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HomeMy WebLinkAbout1988-0439.McKinna.92-07-13~- ONTARIO EMPLOYES DE LA COURONNE ~, ¢RO ~ ~P£ 0 ¥~£$ 0£ t 'ON TA RtO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2~00, TORONTO, ONTARIO. M5G 1Z8 TE~.EPHONEITEL£PHONE.. [4 ~6) 326.- 138.8 180, RUE DUNOA~ OIJEST, BUREAU 2100, TORONTO (ONTARIO). M5G ~Z8 FAC$tM~LE/T~L.~COP/E .. (4 ~6; 326-t396 439/88 IN THE I~TTER OF AN~RBITI~TZON Under THE CRO~N EHPLOYEE$ COLLECTIVE BARG&INING ACT Before THE GRIEV~CE SETTLEMENT BOARD BETWEEN OPSEU (McKinna) Gr~evor - and - The Crown in Right of Ontari° (Ministry of Transportation) Employer BEFORE= W. Low Vice-Chairperson I. Thomson Member D. Montrose Member FOR THE A.-Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE M. Failes EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING August 15, 1991 April 21, 1992 DECISION The Grievor, Elizabeth McKinna, was employed by tkie Ministry of Transport as an unclassified employee at the Ontario Highway Transport Board as a Typist 3. .She'was employed under a series of nine'fixed term contracts, the first of which commenced November 11, 1985, and the last'of which terminated April 30, 1988. The contracts were essentially identical with the exception of the length of their duration. In these Contracts, she was designated under Group I - "temporary replacement for employee on authorized leave"~ In the last three contracts, Klm Rudd is identified as the employee Ms. McKinna is said to be temporarily replacing. This grievance arises out of the fact that Ms. McKinna's contract was ~not renewed following the termination of her last contract on April 30, 1988. Ms. McKinna grieves that she has been unjustly dismissed. Her written grievance is dated May 17, 1988. It is common'ground that if Ms. McKinna was'properly appointed the unclassified service, the grievance cannot succeed. It is also common ground that there was'no cause for dismissal had Ms. McKinna been a classified member of the public service. It is the position of the Union that Ms. McKinna is entitled to grieve dismissal because she has been improperly service. appointed to the unclassified It is the Employer's position firstly, that Ms. McKinna was properly appointed to the unclassified service; and that therefore the grievance cannot succeed; secondly, that her grievance is untimely and therefore is barred; and, thirdly, that the Union is estopped from challenging the appointment to the unclasSified service. Ms. McKinna~s appointment to the unclassified service pre-dated the change in Regulation 881 made under the Public Service Act expanding the definition of a member of the unclassified service. In order, therefore, for the. Grievor to' have been properly appointed to the unclassified service, she must fall Within one of the three groups set out under s. 6 of the Regulation as it was in January 1988, the date of the contract. 'It is the p~sition of the Employer that Ms. 'McKinna does fall within Group 1 under that section, in that she was hired to work on a project of a non-recurring kind. In '1985,-it became apparent to the Ontario Highway Transport Board that it would cease to be responsible for Drocessing trucking permit applications once legislation deregulating the. trucking industry.was'passed.- It was not known at that time-how soon ft would actually become divested of that responsibility, but nevertheless it determined that it would no longer hire classified staff to carry on its operations pending deregulation. Instead, it hired staff on fixed term contracts. Ms. McKinna was one of those hired under these circumstances, and it is for the above reason that the Employer asserts that Ms. McKinn~ was hired to work on a "project of a non- recurring kind", and therefore properly appointed to the unclassified service. Ms. McKinna testified that when she was originally hired, she was advised that the hiring would eventually lead into a full time permanent position. She was first assigned to the Tariff Department doing filing. Six months later she asked the Managing Director, Mr. whee~er, if she could get into a typing job and was given Kim Rudd's position; Kim Rudd was being transferred. Kim Rudd was a classified employee during the time that she performed the job which Ms. McKinna assumed. During the period of time' that Ms. McKinna was an employee, there were discussions with management in which management indicated tO the Staff, including Ms. McKinna, that trucking would eventually be deregulated and that when deregulation.' did in fact occur, employees' contracts would not be renewed. Management indicated during such meetings that employees on contract should be looking for alternative employment. Ms. McKinna's job was to prepare files for applications for trucking permits, and all that that entails. By January ~f 1988, applications slowed down to the point that they virtually ceased. Th£s' function h~d been transferred to the Ministry of Transport office. Because the trucking permit applications had stopped, Ms. McKinna's work altered. She was assigned a number of other tasks in the office. It was, by Ms. McKinna's evidence, a couple of weeks prior to the end of the expiry of her last contract on April 30, 1988 that she was advised by her supervisor that the contract was not going to be renewed. There is, however, a letter dated April 6, 1988, from the Managing Director, Mr. Wheeler, to Ms. McKinna advising that her contract would not be renewed, but Ms. McKinna denies having received that letter ·until after she had left the employment of the Ministry. Frances -Green, Ms. McKinna's group leader ~nd a bargaining unit member, was called as a witness for the Employer. She testified that there had been meetilngs with the Chairman who advised that once the legislation was passed deregulating the trucking industry, it would be the end of all the contract jobs. Ms. Green testified that although Ms. McKinna performed some of th~. functions which had been performed by Klm Rudd prior to Ms. Rudd being seconded, there were a number of other functions which Ms. McKinna did not assume. She also testified that Ms. McKinna received Mr. Wheeler's letter dated April 6, 1988, on or about the same day becauseMs.. McKinna had come to her with the letter to ask whether or not the Employer could do what it was intending to do. She testified that she read the' letter on the day it was dated and discussed the letter'with Ms. McKinna at that time. Finally Felix D'Mello, the Secretary-Manager of the Ontario Highway Transport Board, was called and testified that, as of .the beginning of 1988, the Ministry of Transport took over the function of processing trucking permits. From late 1985 on, staff at the Board were taken on as Unclassified staff because it was known that the functions of the Board would be greatly reduced and the volume of work would eventually be cut substantially. -A decision was made to monitor the situation and to wait to see whe~ the legislation would be passed. Mr. D'Mello testified that the Grievor's last contract was given to her in January of 1988 upon compassionate grounds and in order to give her an opportunity to find a job elsewhere. Contract staff had been encouraged to find other work for some time. Mr. D'Mello testified 'that he had a discussion with the Grievor approximately two weeks prior' to the end of her last Contract advising her that there would be no renewal, .and giving her leave to-take time off work to look for new employment. The Grievorapparently did take this opportunity on two occasions. Mr. D'Mello acknowledged-that the Ministry processes trucking permit applications even today and that it is an ongoing function. The central issue in this grievance is whether or not the Grievor was employed on a project of a non-recurring kind. .It is not seriously contended by the Employer that Ms. McKinna was a temporary replacement for an employee on authorized leave. There was no evidence that Ms. McKinna was either originally hired to replace Ms. Rudd or that she replaced Ms. Rudd during the last contract. Nor was there evidence that Ms. Rudd's absence was temporary. Indeed, there was no evidence that Ms. Rudd was on. authorized leave. The Employer puts its case on the basis that Ms. McKinna was properly appointed as an unclassified employee because she was employed in a project of a non-recurring kind. ~- Before We embark on an enquiry as to recurrence or non- recurrence, it is necessary'to determine whether Ms.- McKinna was employed on a project'at all. The term "project" is capable of myriad definitions. At one extreme,.it is possible to say that all work is a project in tha~ it is an undertaking, regardless of how continuous or infinite the work may be by its very nature. At the other extreme, the smallest oftasks may be a project,·discrete and complete in and of itself. If ~ne were to look,· however, to the language of the Regulation, .one would reasonably come. to the conclusion'that the draftsmen contemplated a distinction between projects.of a recurring kind and projects of a non-recurring kind, impl·ying that the nature of a project is a body of activity having a beginning and an end, the entirety of which may or may not be repeated. I would add to this ~hat a project, in the. common understanding of the word, also has a purpose or an object and that the beginning of the project is indicated by the commencement of activity toward accomplishing that object and that the end of the project is indicated either by the achievement of that object or the abandonment of it. If one looks to the evidence before us, it is not possible to find the existence of a project. Ms. McKinna was hired to be a part of a complement of staff which carried on th~ Board's ordinary operations, a part Of which was to process trucking permit applications. ~ Ms. McKinna performed a number of functions for the Board over the period spanned by her contracts, but one-cannot find either a beginning or an end to the activity in which Ms. McKinna was engaged. She' was hired to assist the .Board .to carry on business as usual and the cessation of Ms. McKinna's employment was occasioned nOt by the accomplishment of the object of a project or the abandonment' of it but by-reason of the employer having re- assigned certain functions which had been performed by Ms. McKinna to others among its employees by moving those functions out from the aegis of the. Board' and into the general responsibility of.the Ministry. Accordingiy, I would fin~ as a fact that Ms. McKinna was not engaged in a project, and therefore was not engaged in a project'of.a non-recurring kind. She was therefore not properly appointed as. a member of the unclassified service. The next issue is the question of the timeliness of the grievance. It is said that the grievance is time-barred because Ms. McKinna knew or ought to have known that she had cause to grieve either as early as January of 1988 when her last contract was signed or'by April 6, 1988, when Mr. Wheeler~s letter advising her that her contract was not to be renewed was delivered to her. The evidence of Ms. Green and of Ms. McKinna diverged on this point. Ms. McKinna testified that she does not recall any meeting with Mr. Wheeler and stated that she did not receive the April 6th letter until these grievance proceedings were underway. I Drefer the evidence of Ms. Green on this point. Her~recollection was clearer, was consistent with the.independent evidence, namely the letter, and she is a witness w~thout an interest in the outcome of this proceeding. In any case, it is clear that Ms. McKinna knew at least "a couple of weeks" before the' end of her contract that it was not going to be renewed, according to the testimony of Mr.. D'~ello. This, however, does not dispose of the question of when the Grievor first acquired the belief that she had a complaint or difference with the Employer arising from the interpretation, application, administration or alleged contravention of the agreement. It is important to note that Ms. Green's evidence was that Ms.~ McKinna asked her whether or not the Employer was entitled to do what it intended to do, namely to refrain from renewing Ms. McKinna's contract. Ms. Green's reply to Ms. McKinna was that the Employer'was so entitled. BY Ms. Green's evidence, Ms. McKinna was encouraged to seek further Union advice. In the absence of evidence that MS. McKinna rejected Ms. Green's information, t6ok the opposing view, and did so at a particular point in time, there is no preponderance of cogent evidence before us to support the Employer's contention that the grievance was time-barred. The onus falls on the. Employer to establish that Ms. McKinna had at a certain point in time the subjective belief that the she had a complaint or difference and that she failed to process her grievance within the times set out in the Collective Agreement. The Employer has not met.that onus, and accordingly I would-not dismiss the g~ievance for reasons of timeliness. FiEnally, the Employer has argued that the Union is estopped from proceeding with this grievance by reason of the Grievor having proceeded on the basis of a number of fixed term contracts with the Employer without complaint from 1985 until 1988. In my view, that fact does not create an estoppel. There is no evidence before us of detrimental reliance or of the Employer having changed its position by reason of Ms. McKinna's or of the ~nion's~ silence .in relation to Ms'. McKinna~s many fixed term contracts. The parties agreed at the hearing that they would reserve their rights to make submissions as to remedy pending issuance of this decision on the central issue. This panel will therefore remain seized and, in the event that the parties are unable to agree as to an appropriate remedy, will receive counsels' submissions thereon~ DATED this 13th day of .~Jul¥ , 1992. WAILAN LOW D, MONTROSE