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HomeMy WebLinkAbout1985-1246.Cascagnette.86-09-02Between 1246185 IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING. ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Morris Cascagnette) - and - The Crown in Right of Ontario (Ministry of Health) Before G.J. Brandt Vice-Chairman R. Russell Member G. Peckham Member For the Griever: Maureen Farson Counsel Cornish & Associates Barristers & Solicitors For the Employer: Mary V. Quick Counsel Legal Services Branch Ministry of Health Griever Employer Hearing: June 19, 1986 2 nECISION This award deals with a preliminary objection rasied by the Employer to the jurisdiction of the Board to hear a grievance claiming unjust dismissal from employment. The parties have agreed to the essential facts. The griever was at all material times a member of the unclassified service employed at the Penetanguishine Mental Health Centre. He was initially employed as a summer student in 198 1 and his employment was continued by a series of contracts. By letter dated November 13, 1985 he was advised that his contract would not be renewed following its exphy on November 30, 1985. The reason for the decision not to renew his contract was “unacceptable performance”. This case is another in the series of cases in which the Board has been called upon to define the rights of ‘contract’ employees or employees in the unclassified service. However, as will become evident, the Union has raised an argument which does not appear to have been made before this Board to date. The question as to the rights of ‘contract’ employees requires an examination of the Public Service Act, the Crown Employees Collective Bargaining Act and the collective agreement. Section 8 of the Public Set-v@ Act makes provision for the appointment (by the Minister or a designate) of a person to a position in the unclassified service for a period of not more than one year on the fist appointment and for any period on any subsequent appointment. Section l(g) defines a ‘public servant’ as “a person appointed under this Act to the service of the Crown...by a Minister” and section l(a) defines a ‘civil servant’ as “a person appointed to the service of J 3 the Crown by the Lieutenant-Governor in Council on the certificate of the Civil Service Commission”. Thus, by virtue of these provisions, the griever is a public servant but not a civil servant. He is also an “employee” within the meaning of section l(f) of the Crown Employees Collective Bargaining Act which defines ‘employee’ as a “Crown employee as defined in the Public Service Act”, viz, a “person employed in the service of the .Crown” (Public Service Act, s. l(e)). Under the Crown Employees Collective Bargaining Act he is entitled, by virtue of s. 18(2)(c) to grieve a “dismissal” from employment. As an “employee” who is not a “civil servant” the griever’s rights under the collective agreement are set out in Article 3.1 which provides that the only terms of the agreement that are applicable are those ‘set out in this Article.’ The only provision of relevance in this case is Article 27.6.2 which provides that “any employee other than a probationary employee who is 0 . dismissed shall be entitled to file a grievance....” All of these provisions establish clearly that ‘contract’ employees in the unclassified service who are ‘public servants’ have a right to grieve against their “dismissal” from employment. The issue which is raised in this case is whether or not the non-renewal of the contract of a member of the unclassified service can be said to be a “dismissal” from employment which, as such, can be made the subject of a grievance. The challenge to our jurisdiction to hear this matter is based on the@ claim that a ‘non-renewal’ of a contract of employment of a member of the unclassified service is not a ‘dismissal’ and that, consequently, it is not a matter about which the griever can grieve. The Employer relies primarily on s. 9 of the Public Service Act which provides that “a person who is aopointed 4 to a position in the public service for a specified period ceases to be a public servant at the expiration of that period.” The issue as to the proper characterization of the non-renewal of a contract has come before the Board on a number of earlier occasions. (See. BP~Q 173/78;-72176; Sk&r&y429/81; Humeniuk 6 14/84; and Henderson SO6/8S) Of the cases in which the issue has been decided the Board has, without exception, held that a person whose employment has ceased by operation of s. 9 of the Public Service Act, viz, upon expiry of the contract, cannot be said to have been ‘dismissed’ within the meaning of s. 1812IfcI of the Crown Employees Collective Bargaining Act. Moreover, the Board has stated that the decision of the Employer not to re- new an expired contract is not amenable to review by the Board. It should be noted, however, that apart from ,$k&&y, the question has not arisen as it has here by way of a preliminary objection. Counsel for the Union frankly conceded that the jurisprudenceof the Board went against the position she was taking. However, she invited the Board to re-consider its position in the light of another line of cases in which the Board has been faced with a challenge to its jurisdiction to review the decision of the Employer to terminate the contract of an employee in the unclassified service prior to its natural expiry date. In those cases the Employer argued, as here, that a ‘termination’ wa,s not a ‘dismissal and that consequently the Board had no jurisdiction to review it. It is now well establlsed that the Board does have jurisdiction to entertain those grievances for the purpose of determining whether or not the action of the Employer was in reality a ‘termination’ or a ‘dismissal’ in disguise. (See Boucher 2 18/78; Miller 530182. 531182) 5 In A,m&y 429/84 the Board elaborated on the distinction between dismissal and termination and held that what must be cunsidered is the motivation of the Employer in bringing the employment relationship to an end. As the Board stated: “....Where an employer tries to bring an end to the employment hyxgason of a desve to react to con.dxL m this must be viewed as a dismissal rather than a mere termination..... A termination can thus be viewed as the ending of an employment relationship for &m&y&’ (Emphasis added) The Union. in this case, invites the Board to adopt the same approach. that is, to take jurisdiction for the purpose of determining whether or not the ‘non-renewal; (as distinct from ‘termination before expiry’) was motivated by concerns relative to the conduct of the griever or by other concerns. For example, it was suggested that if the non-renewal was for reasons of budgetary or financial constraints it could appropriately be characterized as a ‘termination’. However, where it was refated to, for example, a concern about work performance, a concern which is personal to the employee, it ought to be characterized as a ‘dismissal’ and subject to grievance. / The key concern of the Union, of course, is that, unless the Board assumes jurisdiction to determine the motivation of the employer. it cannut characterize the action taken and. would, if it declined jurisdiction, deprive the griever of an opportunity to challenge allegations about his personal conduct or performance. 2 - ‘ 6 None of the cases cmcernhg ‘non-renewal’ of contracts (cited above) makes any reference to the parallel line of cases deahng with ‘termination’ of contracts although both sets of issues have been before the Board since 1978. We can only assume that to date no one has raised the matter. Consequently, the Board is in this case invited by the Union to reconcile the 2 lines of cases and treat ‘non-renewal’ in the same fashion as it treats ‘termination’ of the contract of an employee in the unclassified service. It may be noted at the outset that the distinction proposed by the Union between concerns personal to the employee and those which relate to the position that he or she holds is not one which is borne out by the non- renewal cases themselves. Admittedly in m and in R.q& there was nothing to indicate that that the non-renewal had mythias to do with the employee’s work performance. However, in &fn&& and in Henderson there was clearly a suggestion of concern about conduct and work performance. In $ki&&there is no discussion of the facts but the Board, after finding that the decision not to re-appoint the grievor is not amenable to rt?VieW, states (p,4) that “the why’ of that decision which is the aspect of the matter that most concerns the grievor is, of course, similarly beyond our reach.“, a comment suggesting that motivation is irrelevant. Thus. if we were to accept the Union’s argument and to apply it to those cases we would have to find that Humeniuk. and possibly Sk&sky were incorrectly decided. That is a course of conduct which the* Board would not, lightly undertake. We should not, however, dispose of this matter on this kind of basis. As noted the arguments presented here were not apparently put before the Board in those cases and we cannot know how the Board would have responded to them. In our opinion the resolution of the issue turns on t&e question as to how the employment relationship becomes severed. In the ‘termination’ cases that occurs by reason of the certain action on the part of the Employer. But for the action of the Employer the contracts would have run their natural course. Since it is through the action of the Employer that the contract has been brought to a pt.?matUre conclusion it is relevant to inquire into the motivation behind the action in order to determine whether or not what purports to be a ‘termination’ is in reality a ‘dismissal. However, in the non-renewal cases the employment relationship is not severed by reason of any action of the Employer. It is severed by operation of s. 9 of the Public Service Act or by the terms of the contract itself, If the Employer were to do nothing the contract would come to an end upon the expiry of its terms. There is, therefore, no ‘action’ by the Employer the motivation for which requires investigation. Nor do we regard the giving of notice that the Employer does not intend to re-new the contract as constituting “action” which brings about the severance of the relationship. It is more of a courtesy which permits the employee to seek other employment. The difficulty with the position taken by the Union is that, if accepted, it would biur the distinction between the classified sad the unclassified service. That is a distinction which is well recognized by the provisions of c the Public Service Act and is one which we must respect It would give employees in the unclassified service a measure of job security which would approach that of those in the classified service. To quote from m “...for the Union successfuly to alter the impact of ss. 8 aad 9 of the Public Service Act, it would need J I I to negotiate express provisions in the collective agreement requiring such appointments to be entirely on the same basis as appointments to the ciassified service. Even in private sector labour relations, agreements are generally considered to be negotiated in the contest of an ordered statutory framework. Here, the Public Service Act is part of that framework..... If the UriiOn wishes to influence the way in which a Minister (or the Employer in general) will administer his or her (or its) statutory authourity, the Union must do so through collective bargaining, if at all.” Thus, we conclude that a non-renewal of the contract of an employee in the unclassified service is not a ‘dismissal’ from employment and that the Board. has no jurisdiction to review the circumstances under which the contract was not renewed. Bated at London, Ontario this 2nd day af September, 1986. G. J. Brandt. vi&chairman R. Russell. Member & C. Peckham, Member. ‘i