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HomeMy WebLinkAbout1990-2192.Canate.91-06-27 DecisonMay 1, 1991 e 2 The grievor claims that she has been unjustly d seeks reinstatement with full compensation and appo Classified Civil service The Employer takes the there has been no Loss to the grievor and is not e remedy ssed she This matter involves the recurring issue befor settlement: Board of the non-renewal of a limite appointment The grievor her employment in a Go-Temp employee meaning that she was assign employer through agency. on July 10, 1989, employment with the Ministry of Financial Institi Unclassified service as a Clerk whose contract of E to commence on July 10 1989 and empire on October had four subsequent term appointments ending an Dece each of her individual contracts stipulated that sh 36.25 hours per week, The Union asserts that her p contining position and that she ought to have been Classified service with the duties she performed be: we were informed by the Employer that the work the grievor was that of a clerk which was in the natu work such am filing, sending out faxes delivering m secretarial work that was being performed In 1990 five secretarial positions posted and filled a *--PI_- e commenced I, there were d it became December 31, 1990. The grievor did not apply the posted vacant positions, The Union submits that she is a clerk and not a secretary The Union argues that when it became known to that the work performed by the grievor was of a cont it had an obligation to post the positiono and glace classified service. This issue has been addressed by a number of occasions In Beresford, released on 1987, the Baord ruled that the grievor in that case properly appointed to an unclassified postion section 6 of Reg, 881 made under the Public Service A did not, however, proceed to fasion a remedy thi to Milley, a decision of the, Board released Ma accordingly the Union submits that because the conceded that the grievor had been improperly appo unclassified service that the Board ought now to, direct that she be placed on the classified serv becauee her position has become redundant that she pursue her rights an4 benefits under the Collective a classified employee As stated earlier the Employer cnocedes that Reg. 881 had not been complied with and that the gri improperly assigned work in the unclassified se he Employer uing nature within the he Board on ovember 12, ad not been i nted to the inter alia ce list but e allowed to agreement as ection 6 of vor had been vice Tho Beresford and Milley cases dealt with the situation at the rime when only three groups of employees were be appointed to the unclassified service, Since B Milley were released, Regulation 881 has been amende a fourth group and it is appropriate at this point Section 6 of Reg, 883: 6. (1) The unclassified service consi of employees who are employed Under individ contracts in which the terms of employment set out and is divided into, (a) Group 1, consisting of employees ar e employed, for providing temporary he for fewer than fourteen ho per Week or fewer than n full days in four consecut weeks or on an irregular on-call basis, (v) during their regular scho college ox university vacat period or under a operative educational train program: (iv) (b) Group 2, consisting of employees are employed on a project of recurring kind, (i) for Fewer than twelve consecutive months and for fewer than, 5 (A) 36 hours gar week where the position, if filled by a civil servant would be classified as a position requiring 36 hours of work per week, (B) 40 hours per week if filled by a civil servant, would be classified as a goof tion r equip ing 4 o hours of work per where the position week . for fewer than eight cons ecutive weeks per year where the contract of the employee provides that the employee is to work either 36 hours per week or 40 hours per week Group 3 consisting of employ appointed on a seasonal basis fo period of at Least eight consecut weeks but less than twe consecutive months to an annua recurring position where contr provides that the employee is to either 36 hours per: week or 46 ho per week; group 4, consisting of employees, (i) who are appointed pursuant section 8 of the Act, whet or not the duties performed them axe, ar are similar duties performed by ci servants and I... 6 (ii) who are not employees that belong to group 2 2 or: 3. O. Reg. 24/86, 5. 3(1), part; O. Reg, 129/89, s. 1. REVOKED: O. Reg 24/86, s. 3 (I), part No person who occupies a position in classified service shall be employed in unclassified service, except with the appr al of the commi ssion 4) No person employed in the unclass service shall supervise the work of pe employed in the classified service excep the approval of the Commission R.R.O. 5 (6)--REVOKED: O.Reg. 24/86, s. 3 (2) (7) Nothing in sections 7 to 61 applies employee appointed to group 1 of unclassified service. R.R,O, 1980 Reg Reg. 881, s. 6 (3,4). s. s. (7). notwithstanding the addition of Group 4 the Emplo s. 6 had not been complied with and we therefore the amendment had not 'been in place when the engaged by the Employer. In any event, the Emp on the amendment in presenting its case. Basically, the grievor is requesting that s surplus list in the classified service which will of rights that would not otherwise be available of placing employees on the classified List ha a number .of occasions in previous Board decisi 7 a union grievance involving OPSEU and Ministry resources, released on March 25, 1941, involved three whom the Board found occupied positions of an ongoin therefore ordered that tho positions be posted. At pa decision the Board bad the following to say: In our view, the jurisprudence of th Board clearly establishes the principle th having found the positions to be ongoing on with a particular government ministry, the Board has the power to order that they posted. That is the issue before us in th case, and we order that the positions question be posted in accordance with procedure mandated in the Collective Agreement t In th is determi 'natian. i is n on what or us to we are satisfied that the facts establish ongoing nature af the positions in dispu The union as it has done here is entitled bring grievance that the employer has fai Ea post a job where a vacany exists wh the grievances in the instant caae have be brought as a policy grievance by the union, are of the view that: in fairness to in issue they should ba entitled to comp fox them when the posting takes. gla Emphasis added. ] unclassified employees holding the positi in situations where employees have been imprope to the uncle ssified service, the 'issue has been raise employee then must have been appointed to the classi of Natural individuals nature and r ly appointed whether the i 8 this Lssuo was raised in the Beresford/Miilley case, the Board released on November 29, 1989. The Board stated at page 3 that a decidon of in that case In our view, this aannot be C counael for the Winiatxy argued, grievoxs were not properly appoi unclassified sezvice, it is clear Were not properly appointed to the sexvice. [Their emphasis 1 t In both the Beresford and Milley caflea the remedia$ mue was not; dealt wit91 but that isaue was later a Beresford/Milley Board. The Boaxd in Bezesfor tUt there must bs some middle gxound between classified status and this-appears by their 5 wUCh readss In our view,. there must be a mi which f~ implieit in the ealieativ We are quiak to acknowledge that w on to thin ice here. But what el when we are dcaZing wlth emglo neither: €ish nor fowl? The employed by the Midstzy, Th by the collective agreement, neither claseified noz unclass so theh xights eire not set cut express the agzeernant, Therefom,. Chaiw xighcs be inferxed from the provisions of collective agreement. And on page 9 in the Beresford/Mill following: C. .- I _... -. -. .-_. --. , - .-.. .... I I 9 However, in our view, we do not have authority to turn the grievors into classifie emgloyees. Appointment i s wi thin exclusive domain of the employer, pursuant section 18(l) of the Crown Employees Collect Bargaining Act, And, in any event it clear, as we have said that the grievors not properly appointed as classified employe and may never have achieved such an appointm if the positions they filled hod bean post If the positions had been posted, the griev might have applied but might have lost in' competition for the positions The remedial issue was also addressed in Wagne of the Board released October 27, 1989 In that pa requested that the grievor be considered a classifie the Board in that case stated at page 8 A close examination of the collect: Agreement reveals that: there is no such l fox part-timers so that remedy is impossi to award. Insofar as awarding pages 16 and 17: compensation, the Board in Wag -T-. ... he ed he to ve is re s nt: d rs he ed that the a decision icular case employee but ve st le r stated at ... In fashioning a remedy bo arbitration are attempting to give th the full benefit of his bargain, or him whole', Another way of express to put the grievor into the positio have bean In had the Employer acte But if a grievor has not suffered of a breach by the Employer there to award compensation where the establishes that he might be ha future, It may be appropriate t Employer to cease the offending put matters right in some fashio the intent of a declaration, which what is declared will henceforth a grievor is not entitled merely a breach of te Collective Agree Employer and then seek to reap There must on the balance of proba been a detriment to the grievor direct consequence of the breach detriment that this Board will remedy It is precisely the lack of any well characterize most if not all o detriment that strikes US in this case. types af grievances It is difficult to how the Grievor has lost anything as a res of managment’s unlawful action tf anythi she may have benefitted by it The Board in the Wagner case also directed its att issue of conferring status on an employee. At: pa decision it had the following' to say ... This Boaxd by itself has no jurisdict - to confer status That is an exclus management function We EM only order Employer to make an appointment, eit confer some status But if we were to or the Employer to appoint the Grievor to retrospectively or prospectively which wo .on ive the der uld ' a 11 classified. position, we would ordering it to make the posting or competition 60 [of the collective Agreement The Board was also concerned granting statue to the grievor The Beresford/Milley case vas appealed on judic the Divisional Court whose decision an Novemb unreported upheld the Board’s decision In doing stated that the Boards conclusion that it did authority to turn the grievors into classified e incorrect, The court also stated that it agreed with employee Accordingly, the statements in Beresfo Wagner to tho effect that: the Board does not have power to appoint employees to the classified s considers that remedy to be appropriate in the circ be deemed to be incorrect. However, each case must on its own particular; merits. In the instant situation the Union alleges tha has lost an opportunity to apply for a position tha had been performing for approximately one and one Having performed this position for that length of ti al review to r 26 1990 o, the court ot have the mp loyees was the, position d have. the e classified a particular d/Milley and the remedial rvice if it di I be considered the grievor the grievor half years. me she would 12 have been in a good position’ to have "a shot at i posted The Employer on the other hand, takes the was no position available, rather it was a bundle were partially included in the role of a secretar therefore there was no position available for the Union, on the other hand, states chat there was a p division whereby employees would arrive form an o called Go-Temp employees following which they wou limited term contracts and eventually have an oppor the job which they were performing posted whereby able tu apply for it arid usually be successful in the because they would have been performing those duties of time and would naturally be familiar with such d allowed these expectations to grow in the grie per ceived practice, the whet or not were suddenly dashed on December 31, 1990. The Employer on the other hand, submits the bargained for what she received, the Employer that anything would follow after the There were no pr had ended and that she had lost nothing as a conseq the employer wrote to the board stating that he hi that: suppor t the Employer s posl tion expectations does not provide substantive rights. had it .been ew that: there f duties that ‘s duties and actice in the side agency d enter into mity to have they would be r application ies Having r through a the grievor ises made by rm contracts nce counsel for located two hat loss of He enclosed ! 13 copies of the decisions. The Board then contacted invited him to make submissions on the decisions received those submissions the Board will cons decisions. The first decison is one of this E Erhardt file #576/90, seasonal employee who had worked every season fro That decision dealt with a including 1989 with the exception of the 1981 seaso was appointed as a shift supervisor at a golf court higher rate of pay than that of a golf attendant: normally worked since 1985 During the off season be 1990, the Employer discovered that during the 19 grievor had permitted his cousin and a friend to pla charge It decided to not re-hire the grievor supervisor but instead offered him a' position as a g which the grievor rejected. At the commencement: of the parties were in dispute as to who had the proce adducing evidence first The Union took the posit 'had transpired was, a discharge and therefore the Em] onus. the employer took the primary position that was an allegation of failure to recall and no Therefore, it was the Employer's position that the The Board dealt with the procedural during this hearing, The Board determined theat in Union to succeed in itts argument that the grie proceed first I Mr. Ryder and having now der the two ard entitled rievance by a 1978 to and In 1989 he which had a which he had ween 1989 and 9 season the golf free of as a shift olf attendant the hearing that what loyer had the the grievance discipline . Union was to question only order for tha or had been 14 discharged it had to show that the grievor had a leg relationship at the time of the Employer action, concluded in the Erhardt case that there was n employment relationship between the grievor and the E time the action was taken. The Board also considered the issue of reasonable and at page 8 had the following to say It is not difficult for the Board to that when the Grievor left at the end of 1989 season, given his past experience satisfactory 1989 appraisal and Mr McIlveen assurance he entertained the reasona expectation that he would be returning Lor 1990 season as shift supervisor However, t was the extent of his status an individ with a reasonable expectation of being recal to hi5 former job. He had no le relationship in the period pending realization of that expectation, Therefor he cannot be said to have been disciplined w the Employer refused to recall him fox the n season The Erhardt decision is distinguishable Prom situation in that the greivor Canste, had a legal with the Employer when the decision was made not contract Therefore, Erhardt is of! little assist Board. We were also provided with Ontario Nursing H with a discrepancy between funding that. nursing hom I __I. l empIoymnent The Board any legal loyer at the expecta tions rel ationship o renew her ice to this ne Assn, v. case dealt in Ontario 15 received under the Nursing Homes Act and Homes for are operated under the Homes for the Aged and R Homes Act. Nursing homes are administered by the Ministry of lth whereas homes for the aged are administered by the Minist and social Services. Nursing homes do not receive of funding as 'do the homes for the aged, Plaintiff the Government of Ontario provide additional fundir homes and one af its claims was that the province in and publications promised that care would be provided with the needs of extended care residence of nursing would be provided nursing homes. It was further this understaking had created legitimate expectation of the plaintiffs. Mr. Justice Holland had the fol with respect to legitimate expectations at page 380 The legi timate expectations doctzine part of the duty of procedural fairness. s Schmidt v. secretary of state for Home Affai 1969 2 Ch. 149 at 161, E19691 1 All E.R. 9 113 Sol, Jo. 16 (C.A.): Reference is Car Assistance Plan Act (British Columbia), E C.A., Hinkson, Lambert, Toy, southin and L JJ.A., June 15, 1990 [summarized at the doctrine is capable of includ rights: Attorney General [Hong Kong) v. Sh A.C.W.S. (3d) 1962 J expectations which go beyond enforceable LE far nursing s statements n accordance es and that sed that a ons far the nal staffing alleged that an the part owig to say is re : s 04 I ada C. gg 21 ng a l u, I- 1983 2 A.C. 629, [1983] 2 All E.R. [1983] 2 W,L,R, 735 (P.C,), The doctrine does not, however, imp a positive obligation on government: to nt substantive rights. The claims in the nursing homes case were dismissed While the evidence reveals that the greivor n resonable genuine, and legitimate expectation t eventually have an opportunity to apply for the performing, we do not consider it necessary to expectations in order to arrive at a decision. In grievor is, however entitled to a 'remedy for what for the following reasons In arriving at this conclusion we are conce remedy we may fashion is remedial and not punitive. for granting a remedy is based on the fact that th been improperly assigned to the unclassified approximately eighteen months. when it is determine assigned work far 36.25 hours per week during this clearly she did not fall within the unclassified se enumerated in s.6 of Reg. 881. Also Of importance is the greivor ws reappointed four times following appointment which, as the Union asserts is evid duties, whatever they were, occupied her attention o full-time basis. As in OPSEU and Ministry of Natu y have had a t she would ob" she was ely on these our view, the as transpired ned that any reasoning service for that she was period then rvice as then the fact that the initial nce chat her a continuing ral Resour ces is Of’ the lus list in collective ment within ons of the aining Act so ordered, assist the necessary / .