor has never been recommended
for an appointment to regular staff because he has not
taken the Oath.of Allegiance. Accordingly, the
Employer re-appointed the Grievor to the probationary
staff of the classified service on June 26, 1979 and has re-appointed the Grievor to the probationary staff
of the classified service effective on the anniversary
date of his. initial appointment in each of the subsequent years.
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11. The Grievor has not been appointed to the
regular staff of the classified service..
12. The Grievor has not ceased to be an Empioyee Of
the Employer.
13. The Grievor has in all respects been a more
than satisfactory employee.
14. The Personnel Services Branch of the Ministry '~provided the Grievor with a letter dated October 14, 1982 from the Consulate General of the United States
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of America, outlining the effect of the swearing of an oath of allegiance to another country or sovereign
upon United States citizenship. A copy of that letter, together with a copy of a leaflet also
provided by the Consulate, is attached hereto as
Schedule "8".
15. The Grievor continues to object to swearing the
Oath of Allegiance because:
1) he feels that there is no guarantee that
swearing the Oath will not affect the
integrity of his U.S. citizenship: and
2) because he has a-moral or conscientious
objection to dividing his allegiance.
The materials portions of the Grievance Form attached
to thee Agreed Statement of Facts as Schedule "A" have been
reproduced in paragraphs 3 and 4 of the Statement. We do not
consider it necessary to set out in detail the contents of the
letter from the Consulate General of the United States and the
supporting pamphle~t information attached to the Statement as
Schedule '8" since they reasonably support the conclusion set
out in paragraph 15 of the Statement of Facts. In his oral
evidence, the Grievor indicated that the information he received
from the Consulate was that in all probability there would be no
problem with his U.S. citizenship in, the event that he were to
take the oath but.that no specific guarantee to that effect
could be given.
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The provisions of the Collective Agreement to which
the parties referred provide as follows:
> ARTICLE 25 - SENIORITY
(LENGTH OF CONTINUOUS SERVICE)
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 with no prior service inthe
Ontario 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
continuous employment as set out in the hours of work schedules for the appropriate classifications.
ARTICLE 52 - TERMINATION PAYMENTS
This Article is effective April 1, 1978'
52.4 An employee,
(a) who has completed a minimum of one (1) year of
continuous~ service and who ceases to be an
'employee because of,
(i), death,
(ii) retirement pursuant to, 1. section 17 of The Public Services Act, or
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2. section 12 or 18 of The Public Service Superannuation Act, or
ii) release from employment under subsection 4
of section 22 of The'Public Service Act: or
(b) who has completed a minimum of five (5) years of continuous service and who ceases to be an
employee for any reason other than,
(i) dismissal for cause under section 22 of the
Act, or
(ii) abandonment of position under section 20 Of
the Act,
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is entitled to severance pay for continuous service
from and after the first day of April, 1978 equal to
one (1) week of salary for each year of service from
and after the first day of April,, 1978.
52.5 An employee on probationary staff, other than an
employee appointed prior,to January 1, 1979 is not
entitled to severance pay under sections 52.2, 52.3 or
52.4.
In addition reference was made ,in argument to'certain sections
of the Public Service Act, R.S.O. 1980 C. ,418 which provide as
follows:
6.-(l) When a vacancy exists in the classified
service, the deputy minister of the ministry in which
the vacancy exists shall nominate in .writing, from the
list of eligibles of the Commission a person to fill>
the vacancy.
(2) The Commission shall appoint the person
nominated under subsection (1) to a position on the
probationary staff of the classified service for not
more .than one year at a time. R.S.O. 1980, c. 418,
S.
6.
7. The Commission shall, if requested in
writing by the deputy minister, recommend to the Lieutenant Governor in Council the appointment of a
person on the probationary.staff of the classified
service to the regular staff of the classified
service, and the recommendation shall be accompanied
by the certificate of qualification and .assignment of
the Commission. R.S.O. 1980, c. 418, s. 7.
9. A. person'who is appointed to a position in
the'public~service for a specified period ceases to be a public servant at the expiration of that period.
R.S.O. 1980, c. 418, s. 9.
10.-(l) ~Every civil servant shall before any salary
is paid to him take and subscribe before,the Clerk. of
the Executive Council, his deputy minister, or a person designated in writing by either of them, an
oath of office and secrecy in the following form:
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I,..............., do swear that I will
faithfully discharge my duties as a civil servant
and will observe and comply with the laws of Canada and Ontario, and, except .as I may be
legally required, I will not disclose or give to
any person any,information or document that comes to my knowledge or possession by reason of my
being a civil servant.
So help me God.
(2) Every civil servant shall before performing
any duty as a member of the regular staff take and
subscribe before the Clerk of the Executive Council,
his deputy minister, or a person designated in writing by either of them, an oath of allegiance in the
following form:
I,..............., do swear that I will be
faithful and.bear true allegiance to Her Majesty
Queen Elizabeth the Second (or the reigning sovereign for the time being), her heirs and
successors according to law.
So help me God.
Counsel for the Employer raised a preliminary
objection to arbitrability on the basis that the grievance
raised no difference between the parties relating to the
interpretation, application, administration ,or contravention of
'the Collective Agreement. It was argued that the grievance on
its face does not raise any difference with respect to the
Grievor's entitlements, but rather simply alleges that the.fact
that he is not entitled to something under the Collective
Agreement is discriminatory'and unfair. Ms. Macintosh further ..~
argued, that whatever merit there might beg to the Grievor's
allegation, it is properly the subject-matter of Collective
Agreement negotiations or a request for amendment to the Public
Service Act. Those matters are clearly beyond the jurisdiction
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of this Board. In the alternative, Ms. Macintosh argued that,
even if we were prepared to,construe the grievance broadly
enough as raising a difference between the parties with respect
to the application of the Collective Agreement, the grievance
was premature with refere~nce to the Griever's request fora
declaration of entitlement to severance pay since he continued
to be employed and had not yet completed the necessary period of
service to have such an entitlement.
It was argued on behalf. of the Union that in substance
the Grievor had set out in the grievance.the statement of an
existing management position as to how the Collective Agreement
language would be applied, and it is his allegation that that
application is discriminatory and unfair and contrary to the
language of the Agreement. Mr. Sheppard further argued that
the Employer's interpretation was contrary to Section 4 of the
Human Rights Code, 1981. Stat. Ont. 1981 C. 53 and that on the
authority of Re Singh 240/79, a breach of the Code could be an
issue properly before'this Board. On the aspect 'of prematurity,
Mr. Sheppard pointed out that under Article 52.4 an employee
who had completed one year of continuous service had rights in
certain circumstances 'and 'there was a stated intention on the
part of the Employer to the effect that if the circumstances
envisaged in Article 52.4(a) should arise, the Grievor would
have no entitlement thereunder.
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With respect to the preliminary objection, we reserved
our decision and requested that the parties proceed. to argument
on the merits, rather ,than risk the eventuality that the Board
would have to reconvene and the parties would have to re-attend
to complete the matter. Having had the benefit of those
arguments we are of the view that the issue of arbitrability is
.,in reality inextricably interwoven with the argument on the
merits and that the two may properly be dealt with together.
The substance, of the Union argument is essentially
that the probationary staff referred to in the Public Servi.ce
Act is not what is envisaged in the reference to probation'ary
staff in Article 52.5 of the Collective Agreement. Both Counsel
agreed that the only other place within the Collective Agreement
where the concept of a probationary period-was referred to was
in Section 25.1 which provides that an employee's length of
continuous service will accumulate upon completion of a
probationary period of not more than one year. It was argued
for the Union that, when Article 52.5 talks of probationary
staff, it, is referring to "probationary' as defined in Article
25.1 and that by definition that is a period ~of not more than
one year. It was therefore argued that as of.January 26,.1979,
the Grievor had completed that probationary period and Article
52.5 could not be applied to him. Mr. Sheppard pointed out
that there was no specific reference to the Public Service Act
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in either Article 25.1 or 52.5 as there was in numerous other
sections where it was intended that the provisions of the Public
Service Act apply and that therefore there was no basis of
imputing the Public .Service Act concept into the Co.llective
Agreement.
Reference was made to Re OPSEU Union Grievance 270/82
wherein a panel of this Board chaired by Mr. E.B. Jolliffe,
Q.C. considered the effect of Section 25.1. In that award at
page 19 Mr. Jolliffe characterized Article 25 as being in the
nature of a definition clause. It was Mr. Sheppard's assertion
that it was a definition clause for the purpose of defining the
intended meaning of 'probationary period.' On that Point,
Counsel 'for the Employer argued before us specifically that the
words in Article 25.1 did not constitute a definition of the
word 'probationary,' but rather that they were a definition of
what continuous service meant. The,decision of Mr. Jolliffe
specifically confirms the Employer's argument in that regard in
that his decision on page 19 holds that Article 25 states the
meaning to be ascribed to the term 'continuous service! or
.'~length of continuous service'.
1.t was the Union's alternative argument that the
requirements of the Public Service Act with respect to the
taking of the Oath of Allegiance are in conflict with Sections 3
and 4 of the Human Rights Code and that, in substance, the
Grievor was being denied a right to contract with the Employer
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on equal terms with other employees and was being discriminated
against because of his citizenship. Finally, Mr. Sheppard
argued that there was no basis to consider the definitions
contained in the Public Service Act as somehow modifying the
contents of the Collective Agreement. In his view, there was no
necessary reason why the probationary staff under the Act had to
be the same and equivalent to the period of probation under the
Collective Agreement. He pointed out that in Section 6(2) of
the Act, reference was made to 'one year at a time' whereas no
'such reference was contained in Article 25.1 of the Collective
Agreement. Therefore, whiles the Act may have envisaged
consecutive periods of probation, the Collective Agreement did*
not.
It was the arguments of Counsel for the tImployer,'with
which we agree, that in the publi c sector, the Collectives
Agreement, the Crown Employees Collective Bargaining Act and the
Public Service Act must all be read in conjunction with,each
other in determining the overalls employment relationship. The
scheme of the Act is that there are two categories of staff in
the classified service, the probationary and the regular. When
an employee first comes to the classified service, it is as
probationary staff under the provisions of Section 6(2), and the
appointment is fork not more. than one year at a time. The
appointment period can be less than one year and; at the end,
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there can be, a further appointment to probationary staff for a
further period. A person moves to the regular staff in
accordance with the provisions of Sections 7 on request from the
Deputy Minister. A precondition of performing any duty as a
member of the regular staff is then set out in Section IO(2).
It is agreed in the Statement of Fact that the Grievor is not on
the regular staff and therefore, in the Act, he is on the
probationary staff: and, in the context of this Collective
Agreement, the probationary staff referred to in Article 52.5 is
one and the same as. the probationary staff referred to in
Section 6(2) of 'the Act. This situation is implicitly
recognized in other sections of the Collective Agreement: and
the effect of Article 25.1 is simply that, during the first year
of probation, an employee does not accumulate seniority.
However, in the second and
appointment under the Act,
acctiulate continuous serv
subsequent years of probationary
the employee may commence to
ice and an entitlement to various
benefits under the Collective Agreement with respect to play-off,
bumping rights, job competition, vacations and other matters
that~ depend, not on any aspect of probationary status or
probationary staff, but rather are measured on the basis of
continuous service. By reason of Section 52.5, however,
termination payments are specifically dealt with in a different
manner based on the status under the Public Service Act as
opposed to the period of continuous service. It is our view
that the foregoing outlines the correct interpretation of the
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Collective Agreement provisions being considered and in
particular the meaning of 'probationary staff' within ,
Article 52.5. In those circumstances, therefore, and on the
Agreed Statement of Fact, the Grievor can have no entitlement
under Article 52.4: We would also note that in Article 52.4 the
parties have used the words "probationary staff", the exact
words used in the Public Service Act, whereas in Article 2.6 the
reference is.to a "probationary period."
With respect to the Union argument relating to the
Human Rights Code, Counsel -for the Employer argued that the
situation would come within the specific exceptions to 'the Cod<
contained in Section 15 and further that under Article 46, the
Act would not over-ride the provisions of other legislative ,
enactments until a period of two years had passed after the Code
came into force. Whatever merit there may be with respect to
any argument of conflict as between the provisions of the Human
Rights Code and the provisions of the PublicService Act and in
particular Section 10 thereof, it is our view that they are
beyond the scope of our jurisdiction. In the Singh decision
referred to by Counsel for the Union, the issue related to
particular.disciplinary conduct on the part of the Employer
which was alleged by the Union to be in contravention of the
Code. That decision did hold that it was within the
jurisdiction of this Board to interpret and apply legislation
.- such as the‘Human Rights Code in evatuating the nature of
certain particular disciplinary action taken by the Employer.
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On this arbitration, there is no particular conduct on the part
of the Employer that comes within the ambit of the Collective
Agreement which is being impugned or challenged by the Union.
Rather, the Grievor challenges a particular statutory provision
and the Employer's position thatthere must be compliance with
" that provision before there will be an appointment to the
regular staff. There is no question that at the present time
the Griever does not, in. fact, possess the status of regular
staff and we think that it is clear under the Collective
Agreement that in the absence of that' status, the Grievor has no
potential entitlement to the benefits for which he requests a
declaration of entitlement. In our view, for that reason also,
the grievance.must be dismissed.
DATED at Toronto, this 20th day of January, 1983.
I R.L. Iiennedy Vice Chairman
"1 dissent" (see attached)
p. Warrlan Member
F.T. Collict llember~
6:1100 . 4:2230
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Dissent
I have reviewed the award of the majority in this matter and must
respectfully dissent.
The reasoning for dismissal of the grievance appears at page 11
wherein it is stated "... that in the public sector, the Collective
Agreement, the Crown Employees Collective Bargaining Act and the
Public Service Act must all be read in conjunction with one another
in determining the overall employment relationship." As a general
proposition, I can agree with this statement. One exception, however,
to the application of this rule is where the parties have freely
negotiated mutually acceptable terms within a collective agreement
and there is no necessary contradiction between such terms and the
explicit provisions of a statute. Such is the case at hand.
In Article 25.1, the Parties have negotiated a probationary clause
providing for a probationary period of one year's service. At no
othe'r place in the collective agreement have they defined probation,
therefore I beli,eve that the Parties can be reasonably taken to have
provided this definitional term for application in the collective
agreement. It was to a similarconclusion that Mr. Jolliffe came
at page 1,9 of OGSB 270/52. I believe,that view was correct and the
Board ought to apply its interpretations consistently. d
What then are we to make of the reference to "probationary staff"
subject to exclusion in Article 52.5? In my view, this clause is
clearly not definitional,,because it gives no terms for a definition
~to rely on. Therefore we should rely on the definition given in
the collective agreement'by the Parties themselves i.e. in Article
25.1. If they had intended to look outside for ~another or different
definition, .they would have instructed us where to look, as they have
done 52.2, 52.3, 52.4 which explicitly refer to the Public Servant
Act, The Public Service Act and the Public Service Superannuation
Act. However, here they have not done so, therefore we should stay
.' within the collective agreement.
On that basis, an employee would.come into entitlement to
Termination-Payments after completing one year of continuous service,
notwithstanding the fact that such an employee may continue to be
deemed a "probationer" for other purposes under the Public Service Act.
The grievor clearly falls within this requirement and I would so award.
Finally, if the position of the Employer is pursued, we would go outside
the collective agreement and, based on section 6.2.of the Public
Service Act, in effect give the Employer the ability to perpetually
place employees on probation and deny the right to this contractual
benefit. This cannot reasonably be taken to have been the intent of
the Parties in negotiating section 52 of the collective agreement.
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At page 12, the majority award states, in~respect of article 25.1,
that 'I . . . in the second and,subsequent years of probationary
appointment under the Act, the employee may commence to accumulate
service and an entitlement to various benefits . ..' In my view,
this is simply an error. Such an interpretation patently does not
flow from the Act, it clearly flows from the collective agreement.
Further on paga2, it is stated that "By reason of Section 52.5
however, termination payments are specifically dealt ,with in
a different manner based on the status under the Public Service
Act as opposed to the period of continuous service". No where
in 52.5 is'there any such reference to the statute, as there is
in articles 52.2, 52.3 and 52.4. Therefore, I would rely on the
definition in 25.1 and on that basis award the grievance.
P. Warrian