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HomeMy WebLinkAbout1988-0807.Warren.91-12-04 ONTA RIO EMPLO YL~S. DE LA COURONNE CROWN EM,eL OYEES DE L 'ONTARIO GRIEVANCE C~OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOA$ STREET WEST, SUITE 2700, TORONTO, ONTARIO, M5G 1Z8 TELEPt..tOIVE/TELEPHONE: (415) 326-1388 180. RUE DUNOAS OUEST, BUREAU 2100, TORONTO (ONTARIO)· M5G 1ZB FACStMILE/T~-Lr,~.CO~E : (416J 326- I396 807/88,' 845/88 IN THE MATTER OF ~NARBITI~TION Under THE CROWN EMPLOYEE8 COLLECTIVE BARGAINING ACT Before THE GR~EV/~NCE SETTLEMENT BETWEEN OPSEU (Warren) Grievor The CrOwn in Right of Ontario (Ministry of Correctional Services) .. Employer BEFORe: W. Low ~ice-Chairperson M. Vors.ter Member F. Collict 'Member FOR THE S. Ursel GRIEVOR Counsel Cornish Roland Barristers & SOlicitors FOR THE P. Pasieka EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING May 30, 1991 DECISION William Warren, the Grievor, brings two grievances. The first, dated July 8, 1988, is a competition grievance in which Mr. Warren alleges that Competition No. CI-1005B/88' was awarded unfairly. The second grievance, dated September 23, 1988, alleges dismissal without just cause. . William Warren is a member of the unclassified service of the public service and works at the Whitby jail as a Correctional Officer 1. . By reason of-his status as an unclassified employee up until the time of the end of his employment on September 30, 1988, the employer makes a preliminary motion challenging the jurisdictio~ of 'the Board to entertain the grievances. Ir'is'the employer's position that the Grievor was an unclassified employee whose contract expired and was not renewed. Section 9 of the Public Service Act provides as follows: "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." Mr. Warren was employed pursuant to a series of term contracts lasting for differing numbers of months from time to time starting in 1984. He had a number of contracts with the Ministry which ran usually for six months, but in other cases for shorter or longer periods of time. At the end of the last contract which ran from April 1, 1988 to September 30, 1988, no further term contracts were made with Mr. Warren, and he therefore ceased to be a public servant pursuant to s. 9 of the Statute. Next, it is the employer's Position that the Grievor was properly designated as a member of the unclassified service, being .an employee falling within that class of persons defined tin s. 6(1)(a)(iv) of Regulation 881 made under the Public Service Act, namely a person who is employed on an irregular or "on call" basis. That being the case, the Grievor has no status to bring his grievance by reason that Article 3 of the Collective Agreement provides that: · "3.1 The only terms of this Agreement that apply to employees who are not civil-servants'are those that are set Out in the Article." Article 3 does not confer rights on an Unclassified employee to bring the grievances whiCh Mr. Warren haS brought before the Board in Jthis proceeding.- Members of the unclassified service, while members of the public, service, are not members of the civil servioe. As classified service under s. l(b) of the Public Service Act means the part of the public service to which civil.servants are appointed, ergo it follows that the Unclassified service means the part of the public service comprising persons who are not civil servants, and therefOre the term in Article 3.1 "employees who are not civil servants" is equivalent to "unclassified employees"~ It is pursuant to Article 4 that a classified employee may grieve a competition. Article 4, however, is not one of the articles which is stipulated in Article 3 as being applicable to the unclassified service. The Grievor therefore has no status to 3 grieve a competition. We are referred to the decision in GeorGe Daniels and Ministry o~ the Solicitor General, a. decision of Arbitrator Fraser (1544/87), which held that an alleged violation of Article 4 is not arbitrable at the instance of a member of the unclassified service. We find no reason to disagree with this proposition. There is a second ground for dismissing the competition grievance and that is the ground of the ~ntimelines$ of the grievance. It is no~ disputed that the Grievor was told on or about'April 12, 1988, that he was unsuccessful in the competition, yet he did not grieve until July 8, 1988. The provisions of ~Articlm'27.as to the time within which an aggrieved employee must complain to his supervisor and subsequently file a grievance in writing are mandatory. Mr. Warren's grievance relating to the competition was untimely and there is no explanation therefor, and on that ground we would dismiss the competition grievance regardless of the status of Mr. Warren as a classified or unclassified employee. As to the issue of dismissal without just cause, we are referred to a number of cases which draw the distinction between termination of a contract by the employer and the expiry of a contract pursuant to its own terms. The cases have held that where a contract of a fixed duration expires pursuant to its own terms 4 and the employer does not renew the contract or enter into. a further contract with the employee, the employee has no right to griev~ for he has no 'contractual right to a renewal of the contract, vide Shipley and The Ministrv of Correctiona~ Services (0223/86); Hicks~ v. Ministry of Community and Social Services, (2563/87).; and Bond v. Ministrv'of Natural Resources (173/78). It · is well established that where, a fixed term contract expires with the effluxion of time and in accordance with its own terms, it cannot be said that there has been a termination or a dismissal as contemplated in s. 18(2)(c) of the Crown Employees Collective Bargainin~ Act, which requires an act on the part of the employer terminating the agreement. The issue is raised by th~ Grievor that the motive or.the emplQyer is a relevant consideration. In our view, if there is no contractual right to a renewal of a fixed term contract, the right cannot be~ created out of the employer's reasons for not so renewing. As Arbitrator Fisher held in Heale~ and Ministry of Correction Services (0485/88), 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. On the part of t~e Grievor, it is contended that Mr. Warren was not properly designated a member of the unclassified service, that we .have jurisdiction to designate him properly a member of the classified service, to entertain his grievances on 5 their merits and to fashion an appropriate remedy. It is submitted on behalf of the Grievor that in order to determine whether or not he was properly'designated as a member of the unclassified service, evidence should be examined as to.the nature of his employment. It is said that his employment was not of the nature defined in s. 6 of the Regulation under the ~ublic Service Act, but instead was employment of a regular nature, although he was sometimes on call. The parties have prepared an agreed statement of facts in this respect. It is agreed that: "A~REED STATEMENT'OF F~CTS 1. The Grievor was hired by the Ministry on a series of eight (8) contracts which are found at Tab 7 Of the 'Ministry's documents, from June 1, 1984 to September 30; 1988-. 2. The Grievor, while on these contracts, fulfilled the fundamental duties of Correctional Officer at the Whitby jail. His job duties and responsibilities were similar to those performed by 'Correctional Officers in the classified service at the Jail except certain special duties: Community Escorts; Hospital Escorts; Special Assignments and Control Office were not assigned to unclassified staff. 3. From April 13~, 1987 to March 31, 1988, the Grievor replaced Correctional Officer Goddard. He performed the same job. duties as that officer except as described above and was scheduled as that officer had been scheduled. 4. As ~ general .rule, whenever the Grievor was required to work on regularly scheduled shifts of eight hours or more, he was scheduled onto these shifts in advance of working them and his name was on the shift schedule for unclassified staff for that work week so that he could refer it and apprise himself of his'schedule for the week. 5. For the balance of the days the Grievor worked when '. he was working 'for less than regularly scheduled shifts of eight hours,'he was often scheduled for them in advance. Some of them were "call ins" immediately prior of his schedule for the week. 6. Correctional Officers appointed to the classified staff worked twelve (12) hour .shifts or eight (8) hour shifts and their hours per 'week for those classified positions were averaged to forty (40) hours on an annual basis. 7. The Grievor's actual hours of work are shown'on the summaries .submitted with this statement." The charts showing the Grievor's hours of work over the period June 1984 to March 1988 indicate no discernable pattern as a standard practi~e. There is no consistency in the number of hours worked, the number of days off or' the timing of days off except when the Grievor.was relieving for a sick employee, Officer Lawson, from NOvember 1987-to January 1988. Otherwise,' what one gleans' is an absence of pattern or regularity, and' the 'proper factual inference to.be drawn in our view, is that the'Grievor was employed on an irregular, on-call basis, thus placing him within Group i set out at s. 6(1)(a)(iv) of Regulation 881/89 under the Pubkic Service 'Act. The Grievor relies also, however, on the facts that the Employer gave as much advance notice as was possible as to 'the hours he'would be required to work and that on occasion, Mr. Warren was asked to work in excess of 40 hours. These factors, in our view,' do not take him out of the unclassified service and into the classified service if in fact he was working on an irregular or on-call' basis. Indeed, the term contract which governed the relationship speak to "normal" hours of not more than 7 40 per week, thus ~uggesting that there would be circumstances in which more tha~ 40 hours per week might be required. As to the inference to be drawn from advance notice, what we are left with is advance notice of irregular work and we do not consider the concept of "on-call" to import a requirement that the employer notify of its requirements only at the last possible moment. In our view, "on-call" is more properly interpreted to mean "as and when required", and it would be a startling result if an effort on the part of the employer to give ample advance notice to the employee as to £ts requirements of him were interpreted as creating a "regular" employment if in fact· the requiremen~ was irregular though planned. Indeed, the fact that notice is.given at all leads only to ~he inference that the Grievor works if, when an~ for the perioa he is advised he is needed. On the evidence, we do not find that Mr. ·Warren was improperly designated a member of the unclassified service. That beingthe case, we therefore dismiss the grievances forthe reasons set out above. DATED this 4th day of December , 1991. M. VORSTER F. ¢