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HomeMy WebLinkAbout1987-1868.Dafoe et al.89-06-23 ONTABIO EMP£O'f~;S DE LA COURONNE CFIO WN EMP£ 0 YEE S DE L 'ON TA RIO ' GRISVANCE COMMISSION DE SE'TI'LEMENT R~=GLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO M5G ~/Z8-$U,~TE 2100 TEt-EPHONE/T~L~.~HONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO'/MSG 1Z8- BUREAU2100 (416} 598-,068a 1868/87 IN THE HATTER OF AN ARBITRATION Under ... THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Dafoe et al) Griev°r - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: ' " T.H. Wilson Vice-Chairperson F. Taylor Member A. Stapleton Member For the Grievor: A. Ryder Counsel Gowling & Henderson Barristers & Solicitors For the Employer: N. Eber Counsel 'Hicks Morley Hamilton Stewart Storie gearings: March 1, 1988 May 5, 1988 -- August'24, 1988 August.26, 1988 The grievors vere seasonal employees in the barg~q unit in the su~er o~ 1987. All were qiven one week's no~zLce and thel~ contracts ~erm/nated effec~ve September ~1, 1987. They all cla/m ~hat they were hired on the ter~s 'that there would be a m/n/mum of 20 weeks of work and cl'ahn-that ~,.~hey are entitled co be co~t~nsated for the seven weeks of e~loyment which they were denied. The union argues ~/~at ~he grievors-could not have their con~'ac~s prematurely term/na~d because it was not a release w/thin sub- sec'/on 22(4} of the Public Service Ac~ and in the case of the proba~lor~-y grtevors i= would be on the facts an ~roper ter~Lnat/on as an exercise of Ar~Lcle 2.23 o~ the collective agreemen=. The union also arcjued ~hat there was an estoppel. Those various provisions provide as follows~ Public Service Act, R.S.O., 1989 c. 418 22. (2) A depu=y minis=er ~ay fo~~ Cause remove from wi~houz salary any public Serva~= i~ his minis~'y for a period no= exceeding one month or such lesser period. · as the regulaCions prescribe. (3) A depu=y minis~er ~ax. for cause dismiss from e~ploy~= /~ accordance wlCh Che reg~la=lons any ~ubllc servant /n h/s (4) A deputy ministry ~ay release fro~ employment in accordance wi~J~ ~.he regulations an~ publlc servant where he considers t ~ necessary .,by reason of a shortage' of work or funds or =he abollC~on position or o~her ~a~erial change in organization. (5) .A depu=y ~tnis=er say release fros ~1o~ an~ publlc serva~c during ~he ftrs~ year of his for failure ~o mee~ the requtre,aenCs of bls pe$1gion. - 2 - Article 3.33 of the collective agreement provides. 3.33 Seasonal employees who have not completed their probationary period may be terminated by the employer at any ti~e with one (i) week's notice, or pay in lieu thereof. Section .18-(2) of the Crown h~mploFees Collective Barqalninq Ac___t is also relied upon by the Union.. 18 (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (c) that ha has been disciplined or dismissed or suspended from his -employment without Just cause, say process such matter in accordance with the grievance procedure provided in the collective agreement, and fa/ling~ fina/ determination under such procedure, the matter may be processed in accordance wi th the procedures for final determq__~ation applicable under Section 19. [Section 19 provides for reference of differences to arbitration before this Board].' The collective agreement' also provides for a probationary period ~ · for seasonal s~aff, · 3. i8 The proba~ionary period for a seasonal employee shall be two (2) full periods of seasonal employment, of at least eight (8) consecutive weeks each worked in consecutive years in the same position in the same ministry; 3.20.1 Seasonal employees "who . have completed probationary period shall be offered employment in their former positions in the following season on the ~. basis of seniority; 3.20.2 Where the EmploFer reduces the m,mher of s~asonal employees prior to the expiry date of employment specified in the contracDs of employment, seasonal employees in the same position shall be laid" off in reverse order of seniority; - 3 - The Board was also referred to Xn Sections 3.16 and 3.1 of the · collective agreement. 3.16 Sections 3.17 ~o 3.35 apply only Do seasonal e__~p, ioyees;, and 3. i The only terms of ~his AgreemenZ ~ha= apply ~o employees who are not civil servants are ~hose ~ha= are se= ou= in =his Araicle. There are six grlevors. They were Xna group of about 30 seasonal employees hired by the H~nis~y of Natural Resources for crews working in the woods in eastern Ontario. All six grXevors testified. The first of these was Rick Knapton who gave de~ails of ~he work involved. ';'K~apton has a diploma 'from Sanford Fleming College in forestry technology. In 1987 he worked on a contract with the H/nistr~ as the supervisor of a tending crew of seven which worked out of the Napanee. office. That crew's first funct±on was chemical tending. After that, they did pruning of red and white pine trees, meaning " manual cleaning (weeding) and tree assessment. In 1986, Knapton had been the supervisor of a three person crew which did chemical tending for nine weeks. This was also an operation out of Napanee. Knapton had also worked in 1984 with the Hinisl:ry, when'he was a student, in a project called Environment 2000 which operated out of Brockville and involved assessing poplar hybrid clones for frost, insect and disease d_~_._~__ge.. In 1985 he worked in ~he. private sector. His account of the manner in which h'e was hired in 1987 was a 'followsJ he was working in April 1987 at the Six Nations Reserve at 0shweken, Ontario, near Brantford. The band was the employer and he was the project manager of a progr~ in which the basics of forest __~_~__uagement were taught. His con~ract would have ended in December 1987. He received a telephone call from $~eve Pitt, a Resource Technician 3, who works out of Na~mnee for ~he Ministry of Natural Resources. Pit: told him that there was .all kinds of money and there were enough ~unds for 30 weeks and possibly 37 weeks. It was basically %he same type Of work as he had done in 1986 for the M//~s~ as a supervisor o~ a tending crew. Knap~on them arranged with the Six Nations Do leave with a few days 'notice. He packed up and moved to Kingston. He had acceD%e~ Pit%'s o~er ~or %r~rious' reasons. It was a higher' paying Job than ~hat with the Six NaZlons. The 30 weeks would expire at the 'end of October and his fiancee lived in Kingston. On April 8, 1987, Knap%on signed'a contract with the Ministry enti%led, "Appointment ~o Unclassl~fled Staff Group 3 SeasOnal." The s~rt date on the writDen contract is 08/04/87 and the expiry date is 30/10/87. The 'comparable rate was R.T.2 and the name written in ~he Position Specification space was Resource Technician Foreman. It showed his previous employment with the Minis~.ry as being from 07/04/86 ~o 30/05/86 wl~h Group I or 2 S%atus and rate comparable to an R.T.1. For this 1987 period it was marked Group 3b (Pension Option) 4 months or more. On the back of the contract are 12 printed Tezm~ and Conditions o~ ~loymen%. The Mlnl~ relies in-par~icular on the 12th, 12. End of _D~...~Ioyment by Minisra7- although the end of your current season's employment with the Mlnisr.~y is specified in this form. If :he Minis~rF wishes to discontinue your current season's employsent prior to ~his date, it will provide you with at least one week's noodle except when terminated due unsa:isfact~ry ~erformance or misconduc=. Knapton testified that he took Pitt's statement as a promise of 30 weeks because he had said 30 to 37 although Pitt had not used the work "promise." The grievor has' worked for Pit% in 1986, The parties acknowledge that Pitt is within the bargaining unit but the Ministry concedes that he had the au~hority at the %tree to hire the grievor. The work which he performed while on contrac~c was at Na~anee and some also was done out of Tweed. He did che~cal testing (spraying at the base of trees), ...m~_nual clearing and white pine weevil, cleaning. Most of the work was done on priva.~e land. Altar ~he termination of'his contract, Knapton went on a l;rogram under s. 38 of the Unemployment Insurance Act; he received his Unemployment Insurance cheques and ~cheques from the' township - some of this work was in Tweed and somewhat less in Napanee .... That work was all on Crown lands except for some plantation assessment. The grievor, Paul Wentworth, lives in Napanee and. he worked for the Ministry of Natural Resources in 1984, 1986 and 1987. In 1986 he s~arted on A~ril 7 and his contractl expired on May 30. He was a manual labourer with a chemical tending crew. On A~ril 1, 1987, he received a telephone' call from Pit% who sa~d there was some tending for manual labourers, it would be 30 weeks, poss/bly 37 weeks. It was star~ing on A~ril 13. At the time, Wentworth was working part-time with the Brewers Re~all in Na~anee and that was providing steady work. Under their ~ollectlve agreement, he had qualified for a ~ull-time ~osition 'and was just wairzhng for an opening. After his discussion with Pitt, he de6ided to take.the tending ~ob. He has a diploma in forest ~echnology from' Fleming College. In croSs-examination, Wentworth testified that Pitt had expressed a guarantee of 30 weeks - "Yes, he said 30 weeks for sure and possibly more i~ ~he¥ had the money." - 6 - The 1987 season was the first time' that Brett Lawlor worked for the Mlnistzy. At the ~/me Pitt called, he was on lay-off from construction work. He had expected to be recalled for that season (April ~o Christmas) DO %he construction work and in fact turned them down because of the Mlnistrf work. He had applied Do the Ministry. He signed a contract similar to those signed by the other grievors. Howard Gray also worked on the Knap~on crew in 1987~ He had also worked for the Ministzy in 1986 and 1985. Barry Dafoe started on con%tact with the H~nistry in 1980 and each year ~hrough 5o 1987. Each season was shorter than the previous. One of these years was straight warehouse work. In 1987 he was hired on for cold storage in April where he worked for about eight weeks and Pitt told him there was 30 DO 37 weeks with a tending crew. He joined the tending crew in May. It was not ~until 1987 ~hat he learned that - he had only 600 days of seniority as a' result of being switched between the various seasonal groups. Although these are marked on his 1987 contract, he testified that he did not know what these different groups meant and if he had known he would have challenged it. Finally among the grievors, Tom Kennelly testified that he. began working for the' Ministry of Natural Resources on February 18, 1987. He was in fact w6rking for Office Overload and on contract in the Ministry warehouse at Napanee. His contract exPired on the Friday before the begir~ing of the seasonal contract. Steve Pitt had told him early in March ~hat there would be seasonal work. At the {ime, this Grievor also had a night Job with Tercennitlal Ho~e f~r the Handicapped. He was told that the Ministry contract would run un~%l the':6nd o.f ocDober, possibly into December, and as a result two to three weeks into the Ministry job, he quit his night work with Tercennit~.ai. Steven Pitt has worked for the Ministry at the Napanee unit since 1980 a~d has been a Resource Technician III since 1983. His responsibility is Do g~t the work done ~hat is assigned Do his office. To do this he either hires crews or contracts out the work. He is a member of the bargaining unit and testified under ~ns on behalf of..the Ministry. The decision whether Do do the work with crews or by contracting the work out is conm~nicated to him by his immediate supervisor, jack f~urra¥, the operations supervisor. He testified that the indica~ions Do him in 1987 were ~hat he was to 'hire a crew of five or six Do accomplish the work Icad. They were looking at a 30 week length. He was told to hire a crew, to get the work on the wa¥.~a~,d that he needed a crew early in ~he year for chemical tending around the begi:nning of April. Pitt testified that he spOke'Do Knapton on the telephone. He told KnapDon that he had some tending work like '86. He wanted Knap~on for crew boss. He told him the rate, the description of the job and the duration of the contract. He testified that he probably would have indicated in the vicinity of 30 weeks. He had no recollection of prom/sing 30 weeks because he was not in the position to do so. He s~ated at ~he hearing: "You can't be 100 percent certain of time in my experience with the Ministry.' In fact, his recollection of the exact conversation with Knapton and the other grievors was very general. Pitt was bold ~ha~ there was funding available Do hire a certain number of people for 30 ~o 37 weeks. The reason for the other seven weeks was that there was an indication that there might be more work and he was Do line up hectares for the work to be done. The 30 week work was to be chemical tending until 150 - 200 hectares were completed. They would 'then switch to weevil cliDDing. That would be held off until the cooler weather in September. He learned officially on the 8th of September that the crews would be laid off and. that any work completed after termination w~uld be done through the private sector. In Napanee ~he work was by con~ract although there may hav~'~:~en some survival assessment under section 38 of the Unemployment Insurance Act. He test±fled that if the grievors had continued on instead of being terminated they would have done that work and there probably would have been enough ~o carry them through until end of October. william Hagborg is the Forest Manager Su~ervisor. and reDorts".to the Dis~ric~ Manager l~ Tweed who reports ~o the Regignal Director in Kempville who in turn re~or~s ~o the Assistant Deputy Minister South. Hagborg's responsibility is ~o oversee the implementation of the forest _management program for the Twe'~'~~ and Napanee Districts. . Napanee and Tweed were administratively separate for forest m~u~agement but are now combined with the forest management s~rvisor in Tweed; there is still a district manager for each of game, fish and forestry. The Tweed District Manager has control over fores~-~y management. Hagborg made the decision in 1987 on how many tending crews would be hired when the tentative b~dget allocation for Tweed District Fores% Management was received on March 25. According to this tentative budget, he had a total' of $502,400 in the base budget (provincial ~unds) for "B" Salary (1. e.' for ~nclasslfied staff). Based On the money and the n,~he.r of hectares to be done, he looked for four %ending crews, 16 resource technicians, one clerical staff and some foresters and he decided to use T~hree crews in Tweed and one in Napanee.- each crew had five men and a - 9 - foreman. In Tweed, the land is .both Crown and private land while in Napanee it is mostly Crown land. Based on the amount of money, he decided the contract would run from early April until the end of October. He gave this informa~ion to Jack HcMurray the Forest Operations Manager. Around the end of JulF, in the course of a discussion with the regional director, he learned tha~ the "B" dollars would be reduced. Hagborg explained that {ending crews had been hired until the end of October. They discussed the possibility of using some of the COFRDA money (federal funds). On August 4 a letter was sent "' by W.L. Va/1 setting ou.t that portions of the attached "120" forms [final budget] were to be completed and returned. They indicated that a salary award (increase) had occurred but there were no funds allocated for it. They got some addi~i~nai funds from other money in the Ministry but the money available for "B" salary was $258,300 so that when all the COFRDA (federal) money ($301,000) was also. added in there was only $559,300 available as compared to the %enta~ve ~oT~al budge% figure of $688,100 or a decreas~ of $128,800. In September it became evident ~hat they would have to look to shortening the .?' contracts and Hagborg so decided. He then wen% out with McMurray to meet with the crews and in effect give them oral notice. That was followed with written notice. "~/~er~ain options were sPelled out for the crews. One of these was under section 38 of the Unemmlovment InsUrance Act. This had been approved in middle July for four projects. These did no% require the use of any salary funds. The other o~tion was tending contracts and that also did not involve us/ng any #B" salary ~unds. In fact two s. 38 pro~ects were run in his district, one sponsored by a conservation authority and the other by a- -. municipality. - 10 - Some of the work that had been done by the crews prior to termination was later done under contract with private employers. The money for this came from "other" money under the budget. In the ~final budget, the reduction in total principal funds from the tentative budget figures was only $53,200 (see Exhibit 22: Appendix "B"). Bu{ $244,100 was transferred from salaries; of that, $169,000 had been lost by transfer to "other" monies in the final budget. Even with an additional $115,300 from CO~RDA (federal funds) allocated to "B" salaries there was a reduction of $128,800. It was Hagborg's u~dersta~ding that the decision to transfer $169,000 to "other" was made .in order to correct an error. That decision was made by staff in Head Office at ..Toronto. The transfer of funds from "B" salary to "other" determines whether -~ work is done. by unclassified contract employees or by pri'vate tendering. In recent years, the amount of work-being done by seasonal employees has been declining, and the amount done by private employees increasing. The Union's principal argument can be sum~_'_arized as follows.- the grievors were released and not discharged. That is governed by Subsection 22 (4) of 'the Public $ervice Act. 'In Leslie and Ministr~\of Community & Social Services (G.S.B. No 80/77), .this Board held that the terms "dismissV and '~elease" found in Section 22 of the Public Service Act involve different concepts and that clause 17'(2)(c) [now 18(2)(c)] of the Crown Employees Collective Bargaining Act does not provide for the processing of a release "in accordance with the procedure for final determination applicable under Section 18". The Board then went oh to say that the parties by subsection 27.6.2 [now 27.8.2] of the collective agreement have decided explicitly not to give this Board J~risdiction to review the release of an employee under subsection 22(5) of the Public Service Act. - 11 - The Release authority has two parts (1) lay-off (subsection 22(4)} and (2) probationary employees ( subsection 22 (5) ). The Public Service Act prevails over ~he collective agreement and the collective agreement prevails over the regulations enacted under the Public Service Act (see: subsection 30(3) of the Public Service Act). Therefore, argued the union where the collective agreement addresses termination by release under the Public Service Act, it must be lnter~reted as regulating and cooperating with that mechanism. If it goes beyond that, it is illegal; similarly any indl¥1dual contracts must also so be interpreted. Section 3.33 of the collective agreement applies to both release and dismissal. It is not a third release power, it simply provides that there shall be one week's notice.' Although not arguing at this hearing that the individual con,-acts with seasonal employees are Der se illegal the union argues that they still have to be compatible with section 22 of ~he Public Service Act. Although Mr. Ryder for the union did not argue that this. Board can review a decisio~ made by the employer under section 22, it was his position that this Board can determine in any particular case .whether section 22 has in fact been exercised. -The union sk~m/tted that in these cases before the Board, the conditions precedent to the exercise of subsections (4) and (5) of section 22 were not present. They require that there be either (1) a short~ge of work or (2) a shortage of funds or one of the other listed factors not relevant to our purposes. There was no shortage of WOrk; in fact some of the work earmarked for the. original crews was~ ultimately performed by private contracts and the rest was simply never finished. With regard %o funds through accounting changes, a total of $169,000 in the tentatiPe budget available for the seasonal employees con~ract ("B" salaries) was transferred in the final budget - 12 - tO the item 'other". *Mr, Ryder argued that this shows that there was no shortage of ~unds for the Tweed district. If the employer is relying 'on a shortage of funds criterion for the exercise of the power under subsection 22(4), it has a prima facie duty to bring forward that evidence and in this case failed in the attempt. The Board has the jurisdiction to decide whether a discharge is dis~uised as a release: ShemDard and Ministr~ of Government Services (GSB 2492/86) If it is a .discharge, Jdst cause is necessary; the employer does not claim to have discharged under subsection 22(5) of the Public Service Act. Mr. Ryder's second argument was %hat if he was wrong in the above argument and if .indeed section 3.11 in ~the collective agreement did give a right to release which is independent of subsection 22(4) of the' Public Service Act, ~then, there is still a necessity tO follow the administrative law rule ~ha~ such right must be exercised for a legitimate rea-~on and no% as a way of subverting the collective agreement rights of bargaining unit employees.. Da Costa and Ministry of Health (G.S.B. §70/84}. He argued that there had been no business or administrative Justification for the accounting change in mid-stream or to move tO private contractors that they have an onus to show why, and that the ~lmlng sequence creates a prima facie case that 'the switch was intended ~o defeat the newly negotiated collective agreement rights of seasonal employees. A legitimate government purpose must be shown: Meadow Park Nursinq Home and Service Employees International Union. Local 220 (1983), 9 L.A.C. (3d)137. Mr. Ryd~r°s third argument is an estoppel issue which I examine separately. '* S~ecifically called TCSS&E. - 13 - The Ministry's position in this case was that the grievors have no lay-off rights because they are all probationary employees under section 3.33 of the collective agreement. Section 3.1 indicates the only terms applying to non civil servant employees are set out in Article 3. Section 3.18 sets out the probationary period and subsection 3.20.2 contemplates separate contracts. Section 3.35 makes Article 27 applicable ~o probationary employees. Subsection 27.8.1 states that: "Any probationary employee who is dismissed or released shall not be entitled to file a grievance." " The employer argued that the onus is on the union to prove on 'the balance~ of probabilities that the collective agreement has been breached. Prior to the 1984-8~ collective agreement, seasonal employees had no job security: Furniss and Ministry of Natural Resources (GSB 602/86). Ms. Eber submitted that in fact the grievors are all probationary employees. If any of them are .seniority employees, %hei~ remedy or right is Do be found in subsection 3.20.'1 of the collective agreement and that is all. The Board's Jurisdiction is to be found in clause 18(2)(c) of the CECB Act see: Insanallv and Ministry of Correctional Services. (GSB 7/83). Dismissal is based either on misbehaviour or incompetence. In the employer's submission the grievor who has been terminated may rely on Article 3 of the collective agreement but not section .18 of CECB .ACt; see: Ambrev and Ministry of the Attorney General (GSB 429/84). The employer argued that there was no guarantee of the length of the work. Alternatively, the employer argued that there was no evidence of a lack of good faith towards the' grievors and there was no discrimination. The termination flows from the fact that the employer did not have the amount of money 1% originally believed l~ had and that shows a rational relationship between the facts and the term/nation. There was no agreement through 'collective bargaining %hat the employer would not privatize or contract out its work. An error was made and money was moved from "B" salary to "A" salary {classified), The decision to contract out and to privatize is a cabinet decision. An allegation of unfair labour practice would have to be brought before the Ontario Public Service Labour Relations Tribunal. The employer also argued that subsection 22(4) of the Public Service Act does not apply %o bargaining unit employees. 'It specifically provides "in accordance with the regulations." The relevant regulations are section 19 of Regulation 881. Subsection (9) of section 19 of Regulation 881' state s .. (9) This section does not apply to persons in the positions or classifications set out or described in Schedule i or to persons within a unit of employees established for collective bargaining under any Act: Therefore, argues the counsel for .the employer, we look to subsection 18(1) of CECB Act to find the power to release bargaining unit · '""' ':' employees. If the power to-release is .within subsection 18(1) of CECB Act, and we are concerned with seniority employees, and there are insufficient funds, ~he relevant provision in %he collective agreement i~ subsection 3.20.2. Alternatively, if '~e Deputy Minister exercises subsection 22(4) of the Public Service Act and releases seniority employees then he is not bound by subsection 3.20.2 of the collective agreement or if it does apply then the un/on must show they were not released in reverse order of sen/ori=y. In reply; Mr. Ryder argued that subsection 19(9) of Regulation 881 simply indicates that those section 19 procedures apply on1¥ to non-bargaining , - 15 - unit employees and not ~hat subsection 22(4) of the Public Service Act is inapplicable to bargaining unit employees. The procedures for the release of bargaining unit e~ioyees are to be found in the collective agreement a~d the individual contracts of employment. Subsection 30(3) of the Public Service Act. provides~ 30(3) Any provision in a collec:lve agreemen: that is in conflict with a provision of a regulation as it affects the employs of a bar~in9 unit covered by the collective agreement prevails over the provision of the regulations. Subsection 27.8.1 of the collective agreement is invalid. Every probationary employee has a right to 'grieve a' dismissal: Ambrey and Ministx7 of the Attor~ev General (GSB 429/84) at page 7 following Jo~ce and Ministrv of Attornev General (GSB 21/76). ' The first argument that I approach in' this case is the proposition put forward by ~e Ministry counsel that-the power to release unclassified staff is fo~d, not in the P~bllc Service Act s~bsection 22(4) but in subsection 18(1) of the CECB Act. It provides as follows.. 18(1) Every collective agreement shall be deemed to provide that. it is the exclusive function of the employer to manage, which function, wi thout liai ting the generality of the foregoing, includes the right determine, (a) employment, appointment, complement .~ ....... : .... orga~izatIon, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and iota=ions of equipmen= and classification of posl tions ; . . . and such matters will not be the sub3ect of collective bargaining -nor come within the jurisdiction of a board. As we see in subsection 18(2), clause (c) provides for a right of grievance in the case of being "disciplined or dismissed or suspended from his employment without just cause" What this represents is a statutorlly mandated management rights clause. In the private sector the employer and the union negotiaDe this clause. The private secDor employer's legal right to hire, release and discharge employees originally arises from his position as the ~. employer and may be modified by contract i.e. the .contract made between the employer and the employee. In the unionized sector, that right is then ' normally a power modified by negotiation between the employer and the bargaining agent and its common law terms modified into collective bargaining terms=--usually the dismissed right is subject %o Just cause and appears in the management rights clause of the collective agreement. In the case of the government, the original authority to hire or dismiss was the King's prerogative - later replaced by statuDe, in our case %he Public Service Act. The bargaining agent under the C~CB Act is prohibited from negotiating the _m__~_nagement rights clause., it is written in by the statute. It does not in my : --- -.-.opinion replace the-statutory authority under the Public Service Act. In the case of dismissal it modifies it by substituting "Just cause" and access to the grievance procedure with access Do t, he Grievance Settlement BOard. It is important to note that the CECB Act section 18 does not use the term "release." In m~ view, it does not even purpor~ to modify in itself the power DO release. And this is consistent with the Board Jurisprudence: see.. Re: :~;:]~,.$o¥ce (GSB 21/76) at page '20 quoted with approval in Ambre¥ and Ministrw of ~he Attozl%ev General (429/84) at page 8 and Leslie and Mlnistr~ ofu Communitv and Social Services 80/77 at page 12. This interpretation in my view is the correct one and ~r. Ryder's lnDerpretation of subsection 19(9) of Regulation 881 is also correct and consistent with the interrelationship of the Public Service Act and its regulations wi~h the _CECB Act and r-he collective agreement. The linch pin between the collective agreement and the regulations ~%der the Pllblic Service Act is of course s~bsection 30{3) of the Public Service Act. This Board derives its authority from ~he CECB Act and ~he collective agreement. Because the CECB Act, and the collective agreement are linked to the Public Service Act and its regulations, this Board' must inevitably, from time to time, e~_~mtue and interpret the Public Service Act and its regulations in the exercise of its Jurisdiction. In the cases before us ~he. termination of the contracts of the grievors was argued to purported exercise of the Deputy Minister's authority under subsection 22(4) of the Public Service Act. This Board has repeatedly held that it can decide whether a purported release is ih fact a release or a dismissal: see A~brey ~ at pages 6-11. This Board must decide whenever an employee grieves a .release from his employment whether he has been released or dismissed. The other variation is the term "termination" which appears in sections 3.12 and 3.33 ~f the collective agreement and arises in ~hat contex~.~..'~!n this 'regard I note Chairperson Knopf's statement in ~ at page 11: "... where no inappropriate or unsuitable conduct is alleged and the employment is ended, :he onus is on the employer to establish that there has been a bona fide termination. A term.~ation can .then be viewed as the ending of an employment relationship for reasons that are other than those resulting' fros the conduct of the employee." That is of co~rse referring to termination in section 3.12. The union here argues that the right of the government to "release" under subsection 22(4) is for our ~lr~oses restricted to a "lack of funds," that has not been demonstrated in evidence, and that section 3.33 simply supplies the procedure when those facts do exist in the case of probationary seasonal staff. Implicit in this arpument is that if there is not a Proper release, there must be a discharge, since those are the only ways the employment ca~ be ended. ~.veryone agrees of course that this Board cannot review a decision by cabinet %o switch from seasonal unclassified employees to private sector contractees. The evidence is indeed sketchy as to what exactly did happen. The funds that were available for seasonal employees in the tentative budget and under which they were hired was reduced - at least "B" salary, funds - were reduced in. the final budget and the contracts terminated prematurely. Hagborg understood that someone at head office had made a mis~ake in the tentative budget which was corrected in the final budget. But that is very poor quality evidence - even if it is correct. The Ministry adopted it in argument. Only the Ministry knows and that is all the evidence it produced. The evidence indicated only a s~a!l reduction in total funds, but a large transfer out of "B" funds. · The onus is on the Ministry to show how it arrived at the decision to release. It only showed that f~ds were. subsequently transferred. Just as in the situation of a purported subsection 22(5) release, so in a subsection 22{4) release the Ministry must show that the power was bona fide exercised i.e. /n our case it must adduce evidence to show that it bona fide exercised its right .to release for lack of funds. To put its case at its highest, it corrected an administrative" error when it had already earlier committed itself~ to contracts with the grievors and these contracts stated that funds were available. I am also satisfied on this evidence that Pitt created th~ belief in the grievors that they were going to get at least 30 weeks work. He had the authority to do so. He communicated his understanding to the grievors that there were sufficient funds for 30 weeks a~d indeed there were such funds in the tentative budge%. Then the appropriate "B" funds were withdrawn in the final budget. This raises two issues in my mind~ a) arbitrary conduct and b) estoppel. with respect to the withdrawal of~ the "B" funds, no explanation is given - only a whiff of hearsay %hat it may have been the correction of a budgetary error by head office staff but there was no other evidence to support this or to explain it. If the switch of funds after the hiring is unexplained, then there can only be an assu~.~tion of arbitrary decision making: it does not show that there was a bona fide shortage of funds. The issue is the same as the need for the employer to show that if it purports to exercise its power under subsection 22(~) of the Public Service Act to release from employment any public servant during the first year of his-employment for failure to meet the re~irements' of his position, the ministry must do so bon___~a fide and not as a disguised dismissal without Just cause: see Leslie and Ministry and Community Services(GSB 80/77) at page 13. Only the Ministry can show the Board that the ~ransfer of funds in this case was not an arbitrary and capricious ex~grcise of'its authority. It is not a heavy onus and we cannot review the reasons to say if they are good reasons, but there is review for good faith and a lack of arbitrariness. As for the hearsay evidence of a budgetary error, this Board does not normally accept hearsay and in any event this Par~ic~lar evidence is. so flimsy that it carries no weight. If we were to accept it, it WOuld add tremendous weight to the estoppel argument. An arbitrary or capricious exercise of a statutory power is generally considered to be an ultra vires exercise of that power and as such - 20 - void. This Board derives its Jurisdiction from the CECB Act and the collective agreement. If the purported releases under the Public Service Act are ultra vires, and therefore void, does that not turn them into unjust dismissals 'or otherwise deprive the employees of their rights under the collective agreement? . ~.ssentially that must be the issue from 'our point of view. Mr. Ryder argued that if the government does not bona fide exercise the authority it has under section 22 of the Public Service Act then it can not terminate the rights an employee otherwise has under the collective agreement. Looking at' ~he structure of the two statutes and the collective agreement~ I' find a cOmPrehensive system. A failure to exercise a. Dower of release legally under section 22 of the Public Service ~Act must mean that the ."cessation of- emPloyment," to use a comprehensive term, must then pass muster under the CECB Act and the collective agreement - and of course there 'is no argument made here of just dismissal. So the cessation or termination of employment also violates the CECB Act, clause 18(2){c) and the various employment rights under the collective agreement. The Ministry argued that probationary employees may not grieve a termina{~dn because of . subsection 27.8.1. That provision has been specifically held invalid see: Re Jovce(C~B 21/76), followed in Keeling and MT~C (GSB 45/78) affirmed on judicial review {Ontario Divisional~ Court (Mar 14, 1980)~unreported). The right to~'grieve unjust dismissal is given as a statutory right under clause 18(2)(c) of the Act and carnnot be abrogated by a clause in the collective agreement, furthermore, in my view that statutory right is a substantive right: see" by way of comparison under the Labour : Relations Act R.S.O. 1980 Re Toronto H~dro - Electric Systems and C.U.P.E. - 21 - . Local 1 (1980), D.L.R. (2d)693 (Ont. Dvl Ct) aff'd 113 D.L.R.(2d)512 n.(CA) leave to appeal for SCC re~/sed 35 N.R.210 n. A further issue in my view is the q~estion of the right to grieve lay-off. In the grievance forms, the grievors alleged unjust "lay-off." In this respect, I note that seasonal employees do have the right to grieve "improper lay-off under sec%ion 27.7 of the collective agreement. The alleged improper lay-off results not from being laid off in improper order of seniority but from being laid off without any .statutory authority for such lay-off. Although the usual complaint relating to a lay-off grievance under section 27.7 relates to seniority right, there is nothing in the language of Section 27.7 which prevents an employee .from raising any arguable grounds in griev/ng a lay-off. The employer argued that the rights of probationary, seasonal employees are to be found solely in section 3.33 of the collective agreement. In our cases, all the grievors did receive the one weeks notice. I was referred to Boucher and the Ministry of Correctional Services (GSB In 'that case this Board rejected the theory, that it could not go behind a Ministry's characterization of the cessation of their employment as a "termination". A~ page 9 Professor Pritchard for T.he Board writes.. "In our view, the Board's jUrisdiction extends at minimum to characterizing any particular set of fac~s surrounding the ending of an unclassified employee's employment relationship as a dismissal for cause within the ~eaning of section i7(2)(c) or a '"termination" within the meaning of Article 3.3 of the collec~lve agreement." And at page 10 - 22 - 'In conclusion, we have determined that our jurisdiction under section 17 and i8 of the Crown Employees Collective Bar~ainin~ Act extends at a minimum to hear and then characterize ~he facts surrounding the severing of the employment relationship of a member of the unclassified service as either a Termination within the meaning of Article 3.3 of the collective agreement or a dismissal for cause within ~he meaning of section 17(2)(c) of the statute. If the iai=er characterization is applied, our Jurisdiction will then extent to detarm~ne the merits of the claim that the dismissed was without Just cause. If the former applies o~r jurisdiction w~li be at an end assuming the requirements of Article 3.3 were met." Because the Ministry ~id not respond to the union's evidence, the Board concluded that it was a disciplinary dismissal and without ~ust cause. It is important to note here that the M/nistry's argument that notice under Article 3.3 [now sections 3.12 and 3.33 of the collective agreement] was s~fficient compliance was rejected. I agree, there must be a legal termination first. Once that occttrs, one week's notice is required. But neither sections 3.12 nor 3.33 create a power to terminate. The collective agreement does not create the power to terminate employment: it simply imposes a condition on the power .that: exists under the Public. Service Act by requiring one week's notice or. separation pay. If the power under s 22 of the Public Service Act has in fact not been exercised, section 3.33 of the collective agreement does not create it. The same issue apDlies to the term on the back of the individual contracts signed by the g~levors (paragraph 12). The Ministry cannot expand its statutory powers of release and termination ,by a separate contractual~ term...rTh~e. Deputy Minister's power to hire a~d release is governed by statute. This reflects the historical movement towards a professional public service. The union counsel declined to enter into a discussion in this case as to - 23 - whether within the context of collective bargaining, the Deputy Minister could enter in to an~ separate contracts with individual employees. Certainly the Deputy Minister cannot enter into a contract that is inconsistent with the collective agreement or exceeds his statutory powers. Paragraph 12 of the contract therefore can only operate when .it is exercised consistently with the collective agreement and the relevant statutory powers. From a point of view of contract interpretation, it is also interesting to note that the contact in question stated "Certiflc~tion certified that- 1. Funds are available and expenditure authorized." So even as a matter of contract law, if it wer__e applicable, the Deputy Mi. nister ca~ not release for later shortage of funds' having certified they were availabl~ for the contract term. Insofar as the collective agreement subsection 3.20.2 contemplates an individual "contract," in my opinion, such contracts, cannot permit .anything inconsistent with the icollective agreement or statutory authority. This brings me to the question of remedy. Since their purported release was void and their employment was terminated without just cause or without statutory authority prior, to its natural expiration at the end of a .minimum of 30 weeks, then clearly all the grievors suffered losses in pay and accumulating seniority due to .their premature cessation. That being the case, I need not decide specifically whether there was an estoppel. If I did, the representations by Pitt would certainl~ lay the basis for one and he was clearly the person identified by the government as the hiring agent. Furthermore, no evidence "was called by the employer to challenge that authority. I am also satisfied that all the grievors took up the Jobs with the understanding that they could be secure in that work for at least-.30 weeks - some even gave up other work. .- - 24 - Finally, I come to the issue of who was probationary. In as much as I find no obsLacles to the grievallces for any of the grievors who might be probationary, I do not need specifically to decide how the probationary period is calculated. To the extent that the remedies ~ay be' in dispute as a 6onsequence of that issue, I remit the matter to 'the parties to settle and in default of agreement, this panel will remain seised and decide the issu.e. Accordingly, this Board finds that the grievors' seasonal contracts of employment in 1987 were prematurely terminated and their employment rights breached in derogation of the C.~..C.'B. Act and the collective agreement. They are to be compensated for that loss of salaries a~d seniority. This panel will remain seised pending the implementation of this Decision. DATED at Toronto this 23rd day of Ju,e, 1989. /z"t'~':il;~: ; ,,.,, ,,...~ · : ~ ,, ·. / T.H. Wils6n, V~ce-Chairper$on . F. Taylor, Member~ A. Stapleton, Member .... ~m~ tm~u y ~l ~,ompl~ation r-orm Branch ,.:. Natural APPENDIX "A" ' Resources ................