HomeMy WebLinkAbout1988-0775.El-Korazati.91-10-30 · ONTARIO EMPLOYES DE LA COURONNE
· CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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775/88
IN THE MATTER OF ~N AEBITI~TION
Unde~
THE CROWN EHPLOYEE8 COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (El-Korazati)
Grievo=
- an~ -
TheCrown in Right of Ontario
(Ministry of Revenue)
Employer
BEFOR~: J Samuels Vice-Chairperson
I. Thomson Member
M. O'Toole Member
FOR THE D. Wright
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
· FOR THE B. Labord
EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart, Storie
Barristers & Solicitors
HEARING September 12, 1991
Yet another award dealing with the appropriate remedy in the case
of an employee who was ostensibly hired as an "unclassified" employee by
means of a limited-term contract, and whose contract was not renewed, but
whose appointment to the unclassified service was not proper because, at
the time the grievor was hired, his position did not fit within the categories
of unclassified service set out in section 6 of Regulation 881 of the Public
Service Act. The grievor argues that he ought to be treated as having been
a "classified" employee, which means that the non-renewal of his contract.
was in fact a dismissal and there was no just cause for the dismissal. He
seeks reinstatement as a classified employee.
The Public Service Act provides for the establishment of two types
of "service" to Which public servants are appointed--"classified" and
"unclassified".
"Civil servants" fill the "classified service" (these terms are defined
in section I (a) and (b) of the Act). They are appointed on a probatio/~ary
basis for up to one year (pursuant to section 6 of the Act), and may then be
appointed to the regular staff (pursuant to section 7).
Employees in the "unclassified service" are appointed by the Minister
or his designee for a period of not more than one year on the first
appointment and for any period on any subsequent appointment (pursuant
to section 8). S6ction 9 provides that "A person who is appointed t° a·
position in the pUblic service for a specified period ceases to be a public
servant at the expiration of that period". This Board has long held that,
pursuant to section. 9, the non-renewal of a member of the "unclassified
service" is not grieVable. The employee has not been "dismissed", but
rather his limited:' appointment has simply come to an end and he is no
longer a public servant .... see, for example, Bond, 173/78.
The established understanding in this area was shaken by the decision
of the Board in Beresford, 1429/86 (Mitchnick). The Board in that case
referred to section 6 of Regulation 881 under the Public Service Act,
which sets out the composition of the "unclassified service", and decided
that, if an employee did not fit within one of the categories set out in
section 6 of the Regulation, the purported limited-term appointment to the
"unclassified service" was improper and unauthorized by the Public Service
Act (at page 17).
Our first day of hearing was in January 1989. At that time, three
earlier awards from this Board were on appeal -Beresford; Milley,
1972/87 (Mitchnick); and Hicks, 2563/87 (Fraser). The three decisions
were not consistent, and they al/raised one central issue: Is it possible for
an employee to be a member of the "unclassified service" if he or she does
not fit within the categories set out in section 6 of Regulation 881 to the
Public Service ACt? The answer to this question would determine the first
issue before us, which was whether this situation was to be characterized as
the non-renewal of a limited term appointment of an "unclassified"
employee (which is not grievable), or the dismissal of an employee which
is grievable pursuant to section 18(2)(C) of the Crown Employees
Collective Bargaining Act.
In Beresford and in Miltey, the Board had found that, if an employee
did not fit within one of the categories set out in 'section 6 of the
Regulation, the purported limited-term appointment to the "unclassified
service" was improper and unauthorized by the Public Service Act. The
Board did not go on to decide what should happen as a result of this
finding. It simply declared that the limited-term appointment was
improper and unauthorized.
In Hicks, on the other hand, the Board had found that an employee in
the circumstances of our grievor could be a member of the "unclassified
service" and would be subject to non-renewal of his appointment.
In January 1.989, the Ministry asked us to adjourn until the courts
had dealt with the applications for judicial review in these three cases. We
agreed, and granted the adjournment.
By now, We know the Court's view--if an employee did not fit
within the categories set out in section 6 of Regulation 881 to the Public
Service Act, the employee was not properly appointed to the "unclassified
service" (unpublished decision of the Divisional Court in Beresford and
Milley, dated December 6, 1988).
Parenthetically, since the grievances in all these early cases were
filed (including our case today), section 6 of Regulation 881 has been
amended by the addition of a catch-ali category, Group 3, which would
have embraced Messrs. Beresford, Milley, Hicks, E1-Korazati, and all the
others. Their situations cannot occur today.
In any event, for us the issue then becomes "what is the appropriate
remedy in the circumstances?" And once again, different panels of this
Board have given very different answers.
In Beresford/Milley, 1429/86 and 1972/87 (Samuels), the two
original cases were combined. The Board decided that, though the
grievors were not:. Properly appointed to the unclassified service, at the
same time they were also not properly appointed to the classified service,
and the Board did not have the authority to turn them into classified
employees (in order to be properly appointed to the zlassified service,
the appointments must be pursuant to sections 6 and 7 of the Public Service
Act, and the position had to be posted pursuant to Article 4 of the Collective
agreement). The Board said (at page 9) that it could be inferred from the
structure of the collective agreement that such an employee ought to have a
greater range of rights than an unclassified-employee. The ghevors ought
to be compensated for the abrupt termination of their employment. A
good reference for the way in which they should have been dealt with is
found in the Employment Standards Act. Section 40 of the Act provides
for notice of termination or a payment in' lieu of notice, and section 40a
. provides for severance pay in certain circumstances where an employee has
worked for an employer for five or more years. The Board ordered that
the grievors should be considered to have 'been covered by sections 40 and
40a of the Employment Standards Act, and should be paid any amounts to
which they were entitled upon the application of these provisions to their
situations.
This award was taken for judicial review. In an unpublished
endorsement dated November 26, 1990, the Divisional Court decided that
the Board was incorrect when it said that it did not have the authority to
appoint an employee to the classified service if it considers that remedy
appropriate for the particular employee, but that the Board had not
considered the particular grievances appropriate "for the exercise of such a
drastic .remedy", and the remedy which the Board fashioned was not
patently unreasonable. In sum, the application for judicial review was
dismissed.
In Wagner, 351 and 352/89 (Slone), the Board emphasized the
principle that a remedy is intended to make the grievor whole--that is,
there is no remedy unless it can be shown that, in fact, the grievor suffered
harm as a result of the employer's improper conduct (at pages 16 and 17).
In order to get into the classified service properly, an employee must
compete for a posted position. There was no evidence before the Board
that showed that, had the grievor competed for a posted position, the
grievor would have been successful (at pages 17 and 18). The Board
concluded (at pages 23 to 24) that the job which the grievor performed
ought to have been filled by a posting and an appointment to the classified
service; that the Employer must post the job when it wishes to fill the
position~ again (by the time of the award, it appeared that the position
would not be filled for some time, because of lack of funding); that the
Employer must permit the grievor to compete for the position, whether it
is truly an open competition or is posted simply as an internal competition;
that the Employer must consider the grievor's application in good faith;
and that the Board' would retain jurisdiction to review the process of
selection should the grievor seek such a review.
In Canete, 21.92/90 (Simmons), the Board again emphasized that a
remedy ought to be,remedial and not punitive (at page 16), and then went
on to order that the grievor should be placed on the surplus list in the
classified service .and dealt with pursuant to Article 24 of the collective
agreement. It's not clear in the decision why the Board put the grievor
into the classified service, because the Board does not say that, had the
grievor competed for the position in the first place, she would have
succeeded. Perhaps one ought to infer this from the decision.
In Blondin,. 78/89 (Keller), by the time the Board dealt with the
grievances, the grievors had competed for classified positions, involving
the same work as they h~d done while unclassified, and had been successful.
The Board decided that this was good evidence that, had the positions been
posted properly in the first place, the grievors would have succeeded. In
these circumstances, the Board ordered that the grievors were to be
considered as having been appointed to the classified service corrmnencing
20 days prior to the filing of their grievances, and they were entitled to all
wages and benefits flowing from this order.
Turning to the situation before us.
From June 1986 to $une 1988, the grievor was employed by the
Ministry pursuant to a series of consecutive limited term contracts. He was
classified as an Audit Trainee and worked a regular 36 I/4 hour week in
the Corporation Tax Divisiom He was considered to be a member of the
"unclassified service", though he did the same work-as employees in the
"classified service".
The grievor testified that he knew that, in order to become a
classified employee, he would have to compete for a posted Auditor 1 or 2
position and be interviewed, However, he was encouraged by one of his
supervisors, who told him in June 1987 that his (the grievor's) work was
very good and he had a good chance of becoming a permanent employee
"when the first chance comes".
Later in 1987, a' number of Auditor 1 positions were posted, and the
grievor applied. He was not successful. Several employees, who were also
on limited-term contracts, were successful.
After June 30, 1988, his contractual relationship was not extended by
the Ministry.. He was told that a backlog of work had been eliminated and
his 'services were no longer required. There is no suggestion by the
Ministry that his work performance was unsatisfactory.
Counsel for the Union urges us now to order that the grievor be
placed on the surplus list as a classified employee, so that he can benefit
from the provisions of Article 24 of the collective agreement.
It was argued that we should not do what the Board did in
Beresford/Miltey. Them the Board found that the grievor was some sort
of hybrid employee, neither unclassified nor classified.. And this finding
goes against the principles suggested in a recent, as-yet-unpublished,
decision of the Supreme Court of Canada--Public Service Alliance of
Canada v. The Queen v. EconosuIt Inc. (decision rendered March 21,
1991).
In Econosult, the Federal Government had engaged teachers for
federal penitentiaries through an outside agency, Econosult. The Public
Service Staff Relations Board decided that, in substance, these teachers
were truly employees of the Government, and the Public Service Alliance
was their bargaining agent. The Federal Court of Appeal set this decision
aside, holding that the Board did not have the jurisdiction to decide who
was an employee of the Public Service. Rather, the Board had authority
only with respect to public servants recognized as such by legislation other
than its enabling statute and 'by the authority of a body other 'than itself.
On appeal to the Supreme Court of Canada, the majority of the Court (in a
decision by Mr~ Justice Sopinka) held that, given a pragmatic and
functional interpretation of the provisions of the Public Service Staff
Relations Act, the Public Service Staff Relations' Board's jurisdiction is
limited to persons employed in positions created by the Treasury Board,
pursuant to appointment by the Public Service Commission. There is no
place for a category of de facto public servants. The Court dismissed the
appeal, upholding "the decision of the Federal Court of Appeal. At pages 17
to 18 of the unpublished decision, Mr. Justice Sopinka says:
In the scheme of labour relations which I have outlined above
there is just no place for a species .of d, f~cto public s,rvtnt who is
neither fish nor fowl. The introduction of this" Special breed of public
servant would cause & number of problems which leads to l.he' conclusion
that creation of this tl~rd category ts not in keeping with the purpose of
the legislation when viewed from the pers~ve cd · prai~.atic and
functional approach.' There are, for eTsmple, certain statutory terms tad
conditions of employment that ~re not subject to the collective b~rl,i,,ini
proce~ but ~e nevertheless applicable to a public servtnt. This results
from the combined e/feet of s. 57 of the Staff Itehglant Act tad ss. 22 to
27 of the Em/goyrntnt Act. Accordingly a baxgeinla$ unit whtcb is designed
to include all those .with a unity of Interest would have two classes of
employc~. On the one hand, the "legal' public servant must take tn oath
of allegiance and of office, has his or her tenure o! office fixed by statute,
amd i~ aubj~ to other statutory reactions but receives other ~~.
while, on ~e o~er h~d, ~c ~ f~' pubic ~t ~ ~ to ~rk
· ~ te~s out ~ hi~ or her con~a~ emplo~ ~d ~d~ ~ain
co~vely ~ ~ ~tt~ ~ r~ ~ ~ ma~ ~ h no
~~, ev~ ~ ~ fo~d W ~e ~d. ~e h, ~efore, Oe
pros~ct ~at ~e t~chc~ co~d ~ repr~nt~ by ~ ~o~ ~~ by
~y of ch~k~ff but it h ~ no m~ cl~ ~at it ~ d~u~ ~
amounts ~om ~e pa~cn~ it must ~e' to ~n~t und~ i~ contra~
~ it, wMch app~enUy romans oa f~
Counsel for the Union in our case urges us to adopt this reasoning--
to find that there is no middle ground; that if an employee is not properly
appointed to the unclassified service, then the employee must be in the
classified service. But, in our view, the reasoning in Econosult does not
apply to our case. Mr. Justice Sopinka does not say that it is never possible
to have a category which is "neither fish nor fowl". Rather, he says that
"in the scheme of labour relations which I have outlined above,
there is no place for a species of de facto public servant who is neither fish
nor fowl" (emphasis added). He was dealing with a particular context, and
ours is a different context. Mr. Sustice $opinka makes it clear that the
Cou~ is concemed about the probIems which would result if there was a
third category of public servant. It is these resulting problems (some of
Which he outlines in the passage quoted above from his decision) which
lead the Cour~ to decide that there cannot be such a third category. But
things are different in our case. Counsel for the Union did not point out
any particular problems that would arise if the remedy in Beresford/Mi/ley
were used by this Board.
Thus, in our view, the jurisprudence to date suggests that there are a
range of remedies possible for someone in the grievor's position. The
Divisional Court, in its endorsement to Beresford/MilIey, says that this
Board has the power to appoint an employee to the classified service if it
considers this remedy apprOpriate, but suggests that this is a "drastic
remedy".
In our view, this is not a case for the application of this "drastic
remedy". It is up to the Union to prove that there was harm which ought
to be compensated or remedied. We are not satisfied that the Union has
demonstrated that, .if the Ministry had posted the grievor's position in the
first place, the grievor would have been successful. There was a
competition during' the grievor's time with 'the Ministry. It occurred after
he had been told by a supervisor that he had a good chance for permanent
employment "when the first chance comes", but he was not successful. It
has not been demonstrated that he would have been successful in any other
competition. If we were to put the grievor into the classified service and
on to the surplus list, he would then have rights to positions without
competition that other employees do not have.
In our view; the appropriate remedy in this case is to give the
grievor the fight to compete for the next Auditor 1 and Auditor 2 positions
in ~e~ropolitan ~oronto wh~c~ ~re ~os~¢d, w~¢thcr ~¢~¢ posido~s
~evor directly o~ ~y ~uch posting. ?roper ~otific~tion Mil be de~m¢~ m
have be~n ~iYe~ i£ ~ E~loye~ sends ~ copy of the posting to thc §rievo~
the g'rievor. The Employer must consider the grievor's application in good
faith. We will retain jurisdiction over any matter arising out of this order,
and in particular, to review the process of selection should the grievor seek
such a review.
Our order covers only the next posting at each level. Of course, if
subsequent vacancies are posted at large, the grievor has every right to
apply.
Done at London, Ontario, this 3otb day of October , 1991
muels, Vice-Chairman
"I Dissent" (dissent attache'd)
I. J. Thomson, Member
M.. O'Toole, Member
DISSENT
775/88 E1-Korazati vs Ministry of Revenue
I cannot agree with the decision of the majority in this case.
I think the'Chairman is wrong when he says the Supreme Court of
Canada decision does not apply. The Public Service Ack only
creates two kinds of public servant "unclassified" and
"classified". This is the same situation as the Federal Public
Service which was dealt with in the KcoDosult decision. If there
is no room for a middle ground of a public se~-vant who is neither
"fish nor fowl" in the Federal Public Service, there is no room
for such a person in the Ontario Public Service.
Also I believe they are wrong when they say they cannot place
the grievor in the classified service and on the surplus list
because 'this would give the grievor rights which other employees
do not have.
The grievor would have the right to claim a position without
participating in a competition if he could show he was qualified.
This has some effects on the rights of other Union members.
However, if the Union does not consider this a problem it should
be of no concern to the employer. The Union would be the party
that would have to accept any heat from this decision. The Union
has asked the Board to place the Grievor the classified service
and place him of the surplus list.
I would have ordered the employer to comply with this request.
Member