Loading...
HomeMy WebLinkAbout1985-1542.Rao.88-09-21EYPLOIES DE LA COURONNE DEL’ONTARIO Cf.MulIS$ION DE SETTLEMENT REGLEMENT DES GRIEFS ,so o”Nms STREET WEST, TORONTO. ONTANO. MEG I,%. SUITEIIW TELEPHONE/Tk&WONE ‘SQ RUE WNMS O”ES~ T0RQ”T0. ,ONTNwJ, MSG 12s~ .wRE8l”2100 ,41s,s9&wB8 ,-$iizjl 1543/85, 1544/85 IN TEE HATTER OF AN ARBITRATION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Rae) Grievoc - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: For the Grievor: For the Employer: Bearings: 0.B. Fisher Vice-Chairperson H. O’Regan Member M. O’Toole Member N. Roland Counsel Cortiish & Associates Barristers & Solicitors C. Slater Senior Counsel Hanagement Board of Cabinet October 15, 1987 May 2, 1988 May 3, 1988 May 5, 1989 DECISION In an earlier decision of the Grievance Settlement Board (September 1,1988) the Grievance Settlement Board found that the grievor had formed a true intention to resign her employment on November 29,198s and thereafter she was simply making up her mind as to whether or not she wanted to withdraw her resignation. The grievor handed in a letter on December 4,1985 purporting to withdraw her resignation but this withdrawal was not accepted by the employer. The issue before the Board in the decision is whether or not the Grievance Settlement Board has jurisdiction to review a decision of the Deputy Minister pursuant to Section 19 of the Public Service Act in refusing to accept the withdrawal notice of the grievor. Section 19 of the Public Service Act reads as follows: 19. A person may resign from the public service by giving his deputy minister two weeks’ ‘notice in writing of hir intention to resign, bti he may, by an prop&e notice in writin and wzth tJwz$$yc%f hzs de z.zty ministey, wi&kaw the ~tzmebe&eitse#ktzvedateifno person has een appointed or selected for appointment to theposition that will become vacant by reason of hti reszgnatior~ The employer’s position is clear and straightforward. The authority of the / Grievance Settlement Board flows either from the Collective Agreement or Section H(2) of the Crown Employees Collective Bargaining Act. We have no authority under the Public Service Act and certainly no general authority to simply correct perceived injustices. There is nothing in the Collective Agreement regarding the withdrawals of resignations. There is nothing in Section H(2) of CECBA regarding withdrawals of resignations. Ms. Rao may have the right to have the Deputy Minister’s decision reviewed either before the Public Service Grievance Board or judicial review but not before the Grievance Settlement Board. -2- The Union now does not argue that the Grievance Settlement Board can directly review the Deputy Minister’s decision under Section 19 but argues that Ms. Pao in fact did not resign and therefore was dismissed. The logic of the Union’s argument is as follows. 1. The earlier Grievance Settlement Board decision did not find that the grievor had submitted a legally binding resignation, rather the Board simply found that the acts of the grievor showed a true intention to resign. c 2. Section 19 of the Public Service Act in fact’ creates a different rule for resignation in the public service than in the private sector. In the private sector the finding that the grievor expressed a true intention to resign is all that is required to constitute a valid resignation. Arbitration awards in the private sector have consistently found that they have no jurisdiction to hear a case of the employer’s refusal to accept a withdrawal of a resignation as once the employee has resigned, they are outside the protection of the Collective Agreement. (Re: Northern Electric Co. Ltd. and UAW LOCAL 1535 [1969] 21 L.A.C. 53 {Hamahan} and Government Employees Union 17 L.A.C. [2d] 42 {Bird}). CL... However, Section 19 in effect makes all resignations conditional on not being revoked prior to the effective date if no other person has already been selected to fill the vacancy. Phrased differently, Section 19 gives the employee the right to withdraw his resignation as long as, a) it is done prior to the effective date; b) the position has not been filled. Once the employee establishes these preconditions, the Deputy Minister must consider her application and if he fails to do so, the resignation itself is null and void and therefore the refusal of the employer to allow the employee to continue workingk a -3- dismissal. Dismissals are reviewable by the Grievance Settlement Board under Section lS(2) of CECBA. 3. It is unclear from the Union’s argument whether or not the review the Grievance Settlement Board would conduct of the Deputy Minister’s decision under Section 19 would be in the form of a judicial review (ie. did he consider the matter properly, did he ignore invalid factors and consider only valid factors) or rather, in the nature of determining if the Deputy Minister made the correct decision and if not, substitute our decision for the Deputy Minister’s. Grievance Settlement Board cases in the past have looked at the decision making process of a Deputy Minister under the Public Service Act. In Miller (2613/87 Vice Chairperson Samuels) the Board reviewed the actions of the Deputy Minister under Section 22( 1) of the Public Service Act (the power to suspend without pay during an investigation). In Beresford (1429/86 - Vice Chairperson Mitchnick) the Board examined the appointment process of the Ministry in deciding whether or not a purported appointment to the Classified Service was done in accordance with the Public Service Act and its Regulations. However, the common thread running through these cases is that the inquiry into the Minister’s decision making process under the Public Service Act is done because the effect of the Minister’s decision is a disciplinary one, ie. the employee is either dismissed or suspended. Therefore, in order for the Grievance Settlement Board to conduct an inquiry into the mind and actions of the Deputy Minister pursuant to Section 19, we must find that a resignation under the Public Service Act is different than one in the private -4- sector. In fact, a close analysis of Section 19 indicates that the procedure is very similar to the private sector, either unlonize.d or non-unionized. The procedure under Section 19 is as follows: 1. First, the employee must give two weeks notice of resignation. This is the same as exists in the non-unionized private sector where an employee is required to give reasonable notice of his resignation (Oman v. Dustbane Industries, Ontario Court of Appeal, Lawyers Weekly 836-019). 2. Secondly, the employee may change his mind and seek to withdraw his resignation on certain terms. In the private sector, an employee can certainly change his ,mind and ask his employer to accept his withdrawal. 3. Thirdly, the withdrawal can only be accepted if it is done prior to the last date of work and if the position has not been filled. In the private unionized sector an employer certainly could not allow an employee to withdraw his resignation once the job had been filled or after he completed his last day of work because this would either result in the unjust dismissal of the employee hired to replace the resigned employee or the failure to post a vacancy. 4. Fourth, the Deputy Minister must approve the withdrawal. In both the unionized and non-unionized private sector, the decision as to whether or not to accept a withdrawal of a resignation is strictly a Management function, not open to arbitral review unless the Collective Agreement clearly provides for it. It would appear therefore that there is nothing unique about Section 19 that would lead one to construct a different model of resignation under the Public Service Act as opposed to the private sector. Rather, it appears that the purpose of Section 19 is to enable the Deputy Minister to accept a withdrawal of a resignation insofar as the government, unlike private sector employers, must have statutory authority for carrying out certain employer functions. The Union would have us read into Section 19 some sort of statutory “cooling off’ period in which employees could change their mind about their resignations and subjecting the employer’s refusal to accept such withdrawals to arbitral review. The concept of such a “cooling off” period may well be a admirable labour relations objective, but it is one which should be negotiated for and included in the Collective Agreement. The grievance is therefore dismissed. Dated at Toronto, this 21 st day of August, 1989. i.