HomeMy WebLinkAbout1990-2293.Brown.92-06-04 Decision1992 - OPSEU (Brown) and Ministry of Transportation, GSB#1990-2293, (Gorsky)
ONTARIO CROWN EMPLOYEES EMPLOYES DE LA COURONNE DE L ON TARIO CoMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUlTE 2100, TORONTO, ONTARIO. M5G 1Z8 180, RUE DUNDAS
OUEST, BUREAU 2100, tORONTO (ONTARIO). M5G 1z8 BETWEEN BEFORE : TELEPHONE/TELEPHONE (4 326-1388 (4 16) 326-1396 2293/90, 2299/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES
COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Brown) -and -Grievor The Crown in Right of Ontario (Ministry of Transportation) Emp 1 oyer M. Gorsky D. Wintermute
D. Montrose Vice-Chairperson Member Member FOR THE M. Doyle GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE EMPLOYER C. Peterson Counsel Winkler, Filion
& Wakely Barristers & Solicitors HEARING February 21, 1992
1 I N T E R I M D E C I S I O N The Grievor, Geraldine J. Brown, was employed in the Central Regional Office of the Ministry of Transport in the Financial Services Office as a Financial
Services Clerk from May of 1988 to October 31, 1990. Prior to her period of continuous employment, the Grievor was a Financial Services Clerk under the co-operative .student program
in existence when she was a student at Humber College. As a co-operative student she worked during the school term performing duties similar to those carried out by her during the time
when she was employed between May of 1988 and October 31, 1990. She was also hired during the summer following her co-op student experience as a summer student, during which period she
performed the duties of a Financial Services Clerk. At the end of the summer she was offered a contract of employment, the first contract being from August 2 2 , 1988, expiring on March
31, 1989. Subsequently, she entered into eight additional contracts which expired in October of 1990. During the time that Ms. Brown functioned as a Financial Services Clerk, she worked
continuously under a series of contracts (Exhibit 3 ) . The workplace was described as being made up of one large room containing three departments: the Payroll, Accounts Payable, and
Financial Services. Financial Services Clerks in the Financial Services Department were responsible for administering data received from the other two departments by entering it into
the
2 computer. There were approximately 31 Financial Services Clerks in the Financial Services Department, 20 of them being classified employees, with the remainder being unclassified employees.
A s a Financial Services Clerk, the Grievor was assigned to work in three areas: (1) Payroll, where she entered data from key cards, the data being with respect to hours worked and vacations;
and for checking and balancing time sheets. ( 2 ) Accounts Payable, where she prepared vouchers for the payment of invoices submitted by suppliers; did a certain amount of filing; worked
on expense accounts of employees; checked purchase orders and packing slips against invoices, and checked with respect to back orders. ( 3 ) Financial Service, where she entered data
into the computer system using invoices; worked on journal time sheets, and documents from accounts payable and payroll: and cancelled cheques and balanced accounts. The work performed
by the Grievor was the same as that performed by all other Financial Services Clerks, and she could perform any of the work that might be assigned to a Financial Services Clerk. During
the time of her employment as a Financial Services Clerk, the Grievor participated in a number of competitions for the position of Financial Services Clerk in the classified service.
3 These competitions were posted on December 29, 1988, March 2 0 , 1989, November 20, 1989 and June 2 6 , 1990. After being unsuccessful in the first three competitions, the Grievor
signed a further contract with the Employer as a Financial Services Clerk performing the work and working the same hours as the classified employees working as Financial Services Clerks.
The Grievor filed two grievances on October 31, 1990. One of the grievances states: I grieve that I have been dismissed without just cause. The settlement desired states: I require that
I be reinstated immediately including full retroactivity of all salary, benefits and other credits, with interest at current rates. The position taken on behalf of the Grievor is that
she was improperly treated as being part of the unclassified service and that as a classified employee there was an absence of just cause for dismissing her when the last contract expired.
The second grievance claims: I grieve that I have been denied the position of Financial Services C l e r k , as advertised in competition NO. CRC-100. The settlement requested w a s
: I require that I be awarded said position immediately, including full retroactivity of salary, benefits etc.
4 The competition referred to was the last competition above mentioned. The Employer took the position that the Grievor was properly appointed to the unclassified service and that there
is, accordingly, no remedy available to her as a result of the termination of the contract or with respect to her non-appointment to the posted position. Counsel for both parties referred
to the Public Service Act and its regulations, the relevant provisions of the Act being as follows: 6.-(1) When a vacancy exists in the classifled 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. 8 . -( 1 ) 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. ( 2 ) Any appointment made by a designee under subsection (1) shall be deemed to have been made by his minister. R.S.O.
1980, c. 418, s. 8.
5 Section 6 of Regulation 881/89 of the Public Service Act reads as follows: 6. (1) The unclassified service consists of employees who are employed under individual contracts in which
the terms of employment are set out and 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 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.
( c ) (d) (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,
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 1/4 hours per week or 40 hours per week; Group 4, consisting of employees, (i) who are appointed pursuant to s . 8
of the Act, whether or not the duties performed by them are, or are similar to, duties performed by civil servants, and (ii) who are not employees that belong to Group 1, 2, or 3. 0.
Reg. 24/86, s. 3 ( 1 ) , part; 0. Reg. 129/89, s. 1 There were number of cases referred to in argument involving the status of employees purported to be appointed to the unclassified
service for a fixed period of time, followed by a series of subsequent fixed term contracts. In each of them, it was the position of the employer that the grievors had been appointed
pursuant to s . 8 of the Public Service Act to the public service for a specified period and that at the end of the period he or she ceased to be a public servant and that there were,
accordingly, no rights to grieve. Similarly, in each of the cases it was the contention of the union that the grievors had not been properly appointed to the
7 unclassified service, and that, accordingly, the provisions of section 9 of the Pub lic Service Act did not apply. In all of the cases it was either implicitly or explicitly agreed
that the grievance could be decided on the preliminary point: whether the grievors had been properly appointed to the unclassified service. If the Board so found, that would put an end
to the grievance and it would have to be dismissed. In all of the cases, the position of the employer was that the limited term contracted appointment was under Group 4, which was added
in March 1989. The first case referred to before us dealing with the rival contentions was Parry, 237/91 (Low), which is dated October 16, 1991. At p.7 of the Parry case, the Board stated:
It is now urged on behalf of the Grievor that this Board ought to ignore Group 4 or section 6(l)(d) of the Regulation for purposes of determining whether or not an appointment to the
unclassified service was properly made pursuant to section 8 of the Public Service Act, and it is urged upon us that we ought to import into the language of section 8 an underlying requisite
condition of temporariness in the nature of the position in order to find that an appointment had properly been made to the unclassified service under that section. At pp.7-8 of the
Parry case, the Board stated: When the types of positions set out in Groups 1 through 3 of section 6 of the Regulation are examined, one sees that temporariness is not a universal earmark
of the positions or types of work stipulated.
8 Further, at p.8, the Board stated: There is nothing in the language of section 8 of the Act which itself imports a connotation of temporariness and on a plain reading of the section,
it is quite conceivable that beyond the first. appointment which must be for a period of not more than one year, all subsequent appointments could be for lengthy periods of time. It
is also conceivable that such appointments could be renewed indefinitely. In my view, to import into the language of section 8 of the Act a connotation of temporariness, whether read
together with section 6 of the Regulation or not, is to strain the language of the statute beyond what it can bear, and I would not so construe the section even in the absence of the
addition of the fourth group of unclassified employees found at section 6 ( 1 . ) ( d ) of the Regulation. At page 9 of the Parry case ,the Board identified the issue before it: "The
issue then is whether section 6 ( l ) ( d ) of the Regulation is contradictory to or inconsistent with section 8 of the Statute. At page 10 of the Parry case the Board stated: While
the draftsmanshlp is n o t elegant, we are unable to escape the conclusion that the intent of the legislation is to expand the Minister's powers of appointment under section 8 of the
Statute. We note in passing that the Collective Agreement now provides at Article 3.15.1 that: "Effective April 1 , 1991, where the same work has been performed by an employee in the
Unclassified Service for a period o f at least two (2) consecutive years, and where t h e ministry has determined that there is a continuing need for that work to be performed on a full-time
basis, the ministry shall establish a position within the Classified Service to perform that work and shall post a vacancy in accordance with A r t icle 4 (Posting and Filling of Vacancies
or New Pos I t i ons We are of the view, t h e r e f o r e that the Minister did have the power under section 8 to appoint Mr. Parry to the unclassified service at t h e date that he
was first appointed, and that that k i n g the case, Mr. Parry ceased
9 to be a public servant pursuant to the provisions of section 9 of the Act upon the expiry of his last contract. The Board further stated at pp.10-11: It was urged upon this Board that,
because Mr. Parry had been allocated to Group 1 of the unclassified service on all the contracts pursuant to which he was appointed, that the employer may not rely on the provisions
of section 6(l)(d) of the Regulation creating fourth class in asserting that M r . Parry was properly appointed to the unclassified service. We are of the view that the employer's allocation
to a Group within the unclassified service is not determinative of the matter one way or the other. It is for this Board to look to the substance of the facts rather than to the nomenclature
applied thereto, but more importantly, we must consider whether there has been any detrimental reliance in determining whether or not to apply an estoppel, and in the circumstances,
there is no evidence of any reliance. In our view, there is no inconsistency between the provisions of section 8 of the Statute and section of the Regulation under the Statute, and therefore
we are not able to accede to the argument of the union that section 6(l)(d) of the Regulation is ultra vires and of no effect. We therefore dismiss the grievance. In the case before
us, the Grievor was initially placed i n Group 1 and, upon the change in the Regulation, in Group 4, however, this was not consistently the case. A s in the Parry case, it is up to the
Board to determine which class the Grievor falls into. In Singh, 333/91 (Dissanayake), dated January 21, 1992, at p.5, the Board stated: The Board's early decisions appear to have concluded
that the Board lacked jurisdiction to deal with a non-renewal of an unclassified employee's employment contract under any circumstances. e.g. see, Re Humeniuk, 613/84 (Springate) and
Re Henderson 506/85 (Verity). Then came the now well-known decision in Re Beresford, 1 4 2 9 /8 6 I
(Mitchnick), (application for review dismissed by the Ontario Div. Ct.) and a line of decisions following its reasoning. The Board, in Singh, reviewed the Beresford line of cases, and
stated at pp.14-15: A review of the Beresford line of cases indicates that the rationale for the Board's conclusion that the appointment to the classified service was improper, was the
fact that it did not fit into any of the categories in section 6 ( 1 ) of Regulation 881, which "defined" what constituted the unclassified service referred to in section 8 of the Act.
Since the categories then enumerated in section 6 ( 1 ) related to temporary, nonrecurring or seasonal types of positions, the Board's comments in the various decisions about the distinctions
or similarities between the work performed by employees in the unclassified and classified services respectively are understandable and indeed quite appropriate. In dealing with the
implications of the introduction of subsection (d) of section 6 ( 1 ) of the Regulation, the Board in Singh stated at pp.15-16: However, the Board in determining the present grievance
is faced with the new fourth category of unclassified employees included in subsection (d) of section 6 ( 1 ) . There is no ambiguity in this new language. Firstly, it clearly states
that the unclassified service includes employees who are appointed pursuant to section 8 of the Act, whether or not they perform the same or similar work as that performed by civil servants
(classified service). Secondly, it states that those employees who meet the first requirement will form part of the unclassified service even if they do not qualify under groups 1, 2
or 3 of the regulation. The effect of the addition of the new category is dramatic. Whereas earlier groups (a) (b) and (c) contemplated temporary, non-recurring or seasonal types of
employment, now it is expressly stated that there can be an appointment to the unclassified service even if the employee is performing the same work as classified employees. Since classified
employees in the public service perform permanent work, it follows that an employee performing similar permanent work can also be
11 appointed to the unclassif ied service. The employer can appoint an employee to do the same or similar work as the employees in the classified service, regardless of whether or not
the employee is doing temporary, nonrecurring or seasonal work as contemplated by the first three groups in section 6 ( 1 ) , provided only that the appointment is made pursuant to and
in compliance with, section 8 of the Public Service Act. In dealing with the requirements of section 8 of the public Service Act, the Board stated at pp.16-18: What are the requirements
in section 8? First, the appointment must. be made by a Minister or a designated public servant. Secondly, the appointment must be made in writing. Thirdly, the appointment must be made
to a position in the unclassified service in any ministry over which the Minister or designee presides. And finally, the appointment must be for a period of not more than one year on
the first appointment and for any period on any subsequent appointment. We can find nothing in section 8 limiting appointments to the unclassified service in any other way. While there
is a limitation of the duration of the initial appointment to one year, there is nothing in section 8 limiting appointments to certain types of positions only. Section 1 ( i ) of the
Public Service. Act defines "unclassified service" 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. On plain reading, this definition also does not appear to suggest that positions in the classified service are limited to those not part of the government's permanent
operation. There is no doubt that the grievor's appointment meets the requirements of section 8. There is no doubt also that the grievor's appointment fits into t h e fourth group in
section 6 ( 1 ) even if he performs the same duties as classified Systems Officers, as he claims he does. Nor is the appointment in conflict with the definition of unclassified service
in section l(i) of the Act. I n Beresford, the Divisional Court concluded that there was no conflict between section E of the A c t and
12 r e g u l a t i o n s e c t i o n 6 ( 1 ) which t h e n c o n s i s t e d of o n l y 3 groups. We cannot see any c o n f l i c t between s e c t i o n 8 and t h e f o u r t h group
e i t h e r . The A c t i n t h e d e f i n i t i o n o n l y focuses upon t h e s e c t i o n 6 ( 1 ) of t h e r e g u l a t i o n . I t f o l l o w s t h a t h i s appointment t o
t h e u n c l a s s i f i e d s e r v i c e w a s proper. Section 9 of t h e P u b l i c S e r v i c e A c t s t a t e s : 9. A p e r s o n who is a p p o i n t e d t o a p o s i t i
o n i n t h e p u b l i c service for a s p e c i f i e d p e r i o d ceases t o be a p u b l i c s e r v a n t a t t h e e x p i r a t i o n of t h a t p e r i o d . Under t h e c i
r c u m s t a n c e s , and as a r e s u l t of t h e f o r e g o i n g f i n d i n g s of t h e Board, under s e c t i o n 9 , t h e g r i e v o r ceased t o be a p u b l i c s e r
v a n t upon t h e e x p i r y of h i s c o n t r a c t on A p r i l 1, 1990. It follows t h e r e f o r e t h a t t h e Board h a s no j u r i s d i c t i o n t o deal w i t h t h e
present g r i e v a n c e and a c c o r d i n g l y it is h e r e b y dismissed. W e n o t e t h a t a l t h o u g h S i n g h is d a t e d a f t e r P a r r y , t h e l a t t e r case
w a s a p p a r e n t l y n o t b r o u g h t t u t h e a t t e n t i o n of t h e Board i n S i n a h . A case decided a f t e r Parry but before S i n g h is P o r t e r , 428/90 etc.
( B r a n d t ) dated November 1 2 , 1991 (which case d i d n o t r e f e r t o P a r r y and n o t referred to i n Singh) The Board, i n Porter, a r r i v e d a t t h e same c o n c
l u s i o n as t h e p a n e l s of t h e Board i n S i n g h a n d P a r r y . The P o r t e r case i n v o l v e d a p r e l i m i n a r y o b j e c t i o n by t h e employer ( p .
6 ) : 'I ... t h a t t h e g r i e v o r h a d n o s t a t u s t o g r i e v e e i t h e r t h e ' c o m p e t i t i o n ' g r i e v a n c e or the ' d i s m i s s a l ' g r i e v a
n c e as s h e w a s n o t a m e m b e r of t h e classified service."
A t pp.8-9 of t h e P o r t e r case, t h e Board i d e n t i f i e d t h e p r i n c i p l e i s s u e before it: However, t h e i m p o r t a n t issue b e f o r e t h e Board is w
h e t h e r as a r e s u l t of 0.Reg. 1 2 9 /8 9 , a n amendment to s. 6 of R e g u l a t i o n 881, most of i f n o t a l l of t h e r e s t r i c t i o n s placed by Beresford on
t h e power t o a p p o i n t t o t h e u n c l a s s i f i e d service have been removed. 0. Reg 1 2 9 /8 9 adds a f o u r t h g r o u p of employees t u t h e classes of employees
t h a t may be a p p o i n t e d p u r s u a n t t o s. 8 of t h e P u b l i c S e r v i c e A c t . T h a t g r o u p is d e f i n e d as c o n s i s t i n g of employees: i ) who are
a p p o i n t e d p u r s u a n t t o s e c t i o n 8 of t h e A c t , whether or not t h e d u t i e s performed by them are, or are similar t o d u t i e s performed by c i v i l s
e r v a n t s , and ii) who are n o t employees t h a t b e l o n g to Group 1, 2 or 3. A t p.11 of t h e Porter c a s e , t h e Board s t a t e d : " I n o u r o p i n i o n t h e r
e can be l i t t l e doubt t h a t , assuming f o r t h e moment t h a t O.Reg 1 2 9 /8 9 does n o t c o n f l i c t w i t h s. 8 of t h e P u b l i c S e r v i c e A c t , t h e appointment
of t h e g r i e v o r t o t h e u n c l a s s i f i e d s e r v i c e was a v a l i d o n e . " A t pp.13-14 of t h e P o r t e r case t h e Board s t a t e d : It is w e l l r e c
o g n i z e d that d e l e g a t e d l e g i s l a t i o n must be interpreted i n t h e light of t h e e n a b l i n g s t a t u t e . ( S e e , for example, R. v s l a t e r Steel
I n d u s t r i e s Ltd,, 1971 1 O.R. 760 ( O n t . C t y . Ct. However, t h e Board must also r e f r a i n f r o m g i v i n g tje language of t h e r e g u l a t i o n a c o n s t
r u c t i o n which it cannot r e a s o n a b l y b e a r . I n t h a t r e g a r d w e are u n a b l e to see how O.Reg 1 2 9 /8 9 can be c o n s t r u e d i n t h e manner s u g g
e s t e d by t h e u n i o n . S p e c i f i c a l l y , Group 4 is to c o n s i s t , i n t e r a l i a , of employees who do not belong to any of t h e f i r s t t h r e e g r o u
p s . S i n c e t h e f i r s t three g r o u p s d e f i n e a k i n d of r e l a t i o n s h i p which is t e m p o r a r y i n n a t u r e it a p p e a r s e v i d e n t t h a t O.Reg
129/89 w a s i n t e n d e d t o comprise employment r e l a t i o n s h i p s which are n o t t e m p o r a r y i n
1 4 nature. To construe O.Reg 129/89 in the manner suggested by the union would be essentially to ignore it. At p.15 of the Porter case the Board stated: It happens that, at the time
that the Board decided Beresford, section 6 of Regulation 881 defined the appointing power in those terms. However, there is nothing in Beresford or in any of the other cases in its
wake that state or suggest that the Lieutenant-Governor in Council could not expand upon the groups identified in the Regulation. This is the first case in which that question has been
raised. The Board concluded at pp.15-16: The Cabinet in its wisdom has chosen to deal with the kind of problem presented by Beresford by broadening the basis upon which appointments
to the unclassified service could be made. Insofar as section 8 of the Public Service Act does not, on its face, purport to limit such appointments in the manner suggested by the union,
we see no conflict between it and O.Reg 1 2 9 /8 9 . Accordingly, we are prepared to give it full effect and declare that the appointment of the grievor to the unclassified service is
"proper. I' At p.16 of the Porter case, the Board rejected the union's argument that: ... the employer could not rely on O.Reg 1 2 9 /8 9 since it did not purport to appoint the grievor
to the new group established under that regulation. We are unable to see merit in this submission. Nothing in either the Public Service A c t or the Regulations requires that the form
of an appointment to the unclassified service designate specifically the particular group into which the employee will fall. All that s. 8 of the Public Service Act requires is that
t h e appointment be "to a position in the unclassified service". Whether that appointment is valid will depend on whether or not it meets the requirements set out in the regulations.
There is no b a s i s for reading into the Act or regulations a further formal requirement identifying the group into which the employee falls.
15 The Union relied on Levoie, 441/94 (Keller), dated January 31, 1992, which dealt with the issue before us, and where the Board reviewed the Parry case, which it disagreed with as
being manifestly incorrect and did not follow. After reviewing the previous Board decision of Beresford, Brissette and Parry, as well as the submissions of the parties, the Board concluded,
at pp.12-15: The power to appoint to the unclassified service comes from Section 8 of the Act. Section 6 of the Regulation can do nothing more than flesh out the Act it can not expand
the statutory provision. In our view the proper approach to take is the one that was taken in Bressette, supra. In that decision the Board s a y s , in part: The second issue is a broader
and more serious one than that of interpreting the collective agreement. The authority of the deputy minister to appoint to the unclassified service exists in the Public Service Act
section 8. The Beresford panel found that it is not an unlimited power. At page 14 it interprets section 8: "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 basis, there must be something about the job in its initial
conception which distinguishes it from the normal "permanent" position in the unclassified source." The limitation therefore appears to find its source in section 8 of the Public Service
Act. itself. The Regulation appears only to flesh out the terms of that limited power. There does not seem to be any open-ended residue of power of appointment remaining in section 8.
The existing regulation at the time of Beresford appears to [exhaust] the general scope of the appointment power. However, the panel in Hicks in fact used subsection 3 0 ( 3 ) to "read"
Regulation 881 in such a way as to substantially change the appointment power in section 8 of the Act as it had been defined by the Beresford panel.
16 Obviously, subsection 3 0 ( 3 ) cannot be used to expand the appointment power beyond the statutory mandate in the Public Service Act. The Beresford language defines the statutory
power to appoint to the unclassified service as something "distinguished from the "normal" "permanent" position in the classified source." Apart from the question of the proper techniques
for "reading down" of statutes or regulations a constitutional law doctrine, there is legal authority for the Board to use subsection 3 0 ( 3 ) to expand the statutorv authority of the
deputy minister. Furthermore, I add that the bargaining parties cannot through the collective agreement expand those statutory powers of appointment. Only the Legislature can change
the Public Service Act. Flowing from the above, we must conclude that in both Beresford and Bressette the Board was saying that an appointment to the unclassified service must be of
the type that distinguishes it from the "normal" "permanent" positions in the classified service. In our view Group 4 appointments, even though wider in nature than those in Group 1,
2 , or 3 nevertheless are equally restricted and the addition of the Group can not, of itself, expand the meaning of Section 6 of the Act. It can create a new category of appointments
which must continue to be, as stated in Beresford "distinguished from the "normal" "permanent" position in the classified source". The Board in Rressette stated that the parties could
not in the collective agreement expand the statutory powers of appointment. The same holds true for the employer. It can not expand the statutory powers of appointment indirectly through
the Regulation. The latter must conform to the Act and not vice-versa. Thus it is our conclusion that Group 4 does nothing more than expand on the types of appointments that may be made
to the unclassified service but can not be said to negate the previous decisions of the Board that have defined the scope of s.8 of the Act. The end result, then, is that an inquiry
must still be made to determine the nature of the appointment as that will determine whether it is properly a s.8 appointment or not In the instant case neither of the grievor's appointment
fall properly within s.8 of the Act in that he was not employed or appointed to meet temporary staffing requirements. He was, as submitted by the union, "used to meet the continuous,
ongoing staffing requirements of the institution. Some of his hours may have been irregular and for some weeks he may have worked less than full time hours, but throughout his employment
he was
17 meeting permanent employment requirements not temporary ones". A s a result we have the requisite jurisdiction to inquire into the merits of the grievance. There may be other cases
dealing with the same issue decided by other panels of the Board, however, the only other case that was brought to our attention is the recently decided case of Justus, 879/91 (Knopf),
dated March 16, 1992. In that case, Porter and Parry are referred to but not Lavoie and Singh. At pp.7-8 of the Justus case, the Board noted one of the positions of the union: The Union
further urges that the Board's recent decisions in Porter and Parry are "manifestly incorrect" because they obliterate the difference in substance (permanent/temporary) between the classified
and unclassified services" and that they essentially use Section 6 of the Regulations to improperly expand the Minister's power of appointment under Section 8 of the Public Service Act.
Again, it was stressed that the power to appoint to the unclassified service comes solely from Section 8 of the Act as "fleshed out" by the Regulations, but only the Legislature can
amend Section 8. Reliance was again placed on Berssette at pages 17 and 18. It was argued that if Parry and Porter were now followed, the Board would be departing from its earlier jurisprudence
in Beresford and a "jurisprudential "mishmash" would follow akin to the earlier Beresfoyd/Milley and Hicks internal Board confusion. We were referred to the Divisional Court's decision
in Dupuis, unreported May 8, 1990, that advises this Board to adopt a "manifest error policy" in approaching decisions of earlier panels. The Union contends that Parry and Porter are
"manifestly in error" and that the Beresford line of cases ought to be followed. In Justus, the Board set-out the import of the case law that had become well settled prior to the amendment
to the Regulation creating Group 4 . Vice-Chair Brandt's analysis commencing at page
18 3 of the Porter case is set-out, commencing at page 11 of the Justus case. The Board in Justus noted that the Parry decision dealt for the first time with the impact of the enactment
of Group 4 type of employees into the Regulations (at p.13). In responding to the union's submission that the Board consider the Porter and Parry decisions to be manifestly wrong and
to depart from their analysis (the union, requesting that the Board return to the Beresford approach), the Board stated, at pp.16-17: ... But it must be recognized that at the time the
Beresford decision was released and the cases which followed upon it, Section 6 of the Regulations provided what the Board and the Courts came to recognize as an "exhaustive" definition
of the power of appointment to the unclassified service. In other words, if the nature of the appointment was not such that it fell squarely within the confines of Section 6 of the Regulations,
the appointment was declared to be not properly within the unclassified service. This was largely due to the restrictive wording of Section 6 itself. The enactment of the amendment to
Section 6 creating Group 4 fundamentally changes the "exhaustive" or restrictive nature of the definition to a broader, potentially openended concept which would include any employee
who would not fit within Group 1 , 2 or 3. The Board, in Justus, then went on to deal with the union's concern that ' the amendment to the Regulation creating Group 4 'expands the Minister's
power of appointment under Section 8 of the Statute. The Board went on to state, at pp.17-20: Mr. Ryder's and the Union's concerns about the Porter and Parry decisions quite understandably
focus on the language in those decisions that suggests that the amendment to the Regulation creating Group 4 "expands the
19 Minister's power of appointment under Section 8 of the Statute." As R. v. Slater Steel, supra, tells us at page 763: For some time it has been the settled policy of legislatures to
confine its efforts to the task of laying down general principles of law and to delegate to subordinate authorities the power of making regulations for the purpose for settling the details
of the procedure necessary f o r giving effect to general principles. It is trite law that, if a power exlsts by statute to make regulations, that power must be exercised strictly in
accordance with the provisions of the statute.... These regulations, however, must be within the principles of the Act itself. If it were otherwise the Legislature would serve no useful
purpose in our democratic process. Halsbury’s Laws of England, 3rd edition, Vol. 3 6 , page 493, para. 745, states the principle of interpretation to be followed in interpreting statutes
and subordinate legislation: The overriding principle in the interpretation of legislation made under powers conferred by statute is that it should be construed in light of the enabling
statute generally and, in particular, so as to be consistent with its substantive provisions, at any rate where it is not authorized to repeal or amend them, and otherwise in conformity
with the terms of the enabling power. Clearly, the regulations cannot repeal or amend the enabling legislation. The Porter decision reviewed these principles and concluded that the regulatory
amendment did not amend Section 8 of the Act because nothing within the Act limits the duration of appointments or requires them to be limited in duration But Porter and Parry suggested
that the Minister's powers had been expanded. The Union's frustration with this conclusion is based on the fact that it seems in conflict with the conclusion in Beresford that indicated
that the language in Section 8 was significant: ... there must be something about the job in i t s initial inception which distinguishes it from the normal "permanent" position in the
classified service. (Page 14)
20 Yet, that same panel in the Beresford decision continued its analysis by mentioning that a more persuasive interpreting factor was that Section 6 of the Regulations set out various
fixed term type of appointments. It is further to be recalled that when the Divisional Court considered the Beresford/Milley issue, it also saw Regulation 6 as an interpretive guide,
"elaborating upon and perhaps defining the unclassified service to which Section 8 refers." It is therefore clear that the Regulations can aid in the interpretation of, but not amend
Section 8 of the Act. What then is the effect of the creation of the Group 4 category? This Board came to recognize that Groups 1 -3 all have a "temporary" nature to them by virtue of
the time and sequential references throughout the section. But Group 4 then allows that anyone not within the Groups could fall within Group 4. This effectively broadens the concept
and eliminates the elements of similarity and/or the "temporary" characterization of the unclassified appointments. Thus, we have to ask whether anything in Section 8 of the Act confines
unclassified appointments to a concept of a "temporary" nature as the Union wishes us to accept. It does at the outset by requiring t h a t the first appointment may only be for one
year, but it specifically allows that "subsequent" appointments may be for "any period". This allows the Ministry to appoint people to unclassified service for "any period" whether it
falls within the frames of Groups 1 to 3 or not. But Section 8 does also demand that the appointment be for a designated "period". It does not allow for openended, unlimited or permanent
type of appointments the unclassified staff. Otherwise there would be no purpose to the language "for any period on any subsequent appointment" [emphasis added]. The period of the appointment
is a critical component to the appointment itself. Thus, we see the amendment creating Group 4 may eliminate the "temporary" nature of appointments that was recognized in the Beresford/Milley
cases which relied upon Groups 1 to 3 for their interpretive guide. However we recognize that Section 8 contemplates a fixed period nature to an unclassified appointment. Therefore,
we conclude that the Group 4 category has affected the definition of unclassified service in Section 8 by removing the temporary and time constraints contained in Groups 1 to 3 previously.
The Minister's powers may well have been "expanded" but not beyond their legislative
2 1 bounds if properly applied. The Croup 4 addition does not go so far as to remove the legislative requirement that the appointments to the unclassified staff remain of a periodic
nature, albeit that the fixed terms may now be longer than before. Thus, it is with great respect and great reluctance that we must declare that we consider the Porter analysis overstated
or to be manifestly wrong where it concluded that: It is impossible to read into Section 8 a requirement that appointments be for jobs which are limited in duration. This panel finds,
in Section 8, the requirement that the "subsequent" appointment be for a "period", but that the nature of that period or term is not limited as it previously was to the time restrictions
set out in Groups 1 through 3. This interpretation preserves the distinction between the status of classified and unclassified staff that is apparent in the nature of the bargain between
OPSEU and the government throughout their collective agreement and that was so ably pointed out by Mr. Ryder in h i s argument. It recognizes the permanent ongoing nature of appointments
to the classified or civil service as distinct from the limited appointments and employment claims of the unclassified staff. This interpretation also seems logical in light of the newly
negotiated Article 3.15.1 that allows, effective April 1, 1991, that if the same work is being done in the job for two years there remains a continuing need for that work to be done
on a full-time basis, the position will have to be recognized as within the classified service and duly posted and filled as a vacancy within the classified work force. This is a sensible
balancing by the parties of the right of the Ernployer to make contractually limited, yet long-term unclassified appointments, but checking it with the requirement to acknowledge a situation
where a full-time permanent position exists i f the need for the works continues beyond two years. At p.21.of the Justus case, the Board concludes: Where does all this analysis leave
the grievor, Ms. Justus? In order to determine her case, we must look at the substance rather than the form of her appointment. Notwithstanding the fact that the form of her appointment
stated that her contracts were "Group 2" type of appointments, both parties acknowledge that it is the substance and not the form of her appointment that is
22 22 determinative. A l l panels of this B o a r d h a v e consistently looked beyond the form of the appointment to determine whether or not the appointment was valid or not. The question
of whether the appointment is valid depends on whether or not it meets the requirements set out in the Regulations. Our conclusion above obviates the need to embark on a Beresfod type
of analysis as to the "nature" of her appointment in order to decide if it was of a "temporary" or permanent nature. However, it is only fair to note that we would have concluded that
h e r role of filling in for others over her tenure in the department was consistent with a proper type of unclassified appointment. But in any event, on t h e facts of this case, as
set out above, we are persuaded that the grievor does fit within Group 4 of the Regulation and as such was properly appointed to the unclassified service. Thus she has no status to pursue
a grievance complaining about her termination. Having considered the submissions of the parties and reviewed the authorities submitted by them we agree with Vice-Chair Knopf's analysis
and also conclude that: the Grievor in the case before us was properly appointed to the unclassified service; that the preliminary objection is allowed and the grievances declared inarbitrable.
We would only add that with the release of a number of decisions with respect to what is essentially the same i s s u e , it is difficult to know how the Board is to apply the "exceptional
circumstances" test set out in Blake, 1276/87 etc. (Shime). Also, given the fact that the Board is interpreting statutory provisions, the circumstances of this case create a salutary
opportunity to avoid having to decide that a particular decision of a panel of the Board based on the interpretation of a statute is to be followed
23 even where its conclusion is thought to be wrong but not manifestly so. We have been advised that the Parry case is now the subject of judicial review, and that other applications
are expected to follow with respect to some of the other cases referred to. In the circumstances, it is unlikely that a decision involving the issue dealt with in the above cases is
likely to go unchallenged pending the decision of the court on any application for judicial review. In the circumstances, there would appear to be some sense in holding all cases that
are likely to be affected by the decison of the court in abeyance pending a decision which, it is hoped, will settle the question. If this is not done, a great many hearings will take
place without any final resolution being arrived at until the court has finally dealt with issue. Dated at Toronto this 4 t h day of June, 1992. "I Dissent" ( d i s s e n t to follow)
D. Wintermute -Member D. Montrose -Member