HomeMy WebLinkAbout1985-1182.Mousseau.86-12-26Jclliffc-, f:.C. r. 3.
t:. ~.'SlS!? :
f. .4. Feckha.:
K. Farson, Counsel
'Cornish and Associates
szrristers and Sol i cl t.0::
J. F. Benec‘ict,
.?aager,
rteff Relations 6 Conp%xs:ion
Ridstry of CorrectionaL Services
?.JZ;:l 4, 29Ei~
. -2-
DECISION
The grievor, Ms. Beth Mousseau, has grieved against the
employer’s failure to renew her appointment as a Correctional
Officer 1, Khich she characterized as an “unjust dismissal.”
on bet.alf 0: the employer, Kr. Benedict has submitted
that by reason of Section 9 ifi the Public Service Act, there was
. no oismissa? and ttae Board lacks jurisdiction to upt.old th;c-
grievance or grant any remedy. HeB tendered on consent an agreed
statement of the facts together with a series of documents
settinS our the employment history of the .grievor. .Following is
the text cf tha statement:
1. The grievor was a public servant appointed to the
unclassifie5 service in accordance with section 8 of the
P&lic. Service Act. -.
2. By a series of contracts dating from Septemhr 19, 1977, the
grievor was employed on a part-time basis as a correctibnal
officer at the North Bay Jail. The last such contract
expired on November 15, 1985. Copies of the contracts are
attached hereto as Exhibit “A”.
3. On November 5, 1985, the griever was advised by Mr. KS.
!Xan, superintendent of North Bay Jail, that her appointment
would not be renewed. Mr. Doan gave the grievor three
reasons for that decision:
19;
she was allergic to paint:
she had a heart condition: and
(c) she was no: sufficiently available, for w&k.
4. ?he grievor’s appointment to the unclassifiej staff was not
rene;rk an3 she did not perform work for the employer after h’ovenkr 15, 1985.
e
c
;j, :, h”
- 3 -
5. The employer continued to employ unclassified employees it
th? Norris Ray Jail after November 15, 19S5 on the same basis
as it had txfore.
6. The grievor filed a grievance on November 6, 1985 and
attached hereto as Exhibit “B”.
The griever’s employment history as shown by the
documer,ts attached to the statement, may be summarized a:
folloxs.
Tt.e griever was first appointed to the Unclassified
Service as a C.O.l at the Korth Bay Jail for the period from.
September 19, 1957, to March 31, 1976, but it was stated tbnat her
hours of gork were not to eXceed 24 per week, whi.ch could be
extended “in emergency’only” to a ma,ximum, of 40 hours per week.
The first appointment was renewed annually on a similar
basis effective a: the following dates: the first day of April in
19i6, 1979, 1980, 19’El, 1982, 1983, 1984 and 1985. All were for
one year and all were in the form of a contract, signed by the
grievor and the Superintendent, Acting Superintendent or Deputy
Superintendent of the Jail.
Although the last one-year agreement --- effective April
1, 1985 --- was signed on March 19, 1985, and was stated to
expire March 31, 1986, it is clear that the grievor agreed to an
importcnt amendment. On June 18, 1985, she signed a new
“Appointment” wkjich was markedly different ‘from a!1 its
predecessors in two crucial respects: her nprmal hours were “not
to exceed 40 per week” and the “Expiry Date” was stated to be
November 15, 1985. A special note also said *‘Authorized hours of
work as required up to 40 hours per week.” Thus there Gas a
certain ambiguity as to whether she was being re-appointed as a
40-hour fu?: time errployet. There could be no ambiguity,
however, about the expiry‘date of the appointment --- tiovember
15,~ 1985, moreover, the effective date of the appointment was
said co be I:ay 15, 1985 --- six weeks after the previous one-year
appointment. If she had not agreed to the new appointment, it is
apparent that the previous .appoi’ntment --- on a 24-hour basis ---
would have continued to Xarch 31, 1986.
It is common g~round that the grievor was at all times a
“public servant” but ‘not a “civil servant” as those terms sre
defined in section l(a) and (g) of the Public Service Act.
Nevertheless, as Ms. Farson pointeb out, such employees are
entitled to certain rights provided by Article 3 of the
collective agreement between Kanagement Board of Csbipet and the
Ontario Public Service Employees Union, including the right to
grieve under Article 27 of that agreement.
On his part, Kr. Benedict relies on Sections 8 and 9 of
the~Public Service Act, which are as follows:
.-
- 5 -
8. (1) A minister or any public’ servants who is designated in
writing for the purpose by him may appoint for a period of
not more than one year on the first appointment and for any
. perioj or any subsequent appointment a person to a position
in the unclassified service in any Elinistry over which he
presides.
(2) ;A)’ appintment made by a designee under subsection (1)
shall be deemed to have been made by his minister. R.S.G.
1952, c. ZlL, s.8.
9. A persor. vho is apsinted to a position in tha public service
fo r a specified period ceases to be a public servant at the exjirs:ior, cf trmt period. R.S.O. 1985, c. 416, s.9.
fir-. Renedict pointed out that the grievor had signed a!1
the contracts referred to above, including the last contract,
vhich k’as express! y stated to expire on November 15, 1985. He
said the result corresponded exactly with what was said by former
Chairman George K. Adams at page 3 of the decision in m
173/79:
It is our opinion that the grievor’s employment “ceased” by
operation of section 9 of the Public Service Act and b)
virtue cf this section and the terms of his appointment, it
cannot b said thit he was “dismissed” within the meaning of
s.15(21 of the Cro+?l kloyees Collective Earoainino Act. --
As the parties have provided, the only portion of the
collective agreement that applies to employees who are not
civil servants is Article 3. Thus, the parties were fully aware of this pxticular interrelationship between the Public
Service Act and the Crown Employees Collective’Earaaininz
Act. Tne-ievance isissed.
The 6ond decision was endorsed by Vice-Chairm,an Swan in
Johnson and Szpskowski 72/76, together with the suggestion th2.t -
I’. ;.* ,, - 6 -
tte Union. could not succeed in such cases vithcxt an amendment to
the collective agreement.
NS. Farson, representing the grievor, emphasized the
distinction established in Boucher and Trumbley 218/7E ---w-m --- -------
(Prichard!. Jr that case the Board recognized a difference
between a “dismissal for cause” and a “termination.” The former
wars. adjudicable urder Article 27of the Collective Agreement an5
Section I& hOw Section 19) Of the Crown Employees cOl~.ective
Barga$ning, Act, but a termination lacking any disciplinary
element was no’t. She submitted the grievor was entitled at least
to a beer in; for the purpose of determining the motivation of the
employer in refL!elny .to renew her contract.
E: s . Farson also referred to the reasons given bp the
employer (qu~oted above in the.Agreed Statement of Facts) in the
following words:
(2
(5
(C
1 she was allergic to paint;
1 stie hat a heart condition; and
) she was not sufficiently available for work.
*
Counsel submitted that the reasons given established a
“dismissal for cause” and were contrary to the provisions of
Section 4 and Section 5 (as amended) in the Human Rights Code, an
Ontaric Statu:e. Sec:ion 4(l) is as follok~s:
J
‘:
.“. .’ ;
-7-
4. (1) Every person has a right to equal treatment with respect
to employment h,ithout discrimination because of race,
ancestry, place of origin, colour, ethnic origin,
citizenship, creed, sex, age, record of offences, marital
stats.s, family status or handicap.
TAbie words
“because of... handicap” are defined in
Sect.ion 5(bl:
9. (5) “because of handicap” means for the !eason that the
person, t,as cr has had, or is believe? to have or have ha5,
(i) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily i :: j :’ ye . , tirt?. defect or illness and, withost limiting the
ge.3era.l i r;’ ci the foregoing, including diabetes mellitus, eoi?e;Isy, any degree of paralysis, amputation, lack of
ph~eiisa! co-ordination, blindness or visual impediment,
aeafness or hearing impediment, muteness or speech
im?esiment, or physical reliance on a 603 guide or on a
wheelchair or other remedial appliance or device.
In his re?ly Y.r. Benedict conceded ‘that the decisicn in
Boucher ane Trur.h!ev was correct and has never been disapproved. -
This did not mean, however, that a term employee had any rigr‘t to
a remedy unless dismissed for disciplinary reasons. An
unclassified en,ployee, he concluded,is employed for a fixed
period of time and has no right to a renewal beyond the expir)
date.of his or her contract, and no reasons were necessary for a
failure to rene’;. A classified employee, on the other hand,
could expect p*rm,anerLt employment.
- 8 -
In giving reasons for thi? decision, it is first
necessary to point out that the use of “seasonal or part-time
employees” (otherwise known as “the unclassified service”) was
contemplated by the parties when they included Article 3 in their
collective agreement. It provides, among other things, that
Article 27 of tF,e agreement applies to.em?loyees “who are no:
civil servants” --- i.e. unclassified public servants --- thas’
giving them access to the grievance procedure. It is also
provided by.3.11 that such employees “may be terminated by the
I .’
Employer at any time with one (1) week’s notice, or pay in lieu
thereof .I’ It is clear that they have rights, but not the same
right as civil servants in the classified service.
If the parties are correct in relying on Boncher and -
Trumblr-‘: --- --- as both of them do, --- the Board cannot assume
jurisdiction to decide the case on its merits or provide a remed}
unless it has been shown that the failure to renew Ks.
Nousseau’s contract was in effect a “dismissal for,cause” rather
than a mere termination. The Employer contends that it was the
latter an3 the Board lacks jurisdiction. The Union’s submission
is that the reasons given by the Employer in 1985 demonstrate a
dismissal from employment “without just cause” ---.the words used
in section 1&(2)(c) of the Crown Employees Collective Bargaining
Act.
c ‘;
f. . . .,
- 9 -
i _
We must say first that there is no evidence wztatrver
that the grievor had a disciplinary record. Moreover, the
Employer gave no reasons which would meri! discipline. The
reasons given relate solely to disabilities for which nc blame,
could be attached to the Grievor since the)’ are Ob\‘iOusly be)80:.d
her control.
It is not always understood that the words “dismissal
for cause” ant “dismissal without just cause” carry a seecific
conno:atioa. They are correctly used in relation to dismissals
resulting from alleged offences or misconduct on the part of the
employee; in other vords, voluntary malfeasance. This arises
when it is charged that the employee has done something he ought
not .to have done, or failed to do something he ought to have
done. If a serious offencr is proved it mey,result in “dismissal
for cause“ -:- i.e. because the employee is blameworthy.
. On the other hand, there may be terminations resultinc .-
from circumstances for which the employee is not to blame. A
simple exan;Ple is tr,at of a lay-off due’to budgetary restraint or
the “discontinuance of, a function.” Further, an employee
stricken by a heart-attack or paralysis is not blameworthy and
certainly does not merit discipline, but may have become
incapable of continuing in employment --- a possibility envisaged
by the Long Term Income Protection Plan in Article 41 of the
agreement between these parties.
: ‘: -7 . - 10 -
If the grievor had the disabilities attributed to her by
the Superintendent of the North Bay Jail , such disabilities are
remote from any element of misconduct on her part. It would be
absurd to characterize them as grounds for a disciplinary
dismissal. h’e cannot agree with the ,argument that the reasons
give5 were personal to her, thereby giving rises to a “dismissal
witb,out just cause.”
lie leave been asked to find that the Employer’s decision
was discriminatory and contrary to the requirements of the Human
Rights Code. The responsibility for administration,
interpretation’ and enforcement of the Code is vested in another
body, not in this Board. To interpret section 4 of the Code. in
relation tc the circumstances here would be a difficult
undertaking and it is not one we should attempt. If we were
obliged to do so, .the fi rst qu’estidn to arise would be whether
any “treatment” at all was given Ms. Mousseau in failing to renew
a contract she had previously agreed would expire own a certain
date, liove.7Aer 15, 1955.
If a .case such as this becomes arbitrable under Section
19 of the Crown Employees Collective Bargaining Act, two
consequences would seem to follow. Section 9 of the Public
Service Act sould become a dead letter, removing almost
completel; the distinction between the classified and the
: ‘c ; 7 3
unclassified service and depriving the Employer of ti-,e capacity
. to recruit ‘personnel required temporarily but not permanently.
Secondly, this Board would be called upon ,to adjudicate on the
merits of terminations having no disciplinary element whatever, a
function we do not think was contemplated by Sections 16 and 19
of the Crovn Employees Collective Bargaining Act.
For tr,,c reasons aforesaid this grievance mus
dismissed.
t bi
Dated at Rnckwe~tid this
26th.day of December, 3966
“I Dissent” (see attached)
G. h. Peckham
EBJ:sol
1 have now had an opportunity to review the majority award
in this rr.atter and find that I cannot agree with it.
Tt,i er;!oyer has argued that we do not have jurisdicticn tc
hesr the rer;:s c: ti.is case because it is a si:uacion in xhich the
cr,ployer hit ?ECiC‘ii not to renew a cor.tract, and our jurisdiction is
linited to “diszissal situations” under section 18(2)(c) of the Crown
Ecrlc~ees :o! 1e::ive 6areaininp Act. The erployer argues that the expiry
?
of h cc~tzc: cari ne\‘tr be a dismissa1. I cannc.: accept chat this bis-
tincrion allwrs the errployer to end the employrrrnt relationship for
reasons thit co’nstirute bad faith, arbitrariness or discrimination.
The evidr:.ce it. tk.e rr.ployer’s preliminary objection consisted of an
a:ree? s:z:ex~.t o! facts which scated as follows:
or. Nover?cr 5, 1485, the grievcr,uas advised by
Err. P.S. Loan, Superintendent of Korrh Bay Jail, that
her a;iointr.ez: would not be renewed. Hr. Doan gave
the griever three reasons for chat decisicn:
(-‘ (;:: she was allergic to paint;
5t.c b,ii 6 heart condition; and
CC: ski xas not sufficiently available for work..
The employer argued that this was lawful behaviour because
the empioyer’s contract had expired and section 9 of the Public Servi:e
Act accorded the err.ployee no protection fro? dismissal in those cir- -
c”cs:ance~. i d: ~CIL accept char in passing this section, the Legislature
intendi? tha: :F,t Govrrnaer~: a6 employer would tc perr,it:ed to practice-
discrir;:ir,ir:cr. i:. ti.i uoclarsified service pr.ci,idcc! its decisions :oc!:
,’ ?
.< ,
;:
,‘. -..i
effect on the rxpiry dare of the employee’s contract. Section 4 was
intended to acknowledge the employer’s.speciaI organizational and complement
needs and to recognize fluctuations in personnel requirements. It was not
intended to exempt the employer from its duty to exercise its management
rights without arbitrariness, discrimination or bad faith.
In the absence cf other evidence, a management decision based
on physical handicipr of an employee, char is, an allergf’and a heart condi-
tier., is discrim:na:ory.
I am of the view that where an employer ends its employmen:
relationship with an employee for discrinina:o:y reasons, Its actions
must be characterized as a dismissal that Gould be reviewable by this
Eorrd.
If, after 6 hearing or. the merits, this Board found that a
discriminatory dismissal had taken place. but concluded chat it had
no power to re-appoint.the employee because her contract had expired,
the Board would then have to redress the wrong with another remedy.
There is no bar to a remedy in gamages.
In conclusion, this member finds chat the circumstances surrounding
the ent of Ms. E:eusseau’s employment amounted to a dismissal and that the
Bqard therefore had jurisdiction co hear the matter.
Respectfully submitted,