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Home My WebLink About1988-0485.Healey.89-06-06 " ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES Of' L'ONTARIO '~ GRIEVANCE COMMISSION DE SETILEMENT REGLEMENT BOARD DES GRIEFS 180 oUNDAS STREET WEST. TORONTO, ONTARIO. MSG 1Z8 ~ SUITE 2700 TEI..EPHONE/T~L~:PHONE fSO. RuE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 o BUREAU 2;O0 (415) 598o06~8 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Healey) - and - Srlevor The Grown in Right of Ontarlo (Ministry of Correctional Services) Employer Before: B,B. Fisher V~ce-Chalrperson ?. Klym Member ,~owan Member APPEARING FOR ?. Lukas~ewlcz THE GRIEVOR: Counsel Barristers a Solicitors ~PE~ING FOR S, Lee THE E~LO~R: Senior Staff Relatlns Officer Ministry of Correctional Services HeartnQs: October 27, 1988 November 23, '988 DECISION The grievor claims that he was unfairly discharged as an unclassified employee when his contract was not renewed. The employer raised the usual preliminary objection saying that the Board had no jurisdiction to hear this matter because of Section 9 of the Public Service Act which says that upon the expiry of anunclassified employee's contract, he is no longer a Public Servant. The parties have agreed that solely for the purpose of determining the preliminary objection on jurisdiction the Board can assume the following facts to be true. 1. The grievor was an unclassified employee on a one year contract. 2. Shortly before the end of his contractual term, the grievor was unfairly ' disciplined over an incident. 3. The grievor worked until the end of his contract but the contract was not renewed. 4. The sole reason the grievor's contract was not renewed was because it was as a disciplinary response to the incident referred to in paragraph 2, and but for that reason, his contract would have been renewed. It was agreed by the parties that the Board would not, at this time at teast, decide this case along the lines of Beresford, Milley and/or Hicks, although it is clear that the Union reserves its right to raise these cases as additional arguments at a later time. The Union's position is simply that the Grievance Settlement Board has the jurisdiction to inquire into the decision-making process of the employer in deciding not to renew a contract for an unclassified employee to see if this decision was made in good faith. If the decision was not made in good faith, then the Union argues the Board has the jurisdiction to apply the appropriate remedy. -2- The employer's position is simply that good faith or lack thereof is irrelevant, the Board simply has no jurisdiction in a case of simple non-renewal where the employee was paid to the end of his term. The Union reli~s on two cases, ltumeniuk (614/84 Vice Chairperson Springate) and Mousseau (1182/85 Vice Chairperson Jolliffe) Humeniuk, another non-renewal case, has the following passage at pages 11- 12: The Minist~,'s failure to renew the ~.'evor's contract was not a "dismissal". 'Furthe§ in our view, it cannot reasonably be viewed as a "terrninatton". The word "termination" is used in both the collective agreement and the grievor's contracts to refer to situations wfi~fr.e a contract is terminated prior to its stated expiry date. This was not the case here...i · There is nothing in the collective agreement or in the applicable statutes which guarantees contract employees the right to be reappointed, or which in any way restricts man.agement when it makes a decision as to which contract employees aF. e not to b,e renewed. Accordingly, the non- renewal pf ttte grievor s contract, which was not tainted by bad f.aittt on the part of the employer, did not involve a breach of etttter the collective agreement or a relevant statute. Mousseau does not talk about "bad faith" but Union counsel relies on the following passage at page 8: lf the parties are correct in relying on Boncher and Trumbley .... as both of them do --- the Board cannot assume jurisdiction to decide the case on its merits or provide a remedy unless it has been shown th~ the failure to renew,, Ms. Mousseau's contract was in .effect a 'dismissal fo. r cause rather :~. than a mere termination. The employer contends that it was , the latter and the Board lacks juns~ diction. The Union's submission is that tt~e reasons given by the Employer in 1985 demonstrate a dismissalS, om emlgloyment "w~thout just cause" --- the wordx used in section 18(2)(c) of the Crown Employees Collective Bargaining Act. -3- The Ilumeniuk case, including the reference to "bad faith" was commented on in a later decision entitled Shipley (0223/86.Vice Chairperson Samuels) in the following passage of page 8: We are not sure what 'the Board meant when it spoke o[' "bad faith': in this passage. An unclassified employee has n6 contractual t~ght to renewal of his contract. Why.woul, d~ it matter if the .failure to renew was "tainted by bad faith (whatever that would mean in the circumstances)? This Board simply tins no jurisdiction over non-contractual problems, except for the three matters mentioned in section 18(2) of the Crown Employees Collective Bargaining Act. This Board accepts the comment in Shipley as binding on this Board in accordance with the Blake decision, therefore, the presence of bad faith in a decision. not to renew a contract at its expiry does not give the Board jurisdiction in the matter. In accordance with the arrangement worked out between the pm'ties, this grievance is not dismissed because the Union is to be~ allowed 90 days beyond the final disposition of the Beresford case to request a further hearing of this case to make a Beresford~type argument, failing which the employer can request, in writing on notice to the Union, for the grievance to be dismissed. Dated at TorOnto, this 6~h day of aune ,1989. er, Vice chairperson "t '4~ssent" (Dissent attached) ?. Elym, Mer~ber Cowa~7'vlemOer DISSENT I find that I must dissent in this case from the decision of the majority. Simply put, I cannot agree clear evidence of bad faith would have no impact on this Board's right to review how management administers its rights-in this case the right to renew an appointment to the unclassified service. In following the reasoning of the . Shipley decision (0223/86) the majority have invoked the Blake decision as a reason for considering Shipley to be binding on this panel. With respect, I do not consider this to be appropriate. To come to this conclusion, one would have to completely ignore the reasoning of the Board in the Humeniuk decision (614/84). Why is the reasoning in Shipley any more binding on our panel than the Humeniuk decision? And why was the Shipley panel not Similarly bound to follow the reasoning in the Humeniuk decision? It is apparent to me that we are faced with two opposing views presented by two different panels of the Board, both made before there was the concern for consistency expressed in the Blake decision. we should therefore inspect both decisions carefully and make our decision on the basis of what is the generally accepted standard in labour arbitrations and labour relations. In my opinion a decision that can be interpreted as sanctioning bad faith in the administration of management rights does not meet this s~andard. I believe the Grievance Settlement Board should not place itself in a position where' it can possibly be perceived as sanctioning bad faith. I would have dismissed ~he preliminary objection. Peter Klym