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HomeMy WebLinkAbout1986-1429.Beresford.87-11-12180 STREET WEST. TORONTO, M5G -SUITE 2100 416/598- 0688 1429/86 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before : OPSEU (L. Beresford) Grievor and The Crown in Right of Ontario (Ministry of Government Services) Employer M. G. Mitchnick J. A. Stapleton Vice Chairman Member Member For the Grievor: A. Ryder Counsel Cowling and Henderson Barristers and Solicitors For the Employer: M. Milich Staff Relations Officer Staff Relations Branch Human Resources Secretariat Hearing: August 13, 1987 DECI S ION This is a grievance filed to section 18(2) of the Crown Employees Collective Bargaining Act, and Article 27 of the collective agreement. Those provisions read, respectively: 18.-(2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been-improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (C) 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. 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. Both of those provisions provide for the grieving of a "dismissal", and in order to succeed, Mr. Ryder recognises -2- that it is necessary for him to show that what occurred to the grievor, Linda Beresford, in this case was in fact a It is the simple position of the employer that the grievor had been appointed to a fixed-term contract, and that the failure to renew that contract at the end of its term is not a The grievor had been employed as a (telephone) consul operator in the Information Services Branch of the Ministry of Services. There are 28 such consul operators, and have been since 1976. At the time of the grievor's termination half the consul operators were "classified" staff, and half "unclassified" (i.e., contract or GO-Temp employees). The grievor herself was first employed as a "classified" civil servant in this job, in 1976, for a period that lasted 6 months. She then returned to the job in May of 1985, following the dismissal of the incumbent, as a GO-Temp, and was put on contract in June of that year for six months. Following that she was signed to a further contract that was 11 months in duration. On the expiry of that contract, her employment was not renewed. The position continued to be part of the complement, however, and was filled by a GO-Temp employee. Pursuant to an agreement of general application with the Union, the GO-Temp in that position was subsequently signed to a contract, and more recently the position itself has now been posted (also pursuant to a general agreement the government had entered into with the Union). -3- The consul operators collectively staff 20 consuls, placed around circular modules in groups of five, and there is no difference'in either the work assignments, duties, or selection of work stations or shifts between the "classified and the "unclassified" staff. As well, in the case of the at least, the number of hours worked are 7-1/4 a day and 36-1/4 a week, pecisely the same as the "classified" staff. The Union argues that, in the circumstances, %he grievor should never have been treated as "unclassified" staff in the first place, and her form of appointment purporting to limit the term of her employment was therefore invalid. The terms and "unclassifiedf' have their source in the Public Service Act of Ontario. The Act provides: 1. this Act, (a) "civil 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 ; (b) "classified service" means the part of the public service to which civil servants are appointed; (C) "Commission" means the Civil Service 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 -4- "public service" has a corresponding meaning ; (h) "regulations" means the regulations made under this Act; (i) "unclassified service" means the part of the public service that is composed of positions to which persons are appointed by a minister under this Act. Thus "public servants" are divided into the "classified" service (which is synonymous with the service) and "unclassified" service, and the methods by which the two categories are appointed are distinct. Members of the "classified" (or "civil" service) are appointed by the means set out in section l(a) above, pursuant to the powers granted in sections 6 and 7 of the Act, Those latter sections provide: 6.-(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 not more than one year at a time. 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 of the classified 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. Appointments to the "unclassified" service are authorized by section 8, which provides: -5- A minister or any public servant 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 period on any subsequent appointment a person to a position in the unclassified service in any Ministry over which he presides, And then, section 9, the key to the employer's position, expressly provides: 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. Thus,,if one assumes that a minister or other designated person acted within his or her authority to appoint an individual to a fixed-term employment contract in the "unclassified service", that person by operation of the Statute ceases to be employed (or ceases to be a "public servant") upon the expiration of the period of the contract. There is, in other words, in the language of the Board's lengthy jurisprudence dealing with this point, no "dismissal". As the Board put it in the Bond case, 173/78, issued May 3, 1979, at page 3: It is our opinion that the grievor's employment "ceased" by operation of section 9 of the Public Service Act and by virtue of this section and the terms his appointment, it cannot be said that he was "dismissed" within the meaning of s.17 (2) of the Crown Employees Collective Act. In addition, the Board there noted the existence of Article 3 in the parties' collective agreement, which provides: ARTICLE 3 - SEASONAL OR PART-TIME EMPLOYEES 3.1 The only terms of this Agreement that apply to employees who are not civil servants are those that are set out in this Article. -6- The Board therefore went on to state: 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 particular interrelationship between the Public Service Act and the ‘Crown Employees Collective Act. Similarly, in Johnson and Szpakowski, 72/76, issued July 4, 1979, the Board wrote: 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 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 slightly on the Bond decision, it is our view that, for the 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. Ministers only have authority to appoint public servants to the extent that they are authorized to do so by the Legislature; all other purported appointments to the public service are without statutory sanction. 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. In the result, we find that the action complained of is not a dismissal, and is not subject to a test of just cause. In the more recent case of Joanne Simpson, 694/85, issued October 16, 1986, the grievor had been appointed to the -7- unclassified service under nine fixed-term contracts from September 1982 to June 1985. The grievor performed work similar to those in classified positions, but was one of a number of employees in the department appointed on contract. As here, the Board found it procedurally appropriate to consider at one and the same time the evidence on the employer's preliminary objection to jurisdiction and on the "merits", as the issues appeared in fact to be inseparable. The employer therefore called its evidence to explain why, for budgetary reasons, it had become necessary not to renew one of the expiring contracts in that department, and how the grievor had been selected as the one not to be renewed, The employer also explained why the grievor's former position had continued to be filled in various ways after the employment of the grievor herself had been brought to an end. Union's argument that the grievor occupied a position within the classified service (i.e.' occupied the same position as that occupied by persons in the service), and therefore, notwithstanding the existence of the contracts, she had to be considered as a member of the classified service and entitled to all of the protections and benefits of the collective agreement. In the alternative, the Union argued that if she were considered to be a member of the unclassified service and subject to the provisions of Article 3 of the collective agreement, the situation did not constitute a It was the termination of the contract but rather was a dismissal without just cause. The Board concluded, however, at page 13: -8- The Public Service Act creates the distinction between the classified and unclassified service, and it creates that distinction not on the basis of the particular jobs to be performed but rather on the basis upon which the employment status of a particular employee is created. And further, at pages 16 and 17: It is the conclusion of this Board that our .jurisdiction is affected by the timing of the purported termination of the employment status. The distinction between a termination and a discharge applies during the currency of a contract of employment created under Section 8 of the Public Service Act. That is not the situation when the contract expires on its terms. In the decision of this Board in Henderson, 506/85 (Verity) the ,following is stated at p. 9 of the decision: There is no provision in the Collective Agreement, or in the Public Service Act, or in The Crown Employees Collective Bargaining Act that compels an Employer to renew a term contract of employment. On the contrary, Section 9 of the Public Service Act makes it clear that the employment of a Public Servant expires at the expiration of a term contract In summary, it is our conclusion that the provisions of Section 9 of the Public Service Act deprive us of any jurisdiction to grant a remedy to the Grievor. She became a public servant under the provision of Section 8 of the Act, and such appointment is for a specific period only. That period expired for the Grievor on June 28, 1985, and she thereupon ceased to be a public servant. Similarly, in Mousseau, 1182/85, issued December 26, 1986, the Board wrote, at pages 10 and 11: 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 would become a dead letter, removing almost completely the distinction between the classified and the unclassified service and depriving the Employer of the 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 -9- element whatever, a function we do not think was contemplated by Sections 18 and 19 of the Crown Employees Collective Bargaining Act. Mr. Ryder, on behalf the Union, accepts that the question of whether a "dismissal" occurs under section 9 of the Public Service Act, has been (repeatedly) decided by the Board, and that some other ground must be found upon which to characterize the termination of the grievor as a "dismissal". The grounds which Mr. Ryder now adopts in the matter before us essentially are as follows: 1) The Legislature, by bothering to include in section 8 of the Public Service Act a time constraint of one year for at least the initial appointment to the unclassified service, must have contemplated that the discretion vested in a minister to opt appoint in that fashion is not entirely unfettered. to 2) The situations contemplated by the "temporary" appointment power given to a minister under section 8 are in fact defined and limited by the express terms of the government's Regulation 881, which in section 6 expressly states: 6.(l) The unclassified service consists of employees who are employed under individual contracts in which the terms of employment are set out and is divided into, (a) Group 1, consisting of employees who are employed, (i) on a project of a non-recurring kind, (ii) in a professional or other special capacity, (iii) on a temporary work assignment arranged by the commission in accordance - 10 - with its program for providing temporary help, (iv) for fewer than fourteen hours per week or fewer than nine full days in four consecutive weeks or on an irregular or on-call basis, (V) during their regular school, college or university vacation period or under a co-operative educational training program; (b) Group 2, consisting of employees who are employed on a project of a recurring kind, (i) for fewer than twelve consecutive months and for fewer than, (A) 36-1/4 hours per week where the position, if filled by a civil . servant, would be classified as a position requiring 36-1/4 hours of work per week, (B) 40 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 40 hours of work per week, (ii) for fewer than eight consecutive weeks per year where the contract of the employee provides that the employee is to work either 36-1/4 hours per week or 40 hours per week; (C) Group 3 consisting of employees appointed on a seasonal basis for a period of at least eight consecutive weeks but less than twelve consecutive months to an annually recurring position where the contract provides that the . - 11 - employee is to work either 36-1/4 hours per week or 40 hours per week 3) If that is not the interpretation which section 8 of the Public Service Act was meant to bear, then section 8 is contrary to section 15 of the Charter of Rights. Section 15(1) of the Charter provides: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. and Section 1 provides: The Canadian Charter of Riqhts and Freedoms the rights and freedoms get out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Mr. Ryder argues that to deny a particular employee "equal protection" (i.e., full "just-cause" protection, not "just-cause" protection that applies only during the specified term of a contract of employment) without any identifiable (and acceptable) basis for doing so is, in the language of the Ontario Court of Appeal in Re McDonald and The Queen (1985), 51 O.R. (2d) 745, at 765, to make constitutionally-prohibited distinctions in treatment amongst "those who are similarly situated" These very arguments were placed before the Board in OPSEU (Lacasse) and the Crown in Right of Ontario, File 33/86, 12 decision issued February 24, 1987. In that case the grievor, Mrs. E. Lacasse, was hired by the Ministry of Agriculture to perform clerical duties which were acknowledged to be similar to duties performed by Clerical Stenographer 2's within the classified service. Her employment, in the unclassified service, took the form of 14 successive six-month contracts, the first one commencing in 1979, and the last one expiring on March 15, 1986, after a decision had been made not to renew Mrs. Lacasse's contract any further. The arguments in the Lacasse case, counsel admits here, were cast somewhat differently, and the bulk' of the Board's attention there, in a lengthy and comprehensive decision, clearly was upon the application of the Charter and its impact. Board dismissed the grievance on the ground that Ultimately the under the Public Service Act was determined solely by the nature of an individual's appointment, and that "a public servant (a term which includes unclassified staff) and a civil servant (a term which means only classified staff) do not share the same employment status and therefore cannot be said to be similarly situated" (page 33). The argument on section 6 of the Regulations, on the other hand, appears to have been rejected on the same basis as would have been implicitly the case in one of the more recent of the long line of cases preceding Lacasse, J being Joanne Simpson (referred to earlier). In the Simpson case the position occupied on a contract-basis by the grievor was once again indistinguishable from the "permanent" positions occupied by civil servants, and the - 13 - Lacasse award, at page 25, quotes the Simpson decision as follows : The Public Service Act creates the distinction between the classified and unclassified service, and it creates that distinction not on the basis of ---___.- the basis upon the employment status of a particular employee is created. Act. a civil servant is, by definition, someone Pursuant to that and 7 of that Act. If the status is created under _- Section 8, as was the Grievor's, that person is not a civil servant, irrespective of what job is being - therefore comes within the recognition clause of the Collective Aqreement. No action of the. - -- 'status as established by the provisions of the Public Service Act and the Collective Agreement. Article 3 of the Collective Agreement does not refer to the classified or unclassified service. It refers only to employees who are not civil servants. The Grievor clearly is not a civil within the definitions of the Public -_- Service Act. the part of the Employer in placing her in the permanent position which she occupied is beyond the scope of this grievance Whether there was any impropriety on (emphasis added) Given the direction of argument in the present case, however, we are of the view that the question of the relationship between section 8 of the public Service Act and section 6 of Regulation 881 thereunder, cannot be avoided. The employer relies on the grievor's limited-term appointment to the unclassified service, and the natural expiry of that term, as a complete answer to this "dismissal" grievance, and the Union in return argues that the employer cannot rely upon an appointment the form of which was outside its authority. For whatever it may ultimately mean to the grievor in terms of 14 relief, it Seems to us that that counter-argument of the Union has to be addressed here. Section 8(1) of the Public Service Act, upon which the employer relies, once again provides: A minister or any public servant 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 period on any subsequent appointment a person to a position in the unclassified service in any Ministry over which he presides. The section is in fact curiously worded, to the extent that it does raise the question why the Legislature would limit the term of the initial appointment to one year, but then go on to permit any extension of that term on an indefinite basis. That wording would, therefore, tend to support Mr. Ryder's argument that, in order to fall within the contemplation of the Legislature as to what constitutes a "proper" appointment on a limited-term there must be something about the job in its initial conception which distinguishes it from the normal "permanent" position in the classified service. More important to us, however, is the wording adopted by the Civil Service itself in enacting, on the approval of the Lieutenant Governor in Council, section 6 of Regulation 881 under the public Service Act. We note, first of all, that section 30 of the Act expressly empowers the Commission to make regulations - 15 - (W) respecting any matter necessary or advisable to carry on effectively the intent and purpose of [the Act." Section 6 of Regulation 881, as pointed out above, provides that "the unclassified service consists of". contract employees and "is divided into" 3 groups, which are set out in detail in the remainder of the section. That language is cast in a way that is "exhaustive" (as opposed to "inclusive"), and appears to provide, in a way expressly authorized by section 30 of the Act, ,a definition of the kind of situation contemplated by inclusion of a power of appointment to the unclassified service by way of section 8 of the Act. Those 3 "Groups" set out in the regulation, on the other hand, cover a very wide range of situations, and obviously create a broad degree of discretion in a minister when considering a fixed-term appointment to the unclassified service, rather than an open-ended appointment to the classified. In fact, the bulk of the appointments to the unclassified staff would in all likelihood "speak for themselves", in the sense that they would, by their very nature, fall within the terms of section It may well be that in such cases no further evidence from the employer will be needed. It is only, in other words, where the evidence pertaining to the position suggests on its face that the position fits into none of the categories of employment set out in section 6 of the regulations that an onus will arise upon the employer to present evidence of its own which would demonstrate that the appointment did in fact fall within one of the specified categories. 16 This is one of those cases. The position to which the grievor was appointed clearly was not "seasonal", had no different hours or other conditions of employment than the similar positions to which persons had been appointed to the classified service, and all of the evidence we have as to the temporal nature of the position points to the contrary of it being of a "non-recurring" or "temporary" kind of position. Yet, as discussed, we are compelled to conclude that section 6 of the regulations, by its very terms, requires an appointment to the unclassified service under section 8 to fall within one of the categories set out in the for the employer, in light of the fact that no evidence of the employer's intentions or perceptions with respect to the grievor's position was called, urged the Board to assume that the limited-term appointment would not have been made without the kind of "good reason" which section 6 of the regulations itself sets out. We are not prepared to do that. Accordingly, we must find on the evidence that we do have that the position to which the grievor was appointed was not one which falls within any of the various situations encompassed by the 3 Groups set out in the regulations, and as contemplated by section 8 of the Public Service Act. We find, therefore, that the purported appointment of the grievor to the "unclassified" as opposed to the "classified" service was improper. As the parties recognized at the hearing, however, that finding does not necessarily provide an answer for the grievor on the question of remedy. To begin with, as the Union acknowledges, had the position been properly treated as one in the "classified" service, as the Union has contended, the position would have had to have been posted. in the evidence, been further developments with the position since the grievor's tenure there ended. circumstances, therefore, it was agreed by the parties that And there have, as noted In all of the the question of remedy be left at this stage to be addressed by the parties, with the Board remaining seized in the event that the matter cannot be resolved between then. The Board simply finds and declares, therefore, that the purported limited-term appointment of the grievor to the "unclassified" service was, on the basis of the evidence and the particular facts before us, improper and unauthorized by the provisions of the Public Service Act, and the,regulations thereunder . Dated at Toronto, Ontario this 12th day of November, 1987. M. G. Mitchnick Vice Chairman J. Solberg -