The URL can be used to link to this page

Home My WebLink About1990-2401.Arellano.91-10-07 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TELEPHONE: (a 16) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIMILEITELECOPIE: (a 16) 326-1396 2401/90, 2402/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Arellano) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: B. Fisher Vice-Chairperson H. O'Regan Member I. Cowan Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE S. White EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING April 29, 1991 1 This is a termination grievance involving the non-renewal of a contract by an unclassified employee. The grievor worked at the Ministry for 2 relevant periods as an unclassified employee. 1) October 1, 1985 - October 31, 1988 on 12 continuous contracts as a Data Control and Edit Clerk. 2) January 23, 1989 - October 31, 1990 on 9 continuous contracts as a Data Processing Clerk. Originally the Union was claiming that the grievor was grieving both discharges, that is the one which took place on October 31, 1988 and the one on October 31, 1990. However as the grievance is dated November 5, 1990 it is clear that it is untimely in so far as it relates to the 1988 termination and therefore that part of the grievance is dismissed. The employer conceded that the first two contracts under the later set of contracts, namely the contracts which covered the time period from January 23, 1989 to February 28, 1989 and from March 1, 1989 to April 30, 1989 were inappropriate as the job as it existed at that point in time did not fall into any of the categories under subsection 6(1) of Regulation 881 made pursuant to the Public Service Act. In other words, the position should have been a classified one in January 1989. The balance of the contracts In the group, that is from May 1, 1989 to October 31, 1990 are justified by the employer as being appropriate under Group 4 in Subsection 6(1) of Regulation 881 (enacted on March 13, 1989) which reads as follows: "(d) Group 4, consisting of employees, (i) who are appointed pursuant to Section 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" 2 In the summer of 1990 the Employer decided that the position held by the grievor should be a classified one. Therefore a competition was held to which the grievor applied and was interviewed, however she was unsuccessful. Therefore her employment was not continued after the expiry of the last contract in October 1990. The Union's position is that since the employer now agrees that the January and February 1989 appointments were improper, we should compensate the grievor for her loss. The question becomes however,what was her loss? If the Employer had posted the position in January 1989, she may have been able to compete but only if the competition was not an open one. At that time she had no status whatsoever within the public service. Assuming that the employer had made the posting an open one, at best she lost a right to compete for the job in January 1989 as compared to actually competing for the same job some 18 months later. It is true that the job market may have been better in January 1989 than in July 1990 as the recession had not yet grabbed hold of the Ontario economy in the same way and therefore the grievor may have faced less competition if the posting had taken place in January 1989. On the other hand in January 1989 she had no on the job experience, while by the summer of 1990 she had the advantage of 18 months on the job experience. In our opinion, having 18 months of actual on the job experience at the time of the competition offsets any disadvantage of having the competition held at a time when the job market was somewhat tighter. In summary, although the grievor's position should have been posted in January 1989 rather than July 1990 the Grievor has not proven that she has sustained any economic loss as a result of the employer's actions. In fact, given that she did not succeed in the competition held in July 1990, it could be said that the failure of the employer to hold a timely competition resulted in a net economic gain to the Grievor as at least she had 18 months employment as a unclassified employee. As an alternative remedy the Union is requesting that we appoint the Grievor to the classified service but without a specific position. This would give her two substantial rights, firstly the right to grieve the competition which she lost and secondly to enable her to claim surplus 3 rights. The Board undoubtedly has the power to appoint a grievor to the civil service, as the Divisional Court has reminded us in their November 26, 1990 decision in Bersford/Miiley and Greco/Tarantino where Chief Justice Callaghan said in his endorsement "(the) Board does have the ultimate remedial power to appoint an employee to the classified service if it considers that remedy appropriate for a particular employee.N In this particular case however we are not inclined to exercise that power as we feel that the Grievor has not shown us that, on the balance of probabilities, had the competition been held when it was supposed to, she would have been successful. This is in keeping with the general proposition that the purpose of a remedy in a breach of contract is to put the innocent party in the same position they would have been had the contract not been breached. To now grant the grievor classified status with no position would be to put the grievor in a much superior position what she would be entitled to if she had lost a competition in January 1989. If that had happened she would have had no right to grieve the competition nor would she have been declared a surplus employee. In effect, she is in no worse position now having lost a competition in the summer of 1990 as opposed to having lost a competition in January 1989, for in neither case would her status have given her the right to either grieve the competition or be declared surplus. In fact, if the competition had been held in January 1989, she would not have even had the right to a file a grievance as she was neither a member of the public service nor a dues paying member of OPSEU at that time. Af the oral argument in this case, counsel for the Union provided the Board with a copy of Canete (2192/90 Simmons) in which the Board ordered the grievor to be placed on the surplus list in the classified service. Although this is not clearly stated in the reasons, part of the reason the Board seemed to exercise that power is because the grievor had been employed in the unclassified service as a clerk, but when the Employer finally posted the position, it was posted as a secretarial position. The grievor did not feel qualified to fill that position and therefore did 4 not compete in other words, the Employer did not post the same position which the grievor had occupied, thereby depriving the grievor of a real opportunity to enter the classified service. This of course is significantly different from Ms. Arreliano's situation where the Employer posted the exact same position which the grievor had occupied for 18 months. For those reasons, we feel the Canete case is distinguishable and therefore we choose not to utilize the same remedy. The grievance is therefore dismissed. DATED: at Toronto, this 7th a October, 1991. ARRY B. FISHER ELEN O'REGAN~� i CO