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HomeMy WebLinkAbout1988-0340.Mitchell.89-12-07 ~ ' ONTARIO EMPLOY~:$ DE LA COURONNE ~ CROWN EMPLOYEES DE L'ONTARIO ,~. ** GRIEVANCE C,OMMISSION DE SE'R'LEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG IZ8-SUITE 2100 TELEPHONE/T~LL~PHONE 180, RUE DUNDAS OUEST. TORONTO, (ONTARIO) MSG 1Z8- BUREAU2100 (416) 598-0688 340/88 IN THE MATTER OF AN ARBITKATION Under THE CROWN EMPLOYERS COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Mitchell) Grievor - and - The Crown in Right of 'Ontario " (Ministry of Community and Social Services) Employer Before: J. W. Samuels Vice-Chairperson J. Solberg Member D. Daugharty Member For the Grievor: H. Law Grievance Officer Ontario Public S%rvice Employee~ Union For the Employer: S. Patterson Counsel Ministry of Community and Social Services Hearing Date: September 25, 1989 2 Another walk down a well-travelled road. The grievor was engaged by limited-term contract to work from January 18 to March~31, 1988 at the Prince Edward Heights Facility in Picton, an institution for' the developmentally handicapped. She was a member of the unclassified staff and there is no doubt that she was properly appointed as such. At the end of the term of the contract, it was not renewed. The grievor claims that, in fact, she was dismissed and that her grievance can be put before this Board. The grievor's substantive concern is that management was acting in bad faith. The grievor had been a full-time classified employee at the Facility for fifteen years, and had resigned in 1986. She returned to the Facility under the terms of the limited-term contract already mentioned. It is her understanding that management .refused to renew her contract because of a grudge about the circumstances of her resignation in 1986. This Board has made it clear in the past that we do not have jurisdiction to entertain this kind of grievance.. In Shipley, 223/86 (Samuels), the Board reviewed the jurisprudence in some detail. It is not necessary for us to restate all of what was said there. In brief, an employee who is engaged by limited-term contract is hired pursuant to section 8 of the Public Service Act, and pursuant to section 9 of the Act, ceases to be a public servant at the expiration of the term of the contract. There is no contractual right to the renewal of the contract. We said (at page 3): This Board has power to deal with problems arising out of the contractual relationship between the employees and the employ/er. But we cannot create a contract where none exists, and we cannot fashion remedies to deal with the failure to enter into a contract. Our jurisdiction comes from the Crown Employees Collective Bargaining 3 Act .... and the collective agreement between the parties. And it does not matter if the failure to renew is tainted by "bad faith". In ShipIey, the Board went on (at page 8): An unclassified employee has no contractual right to renewal of his contract, Why would it matter if the failure to renew was "tainted by bad faith" (whatever that would mean in the circumstances)? This Board simply has no jurisdiction over non- contractual problems, except for the three matters mentioned in sectiOn 18(2) of the Crown Employees Collective Bargaining Act. Section 18(2) of CECBA gives the Board jurisdiction over three type. s of grievancemimproper classification,, appraisal, contrary to governing principles and standards, and discipline or dismissal without just cause. The employer's failure to renew.a limited-term contract does not fall within any of these three areas. '. The reasoning in Shipley was followed in the recent c~ase of Healey, 485/88 (Fisher). Counsel in our case argues that, in fact, we are faced with a dismissal. But we do not agree with him. "Dismissal" involves the termination of a period of employment. Where an employee has an on- going relationship with the employer, and this relationship is ended, that is a dismissal. It is critical for "dismissal" that there be an on-going relati6nship, the duration of which is shortened by the employer's act. .Here, there' was no on-going relationship. The grievor had a ]timited4erm-contract. Even if the grievor had some expectation that she would be able to enter into another contract after the expiry of her first limited-term contract, by the terms of her contract, her legal relationship with the employer was to end on March 31~, 1988, The 4 employer did nothing to shorten the period of the relationship. The Ministry did not terminate a period of employment. No act was necessary for the relationship to end on March 31, I988. The limited-term contract, which the grievor entered into freely, created a legal relationship between the grievor and the Ministry only from January 18 to March 31, 1988. The Ministry had no legal obligation towards the grievor with respect to any period of employment beyond March 31, 1988. There being no "dismissal" here, we lack jurisdictiOn to entertain this grievance and therefore the grievance is dismissed. Done at London, Ontario, this 7th day of December , 1989. amuels, Vice-Chairperson ~~-<~'2%/~....) (Addendum Attache(l) J. Solberg, Member D. Daugharty, Member Addendum from: Janet Solberg Union Nominee Re: OPSEU (Mitchell) and The Ministry of.Community and Social Services (File Number 340/88) This case provides yet another illustration of the inequitable treatment suffered by contract employees.. The situation is demeaning and exploitative. Having said that, I find I must reluctantly concur with the Board's decision. The plain meaning of Sections 8 and 9 of the Public Service Act leaves little alternative.