HomeMy WebLinkAbout1988-0088.Carson et al.89-06-22 · "~ ONTARIO ~ EMPLOYES OELA COURONNE.
~ ' · ' CROWN EMPLOYEES DE L'ONTAR~O
~"GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T~:LL~PHONE
180, RUE DUNDAS ,OUEST, TORONTO, (ONTARIO) M5G IZ$ - BUREAU 2100 (416) 598-06~8
0088/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
,. OPSEU (Carson et al)
.. Grievor
-and -
The Crown in Right of Ontario (Ministry of Health)
Employer
Before:
I.C. Springate Vice-Chairperson
D. Montrose Member
· . $. Nicholson Member
For the Grievort R. Ross Wells
Counsel
Gowling & Henderson
Barristers & Solicitors
For the Employer= V. Malgass
Staff Relations Advisor
Human Resources Secretariat
Hearing: July 27, 1988
.... ': '. -The: fouE'.,gmievors--wo.rked~,-for .,a ~,-number. of ,year.$ ,as.,ambul ance
:.' officers-' wi~;h~;he, Ot;tawa'.:,,-::Ca.rlel;on Reg'iona_l: A. mbu'l.an_ce-.~erv~ge.
-* .... tha~_~he. ,emp..1;oYeE [r~g'arded them~-:as -cQming, w:ith!n,~.be unq.~assi.fi~d
'" '~e'~.v'iOe.,. ,~heY weEe :emp],oyed pursuan~ ~.q 'a. s~r~es o¢ .fixed ,~r~
'-. ' ;d6n~nac~s, '-On Oc~ober,;16¢ 1.9'87 ~he 9rieyo~&~er~ advised'
'-'l¢98'8:~he~.wou]d-no~,be.,renewed., Each o(:'~he
¢ i~] e'd' sa. g r i'Svanc~ 4alq eg ~'n9 ' ~ha~-: h~. had.,.be~n :,d i.,s~haEged fw i ~h,ou~
. . · , , ~ ..- -, ,~ ~ ~i~. . ,
;"?'* "Se~ion-8'o¢ ~be,,Pub~1c SeKv,ice'Ac~ prov. ides.~ha~8 minister,
"~ m&y A~p~in~, a person :~oo~he unclassif.i.ed,,seFvice 'fg( a-spe¢i.¢ied
':' ~0'. be -a' pub1 ic 'servan~ at;~he~.expi ra~-ion, o¢; ,~be~ ~i¢e: period in
?-" ~qdes~ionV~rThese provi's,ions; nead::as follows: .',.>.. -a .?, .
8 (1) A minis&er or any Pu~li~ servant.who"is
¢.~,::L,'.deai.gna~ed-,in, wrfi.%in9 for,~he, purpose by, hfim .~a,X app,o4n~
for a peFiod of no~ more than one year on ~he firs~
-:appo,i.~me~,~ .'sad 'eoF..any 'peri.od. any, subsequen~ .
appoin~men~ a.'person ~o.a position ~ t~e unclassified-''
service in any minis%fy over which he ;pr~ides.,, .
(2) Any appoln~men~ by a designee under subsection
(1) shall be deemed ~o have been made by his minister.
@ A person who is appointed to a position in the- public
service for a specified period ceases to be a public
servant at the expiration of that period..
· '-The Board has held that when the 'contract' of,an' employee in
the unclassified, service is not' renewed, that perSon's.emp.loyment
ceases by Operation of Section 9 Of the .Public.,$ervice-Act,aDd.not
as a result of a dismissal.within the-meaning of Section,.18,(2.) of
the Crown Emoloyees Collective Bargainin~ Act. This reasoning has
le'd-t~e Board to conclude'that it lacks the jurisdi~ct, ion *to rule.
On the-merits of a challenge to the employer's decision;n9t,to
renew the contract 'of .an-employee in'the unclassi~i.ed service.
See: Shioley 0223/86 (Samuels), and the cases refeFred, to therein.
For the purpose cf.'these pro~eedi:ngs,.the union does not
,cha'llenge the Board's jurisprudence holding that an-employee in
tbs unclassified'service cannot grieve the_non-renewa,lc9~ his/her
contract. The union dbes,'however, contend tha~-,the gr.ievor, s were
not properly appointed to the unclassified service. The unign's
chal.]enge is not with r~spe'ct to'the'process-by which th~ gr~evors
were appointed to the unclassified service. It arises instead out
of the'union's content'ion that the,grievors-Were not 4ncluded
within any of the-gmoups whi.ch by regulation compri~sed.:the
unclassified SePvice. -'~ ~..
we understand the union to be taking the posi"l~i'on that because
the grievors were not properly wi h n.'the unclassified sergi~e,
they should, have been considered employees in tH~'"'cl'~asS'ifi:~'~
service and accQrding]y, en~it]ed to chal]eng~ th~ t'erm~n'ation'of
%he~r emp]oymen%. A~ ~he hearing un,on counse] s~ressed ~ha.~
~h~s s~age of ~he.proceed~ngs ~he un,on ~'s ~-seek~ng
determination On ~he en%~]emen~ of ~he gr~evo'~ '~%~' ~'~al'lehg~' ~he
employer's decision no~ ~e r~new'%he'~r .... ;~'"~" ~:-
'con~'rac~s. The un~ on
whe~hgr- ~he
gr~evors were p~oper]y appo~n~ed %o ~he"'~ncl~f~d
service For.
its.,p~r~, the employer take~ %h~ pos~ion that. the gr~evor~ '
properly came within the unclassified service, but e~'en
did not.,.'this does not result in ~he~'Hav~ng ~.r~ht'to
chal]enge ~he non-r~gewa] of their c0nt~c~s~
~his ~atter position, at the hearing-the employer d'
to the Boaffd initially addressing only %~e i~Au~'of'wH~her the
grievors were proper]y within ~he unclassified ~ervice.
O~awa - Car.lemon Regional Ambuqance Service employed sb'me' 60
.~]l-~me ambulance o~cers who were regularly schedu]ed ~o work
-40 hours per'week. The ambu]ance service, a]so. employ'ed' between 18
and.2~ .unclassified officers, wh'o it referred' ~ as P~r~-~i'me
officers. Had i% been the c~se..~hat~'he' fu~2~ime' Officers'~ were
,.always fi% and able ~o report for work, '~here 'w6uld'~6t
have been
any need for part-time officers. Be~aus~ of'absences d~e
vacations, i.llness, compensable injuries and the like, however, by
themselves the full time officers could not properly staff the
t' : ' '~ '?' " '7" '~f' " ',: .:"
ambulance service.
Prior to 1982 at least some of the part-time staff were
., . °'.. .. '- , .- ~2.. ..~
regulart~ a~signed to work set hours every week. In 1982,
however, the employer adopted a system whereby none of the
part-timers worked Set hours..Every Wednesday morning the
part-~i.me employees would telephone the ambulance servic~ to
indicate their availability during the following week. The
full-time staff would a]so indicate the times they would be'
~. · ~.~ .- -_ . , , ,';; .. . . ~, . .* ., ,. .
willing to work overtime. On Wednesday after~oons %he employer
Would contact the pa,ri-time office'rs to advise =hem' of"the hours
they would be working.the following week. The times in question
would be those the employer had been unable to fill with full-time
officers. Part-time officers could later obtain additional hours
by agreeing to fill in on short notice for full-time officers who,
for one reason or another, were unable to work their scheduled
sh i fgs.
Some of the part-time ambulance officers held dow~ Other full
, .:~ ~ ,~ .
time jobs. This limited theirr availability to work for the
ambulance service. Other part-time officers, however, Worked only
for the ambulance service. Between the hours'assigned to them ~on
the previous Wednesday and additional hours obtained'during the
week, these part-time officers Could put in a full work week.
When' =hey did so, they were nog-really ~orking" a~'
. basis a~ all. The major difference between ~m'~'~d t~ ~esu'lar
.-'~ F'. · '
, ... , .' . . '., ~ ',," · ~'.~.;. , ,
.. full~ime staff .was that ,they were no{ w~in9 reoular'ly':sch~auled
· '4 ~ s.. ~ :';- . ,.'Y - .. . q ::... , '~ ~,
shif~8.
~ha'~"'
.~r. George Oar~on, one of ~he Or,~evors, ~s~f~ed' he
a.fu]l-~me regular ~ob w~h ~he Bell Te~APh~n~"'OSmp~n~'~' He~
commenced working for the ambulance ~er~ic6 6A'a~'part~t~me"b~si~
in ~g62. When it w~s opera,ed by a p~i~ate'~r''"'sconcern.'~"~'''; He' s~'y.~6d on
with the service after i~ Was ~aken over
From 1974 to 1982 Mr. Carson worked for ~he ~mbulance service
and automatically '~epo~.~d'f~F' wor'k~'~n"tha~ day,
every Saturday
.~ . ,. ~: . ~ ,] ~; ,~,.'.- ~
A~. ~imes he also worked on other"~y~. F°~low~n'g 't~-introduction
...... '" :"'-: ...... ~' 2", 'Oarson ceaseo
~f t'he .Wednesday phone call ~ys~em in 198 M~". ~'" '~ ~"'"' " "
automatically work every ~a~rd'~y', Z~s~'ead'he was as'~f~ne~"hours
.... for the followin~ week b~sed on the employer's ~e~'~:;~d"hi
-.,: availability' A~endance records ~or Mr. Cars6fi wi~'re&p~c
32 weeks between March 1987 ,~nd january 1~88 'we~e~'~iled-at ~he
~" '~ ~ ~ ~ t~,.. : .-~-. '" ' "~':
... hea~ins. These records do not indicate any patteP ~ fie 'hour
..- worked by Mr, Carson. Duri~9 seven of {~e' wee'ks~he did nOt'.'work
i. . ~' .. .
.. at All' When he did Wonk, i~ was for anywhere ~rom "five td 32 and
.:a. hal: hours. Only durin~ 12 of the w~eks-di'd he woYk :'n exces~
of ~4 hours.
Grievor Carson Chouinard was on Vacation at the time of the
hearing and accordingly was not called as a witness. Mr. Carson
testified that.Mr. Chouinard's work history was much the same as
his own, except that Mr. Chouinard tended to work more hour~-than
he. We were provide~ with records showing the hours W~rk~d by Mr,
Chouinard over a 4~.week ~eriod between March 1987 and Januar'y
1988. During this time there were four weeks when Hr. Chouinard
did not work at all, He worked for varying amounts of ~ime during
the~remaining.we~ks, from 12 ~o 45 hours. Mr'. Chouinard worked
over..14 hour~ during '30 of the 46 weeks, although on]y d~ring 16
of these weeks d~d he Work more :hah 24 hours.
The 9rievors S:ephen Phillips and P~erre Lake both c~mmenced
work'~ng for the ambu]ance service ~n 1982. Neither h'ad any o~her
fu]]rt~m~ employment, On Wednesday ~hey wou{d te]epho~e :~e
'ambul..ance service for work and also take on addi:~°na] hou/s as
:hey.became ava~]able. They genera]]'y worked'a relatively full
work week. We were provided with Mr, phi]3~ps'.a:tendahce record
for a 44 week ~er~od. During 26 of those, weeks he wbrked '36 or
more hours. He worked fewer :hah 14 hour~ on on]y, :hre~
occasions, w~:h another three weeks being taken off aS vacation.
Mr..Lake's experience was s~m~]er, [na 46 ~eek period,"during 26
of the weeks he worked for at 3east'36 hours. H~. Lake worked
fewer :han 14 hours during on]y two of the weeks, with anothe? one,
week being taken off as a vacation.
it ~as .worded"'a% the time of th& ev~nt'~ gd,,v, ing rise to ,these
proceedings described the following three groups of employees who
made UP the-'uncl'as¢if.ied, Service:~o,
~(1 ) ~he ,u~clas¢ifi. ed .service. consimts ~of~.emPloyees
? who are.,~ploye~ pnder.qndiv.~¢uaq.,contrac.ts dn which the
~erms of employmen~ are set ou~ and is divided into
(a) Stoup ~, consisting of employees who are employed,
· '~,,., ('~;!)," 4'8 a:.pr~fessi¢p~!~.oC 9~b~ spec~n~.~cnpaci~y,
the commission in accordance wi~h its program
,.,,-,. -: (.iv,)., fqr fewer l~b~n,.¢our~een hour~-pef.week
fewer ~han nine-full days in four consecutive
.,*",so ..-': ~..~,wegk~ or on-.~O irregular...o~son-¢all basis,,
· university vacation period or under a
.:: J-L : ....;cg%op. erati%~educationa;1 'training. p~ogra~;,:
(b)"G~oup'2, consisting of employees whO are employed
' ,:.. on a.pro~ect-:o¢ a.recur~ing kind~; ~ :~ .... -
. . :. ~. -. (.~),-.,~.~r..~w~r. th~n;-,%welve consecu~ive,.moo%hs .and
¢o.r fewer than,
-:.....,.., ,.. . ,..
(A)36-{/4 hours per week' where the
.. - . ,.; ,. .... pos%t~oo ~.-.i ~..f..i,~ l~ed, by. a ;c~.vi -1..s~rvant,
would be classified as a position
requiring 38-1/4 hours of work pemcweek,
(B) 40. hours per week where the posi%ion, if
filled by a civil servant, would be
., '~. c~assif~ed ~as..~-pos~ion?requi,r~.ng 40
hours of work per week;
8
(ii) .for fewer than eight consecutive weeks per
year where the contract of the employee
','provides'that the'employee is to 'wdPk'
either 36-1/4 hours per week or 40 hours
· , .... per .Week; ~ ' , , .,.. ,,~ · ; ',
(c) Group 3 consisting o¢ employees appointed on a
seasonal basis for~a per.iod'6f'at ]east eight '-
consecutive weeks but less than twelve consecutive
months to an annually recurring position where the
contract provi~es'that;'the'emPloyee i's to work
"either 36-1~4:hOurs' per'Week ~r.'40 h6grs p~r"Week,
2n a number'o¢'prior aw&rd§~-mO~ notably Beres¢ord, 1429/86
(Hitchnick), ~he Bba~d conClu~e~:~at an individual employed
pucsua~t-to, a:'¢ixed'-~erm bon~ract;, but Who on'an on-goffng basis
continued to be. regularly schedQledtO work the same hours as
other.employees',' did not come'within.~y'o¢ ~he.groups which
according to-Regu4ation~881 comprised the-unclassified service,
The employee ~ontends that the reasdning adopted 'in those awards
does not apply in the'instant-c~se,'-In' particular, the employer.
con~ends that since the grievors were on cal~ and their hours
work irregular, they came squarely Withi.n Group 1'(iv) o¢ the
unclassified service, The. UniOn dispu~e~'that the grievors were
on call, It-submits that while the. g~ievors' hours o¢ work were
irregular, thei. r' emp'loyment could not be said to have been
i rregul~r~ :' ,-.
We note at-the outset that we~do not v~ew the.grievors'as
having been employed on an on-ca~l basis. The term on-call is
make ~hem~elves availabie ~E~'e' dalled into'Wohk i¢ an'd ~heh'
re~uJred. Tha~. is ~he in,er'predation' ~he b~*~e~ h~ve' g~ '~h
On-call. [n ~he ins~an~ case ~he gFie¢Or~ w~ulS:a~
~he~se]ves avai]~b]e ~o receive suoh calls, or ~ha~ ~hen
~hey ~ere under ~n obligation ~ acoep~ (he'~¢¢e~eSr¢ork. The
attendance .records filed by ~he'em6~oyer'~t ~h~ he, ring e¢'~abl'ish
that'the grievors were no~paid f~r being on'ca"~;'::~'r'''''
6roup I (iv) of the unc,am~',f.~
Regulation 881 as consi~%ing of'emPloyeeS work'i~g Ce;~r than 14
hours per week or fewer than nine' full daY's 3n ~four consecutive
weeks, ~s wel+l :hose working on an i'rregu'lar~ o~'"~n'-c~ll b~sis. As
indicated above, Mr. Carson worked less ~had 'IZ'rH6~'~s' d'~ing 20 of
32 weeks during ~he per.iod of Narch 1987 ~o'Ja~6sEy ~.~8~,. His
" work was irregular in ~he sense ~ha~ the number of hours he worked
varied~considerably from we~k to week Z'~ t~ese"~circ:umstances we
conclude ~hat Mr. Carson generally Corkedfewer'~h~n"{4';hours per
week and also that he worked on an irregu, l~r basis" Z~ T611ows
%hat Mr, Carson .did come within one'of ~he groups' listed, in
Regulation 881 ~s comprising ~he unclassified service.
The situation with respect, to Mr. Chouinard is somewhat more
difficult. Mr. Chouinard generally worked in excess of 14 hours
per week, although less than 24. The hours he worked were
irKeg¥1ar, not only in terms of when he worked, but the number of
hours worked each week. On balance, we are satisfied that the
term.."irregular" accurately describes Mr. ChoUinard's emplo}ment.
'It follows that he also came within group 1 (iv) of the
unclassified service.
This brings us to Mr. Phillips and Mr. Lake. The times that
they worked were irregular in the sense that the two of them were
not scheduled to work on a regular basis. Nevertheless, on an
on-going basis both Mr. Phillips and Mr. Lake generally worked a
fu~l .~ork week. T~ey did so for over five years. In these
· circumstances it~cannot ~easonablY be said that they were employed.
o~ an. irregular basis. Given this conclusion, we are satisfied
.that neither Mr. Philli.ps nor Mr. Lake fit within one Of.the
groups.which according to Regulation 881 constituted the
unclassi~i.ed service.
This matter is to be relisted for hearing at the request of
either party for the.p~rpose of entertaining the final evidence
and subm4ssions of the parties with respect to the~issue Of
· ~
whether the Board has jurisdi'ction to deal with the grivances on.:
their merits.
Dated at TOronto, chis 22,nd day of June, 1989.
,.~ ~,/' ,.:','(j "~ V" ~ .... ~...,- .'~ ~:~ ~ -.,' '.;'
D. l~iontrose, Member
"I dissent partially" (Partial Dissent
attached
IN THE MATTER OF AN ARBITRATION
BETWEEN CROWN IN RIGHT OF ONTARIO
(MINISTRY OF HEALTh)-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
IN THE MATTER OF THE GRIEVANCE OF
PARTIAL DISSENT
Having read"the Award,: i find I concur in much of it, but differ
in one crucial aspect. The wording of Section 6 of Regulation
881 that this case turns on is:
6 .(1) Th'~ unclassified service .... is divided into
(a) Group 1, consisting of employees who are
em~)loyed,
* * * *
(iv) for fewer than fourteen hours per w~ek,
or fewer than nine full days in four
consecutive weeks or 'on an irregular or
on-call basis,
........... (emDhasis mine)
The operative word is "employed". This Board had to determine .~-.
upon what basis the grievors had been employed by the Ministry,
- Page 2-
not how many hours~ Per week they~ ended up working' in any given
pg_riod of .time.'~Therefore, I disagree with, the charact~erization
,:Bgted ~9n'~page~ 9 .2nd :par.~agraph ,. of the Award which emph~a_sizes the
time
work.ed ~by~ a .par.t~ic~u~l..ar employee: ~. .~"~ ~ ['~ ~,3. _ ~ ~ ;,..~
It seems to me that the Ambulance Service hired these grievers to
work on a continuing and regular basis to provide the required
service - without any reference to hours of: york per w.eq~k. .For
example, there~ was no-evidence that, at the time of being
employed by the serVice, they were being hired for 10 or 12 hours'
per week, or any-such number which would mean they were going to
be employed for fewer than 14 hours per week.
The fact that on a retrospective examination of records, certain
of the grievers turned out to wor__k less than 14 hours per we~k is
NOT what should be determinative of those grievers' status, It
is unfair to determine, long after the date of hiring, that based
on hours worked, any particular employee may end up in the
unclassified service group; such' status surely must .be determined
at the time of hire based On the type of e~ployment being offered
to a prospective employee. If such is true, then all 4 g~ievors
in this case were employed on the same basis, in the same type of
employment, to fill the same needs in the Ambulance Service - and
all 4 should be treated by this Board in a similar manner. All 4
should be declared to belong to the classified service by virtue
- Page 3 -'
employed by the Ministry to regularly prcwide hours of work as
required by the Ambulance service and be' entitled to the rights
'and benefits cf the collec~ive a]reem~nt~' Therefore, I would
have declared that all 4 grievous ~0uld p~oceed to have the
merits of their discharge grievance heaDd .by th~'Board~
All of which is respectfully ~uhnitted,