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Home My WebLink About1986-0377.Corey.87-12-21377ta6 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: OPSEU (R. G. Corey) and The Crown in Right of Ontario (Ministry of Correctional Services) .I. Gandz J. Best L. Turtle Vice Chairman Member Member S. Elgie Counsel .Gowling & Henderson Barristers & Solicitors For the Employer: lb 3. Hannah Senior Staff Relations Officer Ministry of Correctional Services Hearing: me t, 1987 Grievor Employer -l- The Facts The parties submitted the following statement of facts regarding the greivor's employment in the unclassified service. 1. 2. 3. 4. 5. Mr. Corey was an unclassified correctional. officer 1 at the Stratford Jail. Mr. Corey was appointed as a public servant in the unclassified service under section 8 of the Public Service Act for the period October 16, 1985 - April 15, 1986. Mr. Corey ceased to be a public servant at the expiry of his contract on April 15, 1986. Mr. Corey was notified in writing bycthe Superintendent on April 7, 1986 that his contract would not be renewed when it expired April 15, 1986. Mr. Corey was called in and worked up to the date of expiry of his contract, April 15, 1986. John Sinclair, the superintendent of the Stratford Jail since 1978, testified that the decision to renew an unclassified employee's contract was based on the availability of a position and the employee's performance and record of sick leave use. He noted some deterioration of the grievor's performance and, in January 1986, the grievor's use of sick-time and unavailability for work increased. This influenced the decision not to'renew his contract. At no time did the grievor receive any reprimands or disciplinary actions for his work performance or attendance. He was not asked to explain his deficiencies, nor was he given any reasons for non-renewal of his contract. In his evidence, Mr. Corey stated that he had asked at his swearing in ceremony if his contract was renewable and he formed the impression that if he did a satisfactory job, it would be renewed. -2- 1 The Arguments Management argues that this is not a dismissal, but that it is a non-renewal of a term contract. Accordingly, the employer argues, this board has no jurisdiction. The union claims that the grievor was unfairly treated and denied the full measure of natural justice because he was not given an opportunity to explain the alleged performance deficiency. The Decision ~The union first has to demonstrate that, in the face of the objection raised by the employer, this board has jurisdiction to decide on the merits of the case. There is no question that section %8(2)(c) of the Crown Employees Collective Bargaining Act (CECBA) provides all employees with access to the grievance procedure if they are dismissed without just cause. A series of cases (Boucher & Trumbley 218/78; Miller and Macphail 530/82) established that the termination of an employee in the unclassified service during the life of that employee's contract could constitute a dismissal. The characterisation of such a termination would depend on the facts. The employees involved all had unexpired contracts which were prematurely terminated after notice was given. All the terminations in 'those cases were a result of performance deficiencies. A subsequent series of cases (Skalesky 429/81; Humeniuk 614/84; Henderson 506/85; and Cascagnette 1246/85) support the proposition that non-renewal of a contract which has run its term cannot be viewed as a dismissal even if the non-renewal is motivated by dissatisfaction with the employee's performance. In these cases, the employees had time-limited contracts which were allowed to expire. The employer decided not to renew them. -3- These two series of cases, taken together, stand for an approach which suggests that premature termination of a time limited contract may, on the facts, be'ruled a discharge whereas a decision not to renew an expired contract (or one about to expire) cannot be characterised as such. Another GSB case muddies the waters a little. In Mousseau (1182/85), the board was dealing with the non-renewal of a contract. The union sought to have this characterised as a disciplinary termination. The board found on the facts that the motivation was not disciplinary. Further, the board declined jurisdiction on the familiar theme (used in Skaleskv, Humeniuk, Henderson and Cascaanette) that this would blur or completely obliterate the distinction between the classified and unclassified services. Mousseau, therefore, completely supports these distinctions. However, on page 8 of the award, the board in Mousseau appear to entertain the idea that failure to renew a contract would, in effect, be a "dismissal for cause". Subsequently, on page 9, the board makes a simple distinction between "blameworthy" and "non-blameworthy" terminations of contracts. We note. with respect, that in this discussion, the board in Mousseau has been imprecise in making the distinction between non-renewal of a contract and a termination.. Indeed, the words appear to be used interchangeably. Giventhat Mousseau dealt only tangentially and hypothetically with a performance-related non-renewal, we prefer the clearer distinctions made between non-renewal and termination in Cascagnette, Humeniuk, Henderson, & Skaleskv. They set up a simple matrix. -5 FORM OF SEVERANCE OF EMPLOYMENT Termination during contract Non-renewal at end of contract -4- REASONS FOR SEVERANCE Performance- I Not Performance- related related Grievable Not Grievable Not Grievable Not Grievable This issue of jurisdiction was dealt with thoroughly Cascagnette (1246/85). "However, in the non-renewal cases the employment relationship is not severed by reason of any action of the Employer. It is severed by in 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 renew 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 blur the distinction between the classified and the unclassified service. That is a distinction which is well recognized by the provisions of 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 Johnson and Szpakowski (72/76) . . . 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 5 - 5- I be entirely on the same basis as appoint- ments 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.... If the Union wishes to influence the way in which a Minister (or the Employer in general) will administer his or her (or its) statutory authority, 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." This clearly and succinctly states the position of the Grievance Settlement Board in this type of case and we can see no reason for accepting jurisdiction over this grievance. Dated at London, Ontario this 21st day of December 1987 -Jsc$!& L. Turtle, Member