HomeMy WebLinkAbout1987-1972.Milley.88-05-12IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (C. Milley)
Grievor
and
The Crown in Right of Ontario
(Ministry of Revenue)
Employer
Before: M. G. Mitchnick I. Freedman
G. Peckham
Vice Chairman
Member
Member
For the Grievor: Rob Nelson
Counsel Gowling and Hende.rson
Barristers and Solicitors
For the Employer: David ~Daniels
Labour Relations Officer
Ministry of Revenue
Hearing,: March 1, 1988
* DECISION
This matter is yet another in a series of cases
before the Grievance Settlement Board involving the non-renewal
of a limited-term contract appointment.
The grievor, Chris Milley, was employed as an
Interest and Penalty Assessor for the Ministry of Revenue on
four successive fixed-term contracts,.covering.the period
November 10, 1986, .to September 30, 1987. The employer
concedes that the work performed by the grievor was
indistinguishable. from that performed by other “classified”
staff in the position;and that,the position does not fit
within any of,the three Groups of “unclassified service” set
out in section 6 of Regulation 881 to the P’ublic Service Act.
On September 1, 1907, the grievor was given notice by the
government that her contract would not be renewed beyond its.
September 30th expiry da,te, and the grievor continued to work
out’the remainder of that term appointment. It is the claim of
the present grievance, however, that the failure of the
government to continue the employment of the grievor beyond
September 30, 1987, constituted a “dismi-ssal”, and a dismissal
for which there was no just cause. The grievor accordingly
seeks ;I re-instatement” and full compensation. Section 18(2) of
the Crown Employees Collective Bargaining Act provides:
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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.
AS wel~l , Article 27 of the collective agreement provides:
18.-(2) In addition to any other rights
of grievance undera 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
(cl that he has been disciplined or
dismissed or suspended from his
employment without just cause,
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.
The Board had before it a similar set of facts
in the recent case of Beresford (1429/86), decision issued
November 12, 1987, and it is essentially on that decision
that the Union in the present case bases its submissions.
The government, on the other. hand, argues that:
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Beresford does not.establish the remedy
that the present grievance claims;
the Board has long held that it will
not diverge from one of its decided
precedents unless it finds the prior
decision to have been manifestly wrong,
and the Board in Beresford failed to
apply its own test when it decided to
over-rule its prior cases;
Beresford itself is manifestly wrong
and ought not to be- followed; and
at the very least, since Beresford is
currently on its way to judicial
review, the present case ought not to
be proceeded with until the correctness
of Beresford has been decided.
The starting point for both this case and
Beresford is that there are under the Public Service Act two
categories of appointments ~to the “public service” of.
Ontario, being appointments to the “classified service”, and
appointments to the “unclassified service’!. Thus the -
“classi.fied service” is defined under the Act as:
1. In this Act,
and “civi servant” is defined as:
(b) “classified service” means the
part of the public service to which civil servants are
appointed;
(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” as a corresponding meaning;
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and (c) "Commission" means the Civil
Service Commission.
.lt with Those two methods of appointment are specifically dea
in' the Act as.follows:
6.-(l) 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.
1. 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 or qualification and
assignment of the Commission.
The "unclassified service" is defined as:
"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.
and is provided for in the Act as follpws:
8.-(l) 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 of any subsequent appointment :
a person to a position in the unclassified
service in any Ministry over which he
presides.
9. 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 “pub1 i
appointees,
c servant”, which embraces both categories of
is defined in the Act as:
1. . . .
(g) “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
“public service” has a corresponding
meaning;
In simplified terms, for the. purposes material
here, the “classified” staff are the regular or “permanent”
employees of the government, and the “unclassified” staff are
the employees hired on fixed-term contracts. Those latter
contracts, by their own terms, “self-destruct” on their
expiry. date, and this Board in a long series of cases has
consistently rejected the argument of the Union that the
decision of the government not to renew such a contract at
the end of its term was a “dismissal”. The Board in
Beresford accepted and agreed with that line of cases, noting
at page 5:
Thus, if one assumes that a minister or
other designated person acted within his or her authority to appoint an individual to a
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fixed-term employment contract in the
%nclassified 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, 173/70, 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 of
his appointment, it cannot be said
that he was “dismissed” within the
meaning of s.17 (2) of the Crown
EmplOyeeS Collective Bargaininq
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The Board, at page 8 of its decision, further quoted the
conclusion of the Board in another case in that line, Joanne
Simpson (694/85), issued October 16, 1986, as that conclusion
appeared in Simpson at page 17:
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, l’985, and she
thereupon ceased to be a pub1i.c servant.
~11 of those earlier cases, h~owever, proceeded on the
assumption that the Board had before it a
properly-constituted appointment under section 0 to .the
“unclassified service”, and that it was thus a case to which
section 9 of the Act would apply. Challenges to that
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underlying premise were in fact made by the Uni on in both
Simpson and a subsequent case, Lacasse (33/86), issued
February 24, 1987, but the Board in those two ~cases was of
the view that that was not an issue that it was required to
deal with in the particular grievance that it’had before it.
It’was only on the question of whether or not
to deal with that issue of the initial appointment that the
Board, in Beresford, found it appropriate to go further and
deal with that issue on the basis of the specific arguments
,that it had before it. Once again, what the Board had before
it ,in Beresford was a “dismissal” grievance, but the Board
took the view that, as the “defence” of the employer was that
the grievor’s employment had simply come~to an end as a
result of a pre-determined limitation on its term, the,Board
was prepared to address the Union’s argument as to whether
that pre-determined limitation had been lawfully imposed. In
agreeing to direct its mind to that question, however, the
Board expressly cautioned (at the bottom of page 13) that it
was doing so “for whatever it may ultimately mean to the . .
grievor in terms of relief”. What it did in fact mean, as
the government in its submissions before us notes in the
present case, was not, and has not been, decided in
Beresford. As the last page of the decision sets out, the 1
Union itself foresaw problems with the form of remedy that
would be appropriate, owing in particular to the fact that.
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appointments to the “classified service” can only be made
through the vehicle of a postinq (see Article 4 of the
collective agreement). But in answer to another~ query put to
us by the government in the present case, if the ultimate
result of an improper appointment to the unclassified service -
were found to be that the ensuing period of employment must
therefore be treated as employment in the “classified
service” (and again, no case,~including the present, has
reached the point of deciding that yet), such employment
would be subject to the normal terms and conditions attaching
to employment in the “classified service”, including, in
particular, the serving of a probationary period. Thus, to
respond to counsel’s question directly, the present grievor,
who was employed on the total of her consecutive contracts
for less than a year, would at the .xery least be subject to
the provisions of section 22(5) ‘of the Public Service Act,
providing:
A deputy minister may release .from
employmentany public servant during the first year of his employment~for failure to
meet the requirements of his position.
and the government would be entitled to demonstrate, as the
alternative position that it puts forward, that grounds
sufficient for the grievor’s release as a probationer did
exist.
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In its preliminary objection to the Board’s
jurisdiction in the present case the government also, as
noted, asks the Board to find that Beresford was “manifestly
wrong" in its interpretation of section 8 and the
-Regulations, and ought not to be.followed in any event. The
connection between the present case and Beresford was not I
obvious on the face of the present filings, and as it
happened, the same vice-chairman who sat on Beresford was
assigned to hear the present grievance. That, no doubt, was
not exactly the situation that counsel for the Ninistry might
have hoped for; but there is no,“right” in a party to seek
reconsideration of the decision of one panel of the Board by
another, and counsel did not suggest that there was. The
Grievance Settlement Board takes the view, in any event, that
3 panel of the Board, in the interest of predictability for
the community that we serve, and the discouragement of.
“forum-shopping”, ought to~apply a very high test in deciding
whether it is appropriate to depart from a decided precedent
of the Board.See, for example, the decision of Chairman Shime
in Blake and the Amalgamated Transit Union, 1276/87 et al,
.released Hay 3, 1988.
Section 8 of the Public Service Act, once
again, provides:
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8.-(l) 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 Hinistry over which he
presides.
And section 6 of Regulation 881 passed by the government
pursuant to the powers granted to it under the Act provides:
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)
(ii)
(iii)
on a project of a non-recurring kind,
in a professional or other special capacity,
on a temporary work assignment
arranged by the commission in
accordance with its program for
providing temporary help,
(iv)
(VI
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, -.
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,
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(i) for fewer than twelve
consecutive months land for fewer
than,
(A) 36-l/4 hours per week where the position, if filled by a
civil servant, would be
classified as a position
requiring 36-l/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,
(cl 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 employee is to work either. 36-l/4 hours per week or 40 hours per
week.
The Board in particular noted the authority granted in
Section 30 of the Act to the Lieutenant-Governor in Council
to approve regulations developed by the Civil Service
Commission itself
” . . .
(w) respecting any matter-necessary or
advisable to carry on effectively
the intent and purpose of [the]
Act.”
The Board concluded that section 6 of Regulation 881 which
the government had found~it appropriate to pass thus served
to inform as to the intent and purpose of section 8 of the
Act, and that the government was required to satisfy the -:
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Board that an appointment to the “unclassified service” fell -
within one of the categories stipulated by the government
itself in its Regulation. Unlike, for example, the Simpson
case the government in Beresford did not consider it
necessary to call evidence to do that; and in the case of the
present grievor, the government concedes that her appointment
does not fall within any of the categories of section 6 of
the Regulation. On the basis of cases like Telegram
.Publishing Co. Ltd., I19731 1 0.~. (2d) 592; pulp and Paper
Workers of Canada (1968), 63 W.W.R. 497; Slater Steel
Industries, [1971] 1 O.R. 760; Law Society of Alberta (1985j,
16 Admin L.R. 317, however, wherein an outside party
complained about the. government or other rule-making
authority doing damage to that party’s interest by way of a
regulation which was ultra vires, the government itself asks
us to find that section 6 of the present Regulation, if read
as “exhaustive”, cannot stand in the unrestricted face of
section 8 of the Act, and ought to have been declared to be
of no effect by the Board in Beresford. To respond to that
argument shortly, we a,re not persuaded,,that the Government of
Ontario is in the same position as a third party to complain
that a Regulation passed by itself, purportedly under a power
granted by the Act, should be disregarded as ultra vires, or
as failing to reflect the true intent and purpose of the Act.
This argument could have been made in Beresford and was not;
but it'in any event has not been made clear to us that the
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conclusions which the Board drew on its first jmpression in
Beresford, of the effect of Section 6 of Regulation 881, as
presently drafted, were either manifestly wrong or such as to
meet the high test articulated in Blake for overruling a
prior decision of the Board. On that ground alone,
therefore, we are of the view that the position of the
Grievance Settlement Board as to the inter-relationship,
between section 8 of the Public Service Act and section 6 of
Regulation 881 to that Act ought to continue to be as
previously-decided in Beresford.
The Board accordingly directs that the present
grievance be scheduled for continuation of.hearing as
expeditiously as possible upon the request of either party,
and to that end the Board notes the agreement of the parties
that the present panel is not seized with the grievance.
DATED at Toronto this 12th day of :?lay, 1988.
/y&jy&&&g
M. G. Mitchnick - Vice Chairman
,$;“'Peckham - Member