HomeMy WebLinkAbout1982-0531.Miller and MacPhail.87-03-02531182 4 532182
IN THE MATTER OF AN ARBITRATION
- Under -
THE CROW?4 EMF’LOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Brian Miller and Clair MacPhail)
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Grievers
R.L. Veritv. Q.C., Vice-Chairman
Employer
L. Robbins; .Membe;
W.A. Lobraico, Member
FOR THE GRIEVORS: C.G. Paliare, Esq.
Cowling and Henderson
Barristers and Solicitors
FOR THE EHPLOYER: L. McIntosh
Barrister and Solicitor
Crown Law Off’ice, Civil
Ministry of the Attorney General
NEARING DATE: July~ 16, 1986
SUPPLERENTARY DECISION
On April 7, 1983, this panel of the Board issued a Decision
which characterized the termination of employment of Messrs. Miller and
MacPhail as. dismissals without just cause and not bona fide releases,
as alleged. A majority of the Board then went on to find that the
provisions of Article 3.,ll,of the Collective Agreement limited the
fashioning of a remedy.
The matter proceeded to Judicial Review on the issue of
remedy. The Ontario Divisional Court quashed the Board's remedial
finding in a unanimous Decision dated March 21, 1984. Mr.,Justice
Craig gave the following reasons:
"The Collective Agreement distinguishes clearly
between 'dismissal' and 'termination' (see Art.
3.11 and Art. 27.6.2).
In addition the Act (Crown Employees Collective
Bargaining Act) provides for grievance in the event
of dismissal (Section .18(2
disputes by the Grievance
19(l)).
Employment was terminated
found as a fact thattermi
without cause.
) and Arbitrationof
Settlement Board (S:
by Notice and the Board
nation was a dismissal
The Board then came to the question of 'remedy' and
held that Art. 3.11 prevented it from re-instating
the Grievors and also from making an award forlost
wages -
In our opinion the Board gave Art. 3.11 an interpretation which is patently unreasonable (the
highest possible test) in so~doing that is in the
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light of Art. 27.6.2 of the Collective Agreement
and Sections 18(2) and 19(l) of the Act.
It is our
view that the Board was not limited to a remedy of
one week's pay or one week's notice by Art. 3.11.
Also, it is our opinion that, in holding that it
could not fashion a remedy beyond Art. 3.11, the
Board impliedly erred in 'j'urisdiction pursuant to
the Act. That is, the Act clearly provides for
discretion to fashion a remedy for the applicants
in the circumstances.
The Board recognized the distinction between
'dismissal' and 'termination' in finding dismissal
without cause, but when it turned its attention to
remedy, it indicated that termination included
dismissal. We would add th.at the Board cannot
amend the Collective Agreement (Art. 27.12)
The Application is therefore allowed; the Award
herein is set aside and the matter is remitted to
the Board to be dealt with according 'to law. costs
to the Applicant."
On February 18, 1986, the Ontario Court of Appe'al dismissed
an appeal from the Judgment of the Ontario Divisional Court.
This Board is now called upon to fashion an appropriate ,... ~.~ ~~.
remedy. In that determination, the following facts are relevant by
of background information. Brian Miller and Clair MacPhail were public
servants appointed to the unclassified service in accordance with then
provisions of S. 8 of the Public Service Act, R.S.O. 1980, c. 418;
under a series of term appointments. These employees were part-time
employees as contemplated by Article. 3 of the Collective Agreement.
Both Miller and MacPhail were appointed to the position of Correctional
Officer 1 at the Cornwall Jail. Miller was.first appointed under a
term appointment which commenced Cctober 24, 1977. MacPhail's initial
r I~‘j\cl. t:. 7
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term appointment dates back to November 20, 1978. Each Grievor
continued to be employed under a series of term appointments. The
final appointments, as the facts established, were for the period April
1, 1982 to March 31; 1983.
On August 12, 1982, Cornwall ~Jail,,,;Superintendent Richard
Dagenais terminated both contracts of employment apparently for the .
sole reason of unavailability of either Grievor to work when
requested. At the Hearing, Superintendent Dagenais testified that
between January and July 1982, Brian Miller had worked an average of
only one shift per month. Similarly, during the same time frame Clair
MacPhail worked an average of only two shrifts per month. -
The Board makes no attempt to repeat the able arguments
presented by Counsel, except in summary form.
On behalf of the Grievors, Mr. Paliare advanced several novel
arguments in support cf the contention that, in the absence of culpable
conduct, the Grievors were entitled to the normal remedial award -
namely, reinstatement with full compensation for lost wages and
benefits. In addition, he requested interest. Mr. Paliare contended
that following the enactment of.the Crown Employees Collective
Bargaining Act, an exclusive bargaining relationship was established
between the Employer and the Union under which individual contracts of
employment were null and voids. In support of that argument, Mr.
Paliare submitted a series of cases based on the rationale of Chief-
Justice Laskin in McGavin Toastmaster Ltd. v. Ainscough et al. (1975)
54 D.L.R. (3d) 1. Mr. Paliare argued that with the enactment of the
Crown Employees Collective Bargaining Act a complete code or regime was
established for regulating employer-employee relationships for all
employees covered by that Act. To/that proposition, he acknowledged
one exception.- namely, at the hiring stage an Employer had the
unfettered right to hire under either the classified or unclassified
service. Once hired, the terms and conditions of employment for those
employees were regulated by the combined effect of the Collective
Agreement and the Crown Employees Collective Bargaining Act.
Alternat~ively, he argued that if it were possible to have individual
contracts of employment, it had to be on matters not covered by the
Collective Agreement. .Mr. Paliare contended ~that any conflict or
inconsistency between the Public Service Act and the Crown Employees
Collective Bargaining Act must be resolved in favour of the latter Act
as a general rule of statutory construction.. In these circumstances,
he argued that' there was no inconsistency between the two Acts.
Specifically, Mr. Paliare contended that Section 9 of the Public
Service Act did not apply to employees governed by the Crown Employees
Collective Bargaining Act. _.
On behalf of the Employer, Ms. McIntosh acknowledged that the
Board had jurisdiction to compensate Miller and MacPhail for the
remainder of their term appointments. In suppo.rt, she placed heavy
reliance upon the provisions of ss. 8 and 9 of the Public Service Act.
Ms. McIntosh contended' that fol lowing the exp iration of a term ~_:.
,, .’
-6 -
appointment, the Board had no jurisdiction to make an appointment to
the public service by way of remedial relief. In sum, her position
that the Board was without jurisdiction to revive a term appointment.
Ms. McIntosh contended that the Ontario Divisional Court
established the principle in Re Attorney-General for Ontario and
Keeling et al. (1980), 20 0.~. (2d) 662, that the substantive right
to be dismissed except for- just cause arises only from s. 18(2) of the
Crown Employees Collective Bargaining Act and not from the Collective
Agreement. Accordingly, she contended that the notion of individual
contracts was irrelevant because the employment limitation arose from
the Public Service Act in the right, con,tained in s. 9, to limit term
appointments. MS; McIntosh'argued that there was no inconsistency in
the provisions of the Public Service Act and the Crown Employee.5
Collective Bargaining Act.
Clearly, the Employer has the exclusive right of appointment
under' s. 18(l) of the Crown Employees Collective Bargaining Act. The
statutory authority for appointment to the unclassified service arises
from s; 8 of the Public Service Act. Authority for appointments to
classified service arises from ss. 6 and 7 of that. Act.
The Judgment of Chief Justice Laskin in McGavin Toastmaster
stands for the proposition that there is little, if any, room for
individual contracts of employment once there is a-collective
bargaining regime in place. Ms. McIntosh does not dispute that
:3
I.
-7 -
proposition.
In our opinion, any limitation of employment of these
Grievors arises under ss, 8 and 9 of the Public Service Act and not
from individual contracts of employment that may have been and were
negotiated in this case by the Employer. Accordingly, we would agree
with the Employer's argument that the notion of individual contracts
irrelevant because of.the statutory limitation.
The Board cannot find that s. 9 of the Public Service Act
inconsistent with any provision of the Crown Employees Collective
Bargaining Act or the Collective Agreement. In summary, there is
simply no provision in either the Crown Employees Collective Bargaining
Act or the Collective Agreement which states or implies that -
appointments to the unclassified service cannot be by way of
appointments for specified periods. In our opinion, the,Union's
contention that, once a collective bargaining regime is established
there is no limitation in the term of appointment for uncla.ssified
employees governed by the Crown Employees Collective, Bargaining Act,
contrary to the provisions of c.: 9 of the Publ-ic Service Act. In
addition, we note that the Public Service Act has been amended from
time to time to conform with the provisions of the Crown Employees
Collective Bargaining Act.
Despite the attractiveness of the Union's arguments, we
cannot agree that, within the framework of the.-legislation, there is
_
room for individual contracts of employment for unclassified
employees. Similarly, we are unable to agree that s. 9 of the Public
Service Act is not applicable to employees who fall within Article 3
the Crown Employees Collective Bargaining Act. Numerous Decisions of
the Grievance Settlement Board have established that there is an
interrelationship between the Collective Agreement, the Crown Employees
Collective Bargaining Act and the Public Service Act - a relationship
that is well known to the Parties. See, for example, Johnson and I
Szpakowski, 72/76 (Swan); Bond, 173/78 (Adams); Skalesky, 429/81
(Draper); O’Hara, 1596/84 (Verity); Simpson, 694/85 (Kennedy); and
Mousseau, 1182/85 (Jolliffe).
Chairman Adams commented on that relationship in the Bond
Decision, referred to above, at p. 3:
“As the parties have provided, the only portion of
the col-lective agreement that applies to employees
who are not civil servants is Article 3. Thus, the
parties were fully aware of this particular
interrelationship between the Public Service Act
and the Crown Employees Collective Bargaining
Act...” -
Vice-Chairman Swan extended that rationale in Johnson and
Szpakowski at pp. 3, 4 and 5:
“This is another in a series of cases by which the ’
interaction of the Public Service Act, R.S.O. 1970,
c. 386,~:.as amended, the Crown.Employees Collective
Bargaining Act, R.S.O. 1972, c.. 67, as amended and
the Working Conditions Collective Agreement binding
the parties at the relevant time (in this case the 1976 agreement) falls to be determined:
Specifically, sections 8 and 9 of the Public
Service Act are here at issue....
. . ..The main argument advanced by the Union is that
an appointment for a specified term under s. 8 of
the Public Service Act is contrary to the spirit of
the applicable collective agreement, and that, at
least-after the first appointment (which is limited
to terms of one year or less) the Employer should
be found to.have agreed to make further
appointments subject only to dismissal for just
cause or termination otherwise in accordance with
the collective agreement.
To expand sl~ightly eon the Bond decision, it isour
view that, for,the Union successfully to alter the
impact of ss. 8 and 9 of the Public Service Act, it
would need to negotiate express provisions in the
collective agreement requiring such appointments to
be entirely on the same basis as appointments to
~the classified service. Even in private sector
labour relations, agreements are generally
considered to be negotiated in the context of an
ordered statutory framework. Here, the Public
Service Act is part of that framework."
With respect,. we do not accept Mr. Paliare's contention that
Vice-Chairman Swan's 'rationale is incorrect. To accept the Union's
arguments in this case would cast serious doubt as to the validity of
numerous previous Decisions of the Grievance Settlement Board.
It is useful to set out the relevant provisions of the
Collective Agreement within the legislative framework of the Public
Service Act and the Crown Employees Collective Bargaining Act.
Certain provisions of the Public Service Act, R.S.O. 1980,
c. 418 are to be considered in relation to this grievance:
- 10 -
1. In this Act,
(a)
(b
le
. . (g)
~(’ i 1
~6. -
‘civ.ii servant’ means a person appointed
to the service of the Crown by the
Lieutenant Governor in Council on the
certificate of the Commission or by the
Commission, and ‘civil service’ has a
corresponding meaning;
‘classified service’ means the part of the
public service to which civil servants are
appointed;
“Crown employee’ means a person employed
in the service of the Crown or any agency
of the Crown, but does not include an
employee of Ontario Rydro or the Ontario
Northland Transportation Commission; “.
‘public servant’ means a person appointed
under- this Act to the service of the Crown
by the Lieutenant Governor in Council, by
the Commission or by a minister, and
‘public service’ has a corresponding
meanings;
‘unclassified service’ means the part of 7~”
the public service that is composed of positions to which persons are appointed
by a minister under this Act. R.S.O.
1980, k. 418, s. 1.
(1) 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 ngt 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 oft the classified
- 11 -
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.
8. - (1) A minister or any public servant who
is designated in writing for the purpose of him may
appoint for a period of not more than one year on
the first appointment and for any period on any
subsequent.appointment a person to a positionin
the unclassified service in any Ministry over which
he presides. ., i_..
(2) ~,~ny appointment made by a designee
under subsection (1) shall be deemed to have been
made by his minister. R.S.O. 198O,.c. 418, s. 8.
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."
Reference may also be made to the Crown Employees Collective
Bargaining Act, R.S.O. 1980, c. 108 as follows:
1. - (1) In this Act,
(f) '.~employee' means a Crown employee as
defined in the Public Service Act but does
not include,
(i)-- ~a member of the Ontario Provincial
Police Force,
(ii) an employee of a college of applied
arts and technology,
(iii) a Person employed in a:managerial
or confidential capacity,
(iv) a person who is .a member of the'
architectural, dental, engineering, legal
or medical profession entitled to~practise
in Ontario and employed in a professional capacity,
- 12 i
(VI a student employed during the
student’s regular vacation period or on a
co-operative educational training program,
(vi) a person not ordinarily required to
work more than one-third of the normal period for persons performing similar work
except where the person works on a regular
and continuing basis.
(vii) a person engaged under contract in
a professional or other special .capacity,
or for a-project of a non-recurring kind,
or on a temporary work assignment arranged
by the Civil Service Commission in accordance with its program for ,providing
temporary help,
(viii) a person engaged and ,employed
outside Ontario, >L
(ixj a’ person employed in the office of
the Provincial Auditor, or.
(xj a person employed by or’ under the
Tribunal or the Grievance Settlement
Board ;
(ml ‘public servant’. means a public servant as
defined in the PublJc Service Act and ‘public service’ has a corresponding
meaning;
18 - (1 j Every collective agreement shall be
deemed to provide that it is the exclusive function
of the employer to manage,, which function, without
limiting the generality of the foregoing, includes
the right to determine,
(a) employment, appointment, complement,
organization, assignment, discipline,
dismissal, suspension, work methods and
procedures, kinds and locations of
equipment and clagsification of positions:
and
(bj merit ‘system, training and development,.
appraisal and superannuation, the governing principles of which are subject
to rev,iew by the employer width the
bargaining agent,
and such matters will not be the subject of
collective bargaining nor come within the
jurisdiction of a board.
” (2) In addition to any other rights of
grievanc~e under a collective agreement, an employee
claiming,
(a) that his position has been improperly
classified:
(bl that he has been appraised contrary to the
governing principles and standards:. .or
Cc) that he has been disciplined or dismissed
or suspended from his employment without
just cause,
may process such matter in accordance with the
grievance procedure provided in the collective
agreement; and failing final determination under
such procedure, the matter may be processed in
accordance with the procedure for final : determination applicable under section 19. R.S.O. 1980, c. 108, s. 18.”
19. - (1) Every collective agreement shall be
deemed to provide that in the event the parties are
unable to effect a settlement of any differences
between them arising from the interpretation, application, administration or alleged
contravention of the agreement, including any
question as to whether a matter is arbitrable, such
matter may be referred for arbitration to the
Grievance Settlement Board and the Board after
giving full opportunity to the parties to ‘present
their evidence and to make their submissions, shall
decide the .matter and its decision is final and binding upon the parties and the employees covered
by the agreement.”
In addition, reference should also be made to relevant parts
of .the Collective Agreement.
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"ARTICLE 1 - RECOGNITION
1.1 In accordance with The Crown Employees
Collective Bargaining Act, the Ontario
Public Service Employees Union is
recognized as the exclusive collective
bargaining agent for all public servants
other than persons who are not employees
within the meaning' of clause f
of subsection 1 of Section 1 of The Crown
Employees Collective Bargaining Act." L
"ARTICLE 3 - SEASONAL OR PART-TIME EMPLQYEES
3.1 The only terms of this Agreement that
apply t:o employees who are not civil
servants are those that are set out in
this Article. .~.
3.11 Employment may be terminated by the
Employer at any time with one (1) week's
notice, or pay in lieu thereof.
3 .,l 4 The following Articles shall also apply to
r9 seasonal or part-time employees: Articles
1, 9, 11, 12, 15, 16, 17, 2,l, 22, 23, 25,
27, 32, 36 and 57."
"ARTICLE 27 - GRIEVANCE PROCEDURE
27.6.2 Any employee other than a probationary
employee who is dismissed shall be
entitled to file a grievance at the second
.,
stage of the grievance procedure provided he does so within twenty (20) days of the
date of the dismissal."
Article 3 of the Collective Agreement applies to employees,
such as the Grievors, who are not civil servants.
The Grievors were public servants appointed to the
unclassified service pursuant to s. 8 of the Public Service Act. They
- 15 -
would have ceased to have been ~public servants at the expiration of
their appointments on March 31, 1983, pursuant to s. 9 of the Public
Service Act. In sum, but for the dismissals, the employment status of
Messrs. Miller and MacPhail would have ceased by operation of statute
on March 31, 1983,
in the absence of furtherappointments.
In this matter, the Union's strongest argument in support of
a meaningful remedy is the Board's all encompassing remedial
jurisdiction. Under s. 19(l) of the Crown Employees 'Collective
Bargaining Act, the Board has broad remedial authority to fashion an
appropriate remedy in all the circumstances. The Ontario Divisional
Court has adopted that position on several occasions.- In addition to
the Judgment of the Ontario Divisional Court in the instant Grievances,
C.-z. 6-r .2yi.r;z1Ff, the Judicial Review of Zuibrycki in Regina v Ont.?T-,r __.- .,... A.
Public Service Employees' Union et al (19b2), 35 O.R. (2d) 670.
Specifically, s. 19[‘1) of the Crown Employees Collective Bargaining Act
empowers the Board "to decide the matter and its decision is final and
binding upon the parties and the employees covered by this Agreement".
In the absence of just cause for dismissal, the usual remedy
is reinstatement with compensation for all lost wages and benefits.
The p&pose of this remedy, of course, is not tb penalize the Employer
for a bona fide mistake, but to place an innocent party in the same
position he or she would have been, in but for the Employer's action.
- 16 -
As noted above, the broad remedial powers of a Board of
Arbitration under s. 19 of the Crown Employeees Collective Bargaining
Act has been confirmed by the Courts. - In our opinion, the Board does
have the remedial authority to reinstate the Grievors with full
compensation. The question, however, is whether it would be
appropriate to do so in these circumstances. Clearly, our mandate is
remedial. In the exercise of that mandate, the Board's jurisdiction
under s. 19(l) is unrestricted. Support for that proposition is set
Out in the Ontario Divisional Court Judgment of Mr. Justice Reid ,
released March 13, 1986 in Ontario Public Service Employees Union and
Carol Berry et al and the Crown in Right of Ontario (Ministry of
Communitv and Social Services).. .~
The significant fact in this case is that there was no
evidence of any blameworthy conduct on the part of the Grievors. The
evidence disclosed that they were. terminated for the sole reason of
their lack of availability to attend at the workplace. -Superintendent
Dagenais acknowledged th;at he did not warn either Grievor that lack of
availability for work could lead to~termination of employment. There
was no evidence that either Grievor was warned'of the possible
consequences. On the evidence presented the Board characterized the
terminations as discharges withoutjust cause.
In the absence of such evidence, the Board cannot concludes b:,
-~ way of an assumption that Miller and MacPhail would not.have been
reappointed to the public service subsequent to the termination of
1
their appointments on March 31, 1983. Simply stated, there was no
evidence to that effect. In fact, the proposition that Miller and Y
MacPhail would not have been reappointed was not addressed in argument.
It would be improper for a Board-of Arbitration to deny the
Grievors full remedial redress by making assumptions which are not
based on the evidence adduced. -But for the dismissals, the Grievors
may well have been reappointed to the public service and subsequently
reappointed up to and including the present date. As indicated
previously, this is not a case where a term appointment has
allowed to expire in the absence of a further appointment.
Accordingly, the Board exercises its remedial'?uri
under s. 19(l) of the Crown Employees Collective Bargaining j
been
sdiction
Act in -
reinstating the Grievors to their positions as Correctional Officers 1
at the Cornwall Jail in the capacity of public servants in the
unclassified service for the remainder of the period to which they
would have been entitled, but for the dismissals. In addition, they
shall receive compensation from the date of their dismissals (August
72, 1982) to the date of reinstatement, together with interest
calculated in accordance with the formula determined in Hallowell House
Ltd. and Service Employees Int'l Union, Local 18'3 (1980), 1 0.L.R.b.
Rep.'35. Miller will be. compensated on the basis of one shift per
month and MacPhail on the basis of two shifts per month. The Board
shall.retain jurisdiction in the event df any difficulty in
implementing this Award.
t’l-I!: 1. IT .-
I.
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In fashioning.this remedy, the Board has attempted to devise
a meaningful and appropriate remedy in this prolonged matter. The
.appropriate remedy, we think, is to place the Grievors in the same
position as they would have been in, but for the Employer's actions.
Accordingly, this remedy will compensate them for the lost opportunity
to demonstrate suitability for reappointment.
DATED at Erantford, Ontario, this 2nd day of March, A.D.,
1987.
Richard L. Verity, Q.C. - Vice-Chairman
/ /-,
.” “see Addendum attache
L. Robbins- I---
W. A. Lobraico - Member
a
i :, ..~
<, :
IN THE HATTER OF THE ARBITRATION
BETWEEN: UINISTRP OF CORRECTIONAL SERVICES
- and -,
531/82 and 5?2/82
ONTARIO. PUBLIC SERVICE EMPLOYEES UNION
AND IN THE UATTER OF THE GRIEVANCES OF BRIAN MILLER b
CLAIR HACPHAIL
A DDENDUU
I have reviewed the Award of the Chairman in the.above
<loted matter. I concur with the remedy to the extent that the
two grievors are reinstated with full~compensation.
I do not agree however with the Chairman's analysis of
Sece~ions 8 h ,9 of the Public Service Act. :I would have found
that those sections are superceded and would not apply to
employees covered by the Crown Employees' Collective Bargaining
A&
- PAGE 2 -
It follows from that that I would not have added the
words "for the remainder of the period to which they would have
been entitled, but for the dismissals" to the remedy in this
case. That is, the grievors should simply have been.reinstated
with no limit to their subsequent employment. I understand that
C.~...~... ._c _.
the actual result is in keeping with the Chairman's conclusions
with respect to the application of the P.S.A.
HOWeVer, the larger issue is that the practice of
having employees continued on within the unclassified service
through a series of revolving door contracts year after year is
completely inappropriate to begin with. I agree with the Union's
view that these contracts should not be of any force and effect,
that the only contract is the collective agreement, and that
there -should be..seen to be one enduring employment relationship.
Bated at. Toronto, Ontario this 2nd day of March,
1987,.
Al .- .l of which is respectfully submitted,
LARRY ROBEINS
UNION NOMINEE