HomeMy WebLinkAbout1988-0907.Tsiotsikas.92-03-04· J;;"t:~!"'~"?'i-i' ' EMPLOYES DE LA COURONNE
~',;' ";~e~"* CROWN EMPL 0 YEES DE L 'ON TARIO
*80 DUNDAS STREET WEST, ~UtTE 21~, TORONTO, ONTA~, ~SG
~80, RUE OUN~AS OUEST, ~UREAU 2~00, TORONTO {ONTARIO]. M5G
907/88
IN THE MATTER OF ~%NARBITRATION.
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE. SETTLEMENT BOARD
BETWEEN
OPSEU (Tsiotsikas)
Grievor
- and -
The'Crown in Right of Ontario
(Ministry of Skills Development)
Employer
BEFORE: T. Wilson Vice-Chairperson-'
P. Klym Member
A. Merritt Member
FOR THE H. Law (June 23, 1989)
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
A. Ryder (June 17, 1991)
Counsel
Ryder, Whitaker,~Wright & Chapman
Barristers & Solicitors
FOR THE B. Labord
'EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart & Storie
Barristers & Solicitors
HEARING June 23, 1989
June 17, 1991
DECISION
There is quite a long background to this matter. On August 18, 1988, Teresa
Tsiotsikas was unclassified staff as a filing clerk at the classification level of OAG 3 with
the Ministry of Skills Development. She grieves that she was denied the rights and
benefits of a civil servant under the Collective Agreement. When the grievance first came
on before this panel for hearing, the Ministry Counsel requested an adjournment sine die.
That issue was argued on February 1, 1989 and a Preliminary Decision was released on
May 21, 1989 denying that adjournment. The hearing resumed on June 23, 1989 to
receive oral argument on the merits. It was then decided because of the complexities of
the issues that written submissions would be made. Detailed written submissions were
received over the next few months. The situation was then affected by the judicial reviews.
Commenced in the cases of Beresford and MGS (1429/86) decision dated November. 29,
1989~ and Wagner and MC (351/89) dated October 27, 1989. The parties then requested
this panel to postpone determination until after the completion of the judicial review of
those two cases. The matter was finally brought back on and was argued on June 17,
1991.
The parties agreed on the following facts: The Grievor was continuously employed
as a File Clerk by the Ministry of Skills Development in the Ontario Youth Employment
Program within the Youth Employment Branch on a series of contracts from October 1985
to August 31, 1988~ Prior to that she had been a Go-Temp from February 1985 until
October 1985. She worked a 36 1/4 hour work-week and was paid at the OAG 3 rate, the
classified staff equivalent. The work she pedormed was indistinguishable from the work
This is the remedy stage of that arbitration and is hereafter called Beresford 2.
3
of Classified OAG 3s. On August 9, 1988, the Grievor was advised in writing tl~at her
contract of employment in the summer programs unit was due to expire on October 31,
1988 and would not be renewed. The Employer states that the Employee's performance
had been satisfactory and the reason for the non-renewal 'of her contract was the
elimination of these positions because of a major funding cutback. The whole branch was
drastically cut back; there was a budget reduction from $30,000,000 to $ 5,000,000. No
contracts were renewed. It was agreed that at some point during her employment, the
work she did can be viewed as continuing. One of her positions would not fall within
section 6 of Regulation 881. Mr. Ryder for the Union argued that at some point in time
the position ought to have been filled by a classified staff person. Mr. Labord on behalf.
of the Ministry disagreed with that. Counsel did agree with each other however that there
was continuing work and that therefore it did not fit s, 6 of Regulation 881.
Mr. Ryder appeared as Counsel for the Union at the 1991 hearing. His argument
was developed as follows: there are two types of Public Servants under the Public
Service Act. 1) Cfassified public servants appointed under either s. 6,or 7 of the Public
Service Act, and 2) unclassified staff appointed under s. 8.2 The latter employees are
governed by s. 6 of Regulation 881. .-
Appointments to the civil'service or classified service are made pursuant to
sections 6 and 7 of the Public Service Act.
6. (i) When a vacancy exists in the classified service, the deputy minister of the
ministry in which the vacancy exists shall nominate in writing from the list
of eligibles of the Commission a person to fill the vacar~cy.
(2) The Commission shall appoint the person nominated under subsection (1)
to a position on the probationary staff of the classified service for not more
than one year at a time.
2 Fon the definitions see page 13 hereof.
7. The Commission shall, if requested in writing by the deputy minister,
recommend to the Lieutenant Governor in Council the appointment of a
person on 'the probationary staff of the classified service, and the
recommendation shall be accompanied by the certificate of qualification and
assignment of the Commission.
8. (1) A minister or any public servant who is designated in writing for the purpose
by him may appoint for a period of not more than one year on the first
appointment and for any period on any subsequent appointment a person
to a position in the unclassified service in any Ministry over which 'he
presides.
(2) Any appointment made by a designee under subsection (1). shall be
deemed to have been made by his minister.
9. 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.
The relevant provisions of the regulations made pursuant to the Public Service
Act namely, section.6 of Regulation 881 are as follows:.
6 (1) The unclassified service consists of employees who are employed under
individual contracts in which the terms of erdpioyment are set and is divided
into,
,,, (a) Group 1, consisting of employees who are employed,.
(i) on a project of a non-recurring kind,
(ii) in a professional or other special capacity,
(iii) on a temporary work assignment arranged by the commission
in accordance with its program for providing temporary help,
(iv) for fewer than fourteen hours per week than nine full days in
four consecutive weeks or on an irregular or on-call basis,
(v) during their regular school, college or university vacation
period or under a co-operative educational training program;
(b) Group 2, consisting of employees who are employed on a project of
a recurring kind,
5
(i) for fewer than twelve consecutive months and for fewer than,.
(A) 36-1/4 hours per wee-~ where the position, if filled by a civil
- servant, would be classified as a position requiring 36-1/4
-- hours of work per week,
(B) 40 houCS per week where the position, if filled by a civil
servant, would be classified as a position requiring 40 hours
of work per week,
(ii) for fewer than eight consecutive weeks per year where the
contract of the employee provides that the employee is to
work either 36 1/4 hours per week or 40 hours per week;
/
.-l'-~ (c) Group 3 consisting of employees appointed on a seasonal basis for
" a period of at least eight consecutive weeks but less than twelve
consecutive weeks to an annually recurring position where the
contract provides that the employee is to work either 36 1/4 hours
per week or 40 hours per week.
Section 6 divides employees into. gro.ups and it authorizes fixed term agreements, ff such
are under individual contracts ~igned by the employee for fixed terms, they m'ust still fit
within section 6. If the appointment falls outside s. 8 of the Public Service Act, then the
grievor cannot.be a member of the unclassified service and section 6 of Regulation 881
plays no part and the individual contract of employment is a nullity. On the other hand
that in itself does not then make the grievor classified staff.
In Beresford 2, the Union argued that since the Board had found in Beresford 1
that the Grievors were improperly appointed to the unclassified staff, they were not
unclassified staff and that therefore they must be classified staff. The Board in Beresford
2 chaired by Mr. Samuels decided that this was not Correct. This was so because the
requirements for a proper appointment to the unclassified staff had not been met. Mr.
Samuels then asked what remedy the Grievors were entitled to. He found that they had
not been promised any employment, beyond their contracts, but looking at the collective
agreement, he found that it contemplates:
This bargain must have been-Teached on the understanding that certain kinds of
positions would be filled with classified employees and other kinds of positions
would be filled with unclassified employees, in other words, the parties provi(~ed..
only limited rights for unclassified employees provided that only certain kinds of
employees would be appointed to the unclassified service?
He wrote that the parties negotiated the relative rights of unclassified and ctassifiSd staff
in light of the fact that the unclassified staff would consist of employees who were working
on limited-term jobs (Group 1), or for less than regular hours (Gr:oup 2), or on a seasonal
basis (Gr°~p 3). Employees in the unclassified service would have fewer ri~ht'"~because
they had "lesser" positions.
Vice-Chair Samuels then went on to write at p 8:
tn our view, there must be a middle ground which is implicit in the collective
agreement. We are quick to acknowledge that we are moving on to thin ice
here. BUt .what else can we do when. we are dealing with employees who
are neither fish nor fowl?'The grievors were employed by the Ministry. They
were covered by the cellective agreement. But they were neither classified
nor unclassified employees, so their rights are not set out expressly in the
agreement. Therefore, their rights must be inferred from the provisions of
the collective agreement.
He concluded that they had greater rights than unclassified employees but that the
Board did not have the authority to turn the grievo~'s into classified employees. Since they
should not have been "appointed" to the unclassified service, they should not have been
engaged on simple limited-term contracts, and ther:efore they should be compensated for
abrupt termination of service. He then turned to section 40 of the Employment Standards
Ac__~t for an appropriate remedy.
Mr. Ryder argued that in Beresford 2 the Board was not looking to the Grievors'
pp. 5-6
?
individual contracts of employment as evidence of their employment, otherwise they could
not have been treated as dismissed employees. Furthermore, Regulation 881, se~tiofi-6
did not apply to them. Where does the Grievor in our case fit, asked Mr. Ryder..The first
remedy asked for is that the Board require the Ministry to treat the Grievor as having
classified status - not that the position is classified. This finds a basis in two approaches:
1. the requirement of the Collective Bargaining regime, i.e. the legislative structure and
2. on the facts of the case that the Grievor is entitled to be put in the position she would
have been put in if the'Ministry had'done right: i.e. there would have been a job Posting
and she would probably have been successful With respect to the first argument,
although Mr. Ryder is generally critical of the Beresford remedy, he does agree, with it that
unclassified .employees have temporary 'type claims and therefore are not like classified
employees. They are temporary type employees and on!y that can justif~ their reduced
rights. But in his submission., there is no third type of employee between.classified and
unclassified. Therefore; he submitted ~hat Vice-Chair Samuels did tJ~at when he spoke
about a middle ground at page 8 of his decision.
Mr, Ryder referred us to the SuPreme Court of Canada's decision 'in Public Service
Alliance of Canada v. The Queen and Econosult Inc. 91 CLLC 11 14,017. In that case, the
issue was whether certain contract teachers who taught at the Cowansvilte Penitentiary
could be determined by the Public Service Staff Relations Board ~o be public employees,
even though never so appointed by the Public Service Commission. In analyzing the
Board's jurisdiction, Mr. Justice Sopinka writing for the majority writes about the analysis
made by Mr. Justice Cory who dissented. At page 17 of the decision (CLLC p.12,163),
Sopinka J. writes:
Although Cory J.states that the teachers are found to be employees for collective
bargaining purposes' and not public servants for other purposes, I have some
difficulty reading'the Board's reasons that way. In paragraph 73 of the Board's
reasons it states that no one has contended that if they are such employees that
they are not members of the bargaining unit. The conclusion that the teachers are
employees of the Government of Canada is the basis for fio__dingLthat they are
included in the bargaining unit. A finding that they are employees of the
Government of Canada simpliciter would clearly exceed the authority conferred by
s. 33 and would fly in the face of s.8 of the Employment Act which expressly
reserves this power to the Public Service Commission. I will deal with the matter
on the narrower interpretation of the Board's decision as suggested by Cory J. His
approach is summed up in the statement that: "A person can well be a member
of a bargaining unit for collective bargaining purposes, and yet not be a public
servant entitled to all .the special benefits and prerequisites that flow from
membership in the Public Service."
In the scheme of'labour relations which t have outlined above there is just no place
for a species of d_e facto, public servant who is neither fish nor fowl. The
introduction of this special breed of public servant would .cause a number of
problems which leads to the conclusion that creation of this third category is not
in keeping with the purpose of the legislation when viewed from the perspective
of'a pragmatic and functional approach...,..
Finally, with respect to this issue, Sopinka J. concludes at p. 19:
No purpose is s'erved by extending its jurisdiction to employees outsi~ie' the public
service who have recourse to other labour relations legislation, either federal or
provincial.
Mr. Ryder argues that this decision stands for the proposition that where the
legislation creates categories, the parties cannot create other types of categories. In this
respect, he challenges Vice-Chair Samuel's search for a middle ground. He also argued
that Mr. Samuels sought this approach because he erroneously believed that the
Grievance Settlement Board did not have' the authority to turn the grievors into classified
employees. "Appointment" is within the exclusive domain of the employer pursuant to
section i8 (1) of the Crown Employees Collective Bargaining Act. (See: p. 9 of the
Decision in Beresford 2. In the Judicial Review of that Decision before the Divisional
Court, Chief Justice Callaghan wrote in the endorsement:
Mr. Stevenson (Counsel for the Board before the Divisional Cou, rt) concedes, in
light of Anderson, that this statement must now be regarded as incorrect and that
Board does have the ultimate remedial power to appoint an employee to the
classified service if it considers that remedy appropriate or a particular employee.
Notwithstanding the able argument of Mr. Riggs (Counsel for the Ministry), we
agree with this position insofar as it affects employees covered by the collective
agreement.
The Board however made it clear from its findings that whatever its remedial
jurisdiction it did not consider these grievances appropriate for the exercise of such
a drastic remedy.
To the extent there was error it was not material to the outcome of the grievances.
The Board based on its findings about the situation of these grievors fashioned its
own remedy and we cannot say that it was patently unreasonable in the exercise
of that jurisdiction.
Vice-Chair Samuels also chaired the panet which decided Greco-Tarantino which
was reviewed at the same time as Beresford 2 by the Divisional Court. Since the Grievor
had already applied to the Employment Standards Branch for payment in lieu of notice
of termination and for severance pay and was awarded both, Mr. Samuels concluded that
'no further remedy was needed. However, he does speak to a preliminary bbjection raised
by Mr. Craig Slater on behalf of the Ministry, namely, that the Grievor was not a "public
servant", as this term is defined in section l(g) of the Public Service Act, because she
was never properly appointed to either the clasSified or unclassified service. If not a public
servant, then the argument follows that she was not a member of the bargaining unit: see
Article 1.1 of the Collective Agreement.
Mr. Samuels did not accept that argument. He conclude, d at page 10 that the
Grievor was engaged to work as a public servant, all her contracts Said so, everyone
considered her one. Asa result of Beresford 1, she was determined not to have been
properly appointed under the Public Service Act, but concludes Mr. Samuels, she was
always considered to have been appointed under the Public Service Act and to have
been a public servant (Rage 10):
It would simply not. make sense to say now that she was not a public servant, and
thereby rob her of her Union representation and her right to grieve. Though neither
a member of the classified service nor of the unclassified service,, in our view the
grievor was "appointed under" the Public Service Act, and was a "public servant".
Therefore, we deny this second preliminary objection.
Mr. Ryder, however, agrees with Mr. Slater's submission that a person is not a
public employee if neither classified nor unclassified; the solution, he argues, is to correct
the anomaly i.e. for the Board to order an appointment of the Grievor to the classified
service. S. 24 ef the Collective Agreement provides surplus rights to classified staff. The
remedial power of the Board enables it to make an appointment to the classified staff. He
then referred us to the decision in Lethbridge et al and MOH G.S.B. # 1739/90. Briefly
stated the grievors in that case were appointed to the classified staff as a settlement of
a Beresford type grievance. There was no posting of the position and someone else then
grieved against that. The grjevors were not successful in the posting competition. The
Union argued among other things that they should not 'have been dismissed from the
classified service. Mr. Samuels writing for the Board at page 5 states that these grievors
were appointed to the Cassified service in compliance with section 6 of the Public Service
A_A.C..t. The fact that Article 4.1 of the Collective Agreement had been violated did not vitiate
the appointments to the civil service. Therefore, the Board held that the grievors remained
members of the classified service and could assert as such their rights under Article 24
of the Collective Agreement. This is the remedy that Mr. Ryder seeks for the Grievor in
the case of Mrs, Tsiotsikas. With respect to this Board's jurisdiction, Mr. Ryder also
referred us to Wei Fu and Ministry of Citizenship G..S.B. 1115/86 (5 March 1991).
Mr. Ryder then made reference to Mr. Slone's decision in Wagner and Ministry of
Citizenship G.S.B. 351/89. In that case, the grievor was a part-time employee on limited
term contracts. Mr. Slone found that-she had been improperly appointed to the
unclassified service. At page 16 of the Decision, he warned against fashioning a remedy
11
which ordered one side or the other to breach the Collective Agreement or act contrary
to a statute or regulation, in Wa~gfferTMr. Slone found that the griever had lost little by
virtue of the Employer's improper appointmer~t of her to the unclassified service. At page
!8, he writes:
Probably, the Griever would be no better off had the Employer treated the position
as it ought to have, namely as a part-time classified position?
The remedy which Mr. Slone fashioned was to order the Employer should it ever decide
to fill the position in the future, to post it in accordance with either Article 60 or Article 4
of the Collective Agreement and to Compensate the griever for her lost opportunity by
adding a requirement that the competition be open at least to the extent that the Griever
should be invited to apply and her application be considered in good faith by the
Employer. Mr. Ryder argued that that remedy violated Article 4 of the Coflective
Agreement. He further argued that a breach of the Collective Agreement and the statutes
and regular, ions is avoided by appoi.nti~g the Griever tO the classified Service.
Mr. Ryder then argued on the facts. He submitted that in forcing an appointment
to the classified staff, the Board would be putting the Griever in the same position she
would have been in had she been properly appointed. She did in fact work for years on
the job without complaint. He takes issue with both Beresford and Wagner for looking at
the last short terms contracts signed by the Grievers in those cases as being the
"bargains" made by them. Yet, the theory in Beresford was that that contract was not the
bargain. There was work to do, it was done and the Grievers, in his submission, should
not have been penalized because of the improper mode in which the job' was filled. In the
case of Tsiotsikas, there were 10 contracts and three years on the job. Furthermore, he
points to the delays in her case. (See: letter dated October 11, 1988 from W.G. Woffson,
There is no surplus list for part-time classified staff (See: Wagner p.8)
12
Appendix A). He maintains that she would have gone on surplus and at some stage
gotten a position. The le~er says that had any recruitment activity taken place, "your
application would have been entertained in competition for permanent positions," He
argues that.the change from Go-Temp to contract is the point at which the position ought
to have been posted; Go-Temp can be hired from outside the Government. Finally, Mr.
Ryder argues that if the middle ground approach is possible, the Grievor is closer on the
facts to classified staff. She wants to be placed on the surplus list and the remedies
fashioned in Beresford 2 and Wagner simply give the Employer a windfall.
Mr. Labord, on behalf of the Ministry, submitted that the Grievor was not classified
or unclassified and was not a Public Servant. Accordingly, if the Grievor was improperly
appointed to the unclassified service, this Board lacks jurisdiction as the Grievor is not'
covered by the Collective Agre:ement and is therefore not entitled to file a Grievance. He
relies on the.wording of the.recognition clause of the Collective Agreement, namely Article
1 which 'provides:
1.1 In accordance with The Crown Employees Collective Bargaining Act, the
Ontario Public Service employees Union is recognized as the exclusive
collective bargaining agent for all public servants other than persons who
are not employees withir~ the meaning of clause f of subsection 1 of Section
1 of The Crown Employees Collective Bargaining Act.
The relevant provisions of the CECB Act are:
1.-(1) In this Act,
(0 "employee" means a Crown employee as defined in the Public Service Act
but does not include, [exceptions omitted as not relevant to our inquiry].
See also s. 11 of Regulation 232 issued pursuant to CECB Act.
The relevant provisions of the Public Service Act are:
1. In this Act,
(a) "civil servant" means a person appointed to the service of the Crown by the
Lieutenant Governor in Council on the certificate of the Commission or by
the Commission, and '.'civil service" has a corresponding meaning;
(b) "classified service" means the part of the public service to which civil
servants are appointed;
(e) "Crown employee" means a person .employed in the service of the Crown
or any agency of the Crown, but does not include an employee of Ontario
Hydro or th,e Ontario Northland Transportation Commission;
(g) "public servant" means a person appointed under this Act to the service of
the Crown by the Lieutenant Governor in Council, by the Commission or
by a minister, and "public service" has a corresponding meaning;
(i) "unclassified service" means the part of the public service that is composed
of positions to which persons are appointed by a minister under this Act.
Since the Act contemplates someone who is not a public servant, its structure, Mr.
Labord submitted, is codsistent with the intention of the reasoning in the Supreme Court
decision in Econosutt. Such persons are employed by the Crown outside the scope .of the
Public Service Act and.within a common Iaw relationship. In his view, Vice-Chair Samuels
in Beresford 2 recognized that point when he referred to a middle ground. Furthermore,
the only way that anyone can fit within Article 24, is to have been appointed to a
classified position pursuant to Article 4 (Posting provisions) of the Collective Agreement.
He further disagreed with Mr. Ryder that the Grievor could have expected to have been
successful in a posting competition, especially if we accept Mr. Ry~er's theory that the
position she held should have been posted when she completed go-temp contracts. To
assume so would be to give the Grievor a wind-fall. The Divisional Court said that
appointing someone to the classified service would be a drastic remedy for the Grievance
Settlement Board. tn his submission, the circumstances for Ms Tsiotsikas were not any
more drastic than for Ms Beresford or for Ms Wagner. He distinguished Lethbridge' by
pointing out that the grievor in that case was already a classified employee. As in the
14'
Wagner case, the position no longer exists and may never again exist. The expectations
of the parties in these cases were really just that the unrenewed contract would give one
week's notice. He referred us to the Ontario Supreme Court decision in Laliberte v.
Viceroy Homes Ltd. (1990), 32 C.C.E.L. 117' with respect to the common law rules
relating to fixed term contracts. He argues that the Grievor's contracts were valid common
law contracts.
In reply, Mr. Ryder with respect to the Crown Employee point referred the Board
to its decision in Bressette and MOH 1628/87. Furthermore, he argued that Mr. Labord's
argument contradicted the actual intention of the parties as shown in the contracts and
the fact that the position paid at the equivalent rate for classified employees. The intention
was that the Grievor would be withi'n the public service. He then referred us to the GSB
decision in Greco-Tarantino and MCSS 405/89. In that case, 'Mr. Slater for the Employer
again argued the .theory that the grievor was not a public servant and could not grieve;
see: pages 9 - 11. Mr. Samuels writing for the Boar~l rejected that argument. Mr. Labord
in response replied that the Board's reasons would have required the Board to have
accepted that the Grievor was an unclassified employee. Furthermore, the point with
respect to Crown Employees as a separate category was not argued in Greco. Mr. Ryder
further argued that the Collective Agreement Recognition Article defines tl~e Bargaining
Unit in terms of Status rather than position, i.e. public servants. The Employer's argument
would create another non-bargaining unit. The Employer cannot avoid the distinction
between classified and unclassified employees.
Reasons for Decisions
There can no longer be any question that the Grievor was improperly appointed
to the unclassified service on a succession of recurring short-term contracts: this point
has now been settled by Beresford 1 and Bressette. Nevertheless, it has to be recognized
· that that during the Gdevor's contracts, both the Ministry and the Grievor understood that
the Grievor was part of the unclassified service. The collapse of these p~ans was due to
the success of the Union in the above two named cases. The rationale of those cases
was that when the work continues, it is must be filled by classified staff: as Mr. Mitchnick
wrote in Beresford 1 at p. 16:
The position to which the grievor was appointed ctearly was not "seasonal", has
no different hours or other conditions of employment than the similar positions to
which persons had been appointed to the classified service, and all of the evidence
we have as to the temporal nature of the positions points to the contrary of it being
. of a "non-r. ecurring" or "temporary!' kind of position. Yet, as discussed, we are
compelled to conclude that section 6 of the regulations, by its very terms, requires
an. appointment to the unclassified service under section 8 to fall within' one of the
categories set out in the regulations.' ....
Clearly, the Ministry has to assume responsibility for this error. It is the Ministry which
made the purported appointments and it is the Ministry which presumably kneW what
appointments could be made and which ones could not be made or let me put it this way:
the Ministry has the i'esponsibility to get it right, not the employee who simply took what
was offered. The test that is used in awarding damages is said to be to put the person
in the position in which she would have been in if the contract had not been breached.
Given' that the Ministry had' it wrong almost from the beginning, it is difficult to
contemplate where the Grievor'might have been had the Ministry not got it wrong. Indeed,
it would be almost pure speculation. Would the position have then been posted under
Article 4 of the Collective. Agreement? Would the Grievor have been successful or~ such
16
a posting? Or if it had been posted after she completed the Go-Temp phase, would she
have been successful. If the answers to those questions should be yes, then the Grievor
would have become classified and on the facts have been declared surplus when the
funds ran out, able to rely on her Collective Agreement rights under Article 24.
The Ministry obviously prefers to catl up common law rules alleging that her
expectations are determined by the short-term contracts the Grievor signed. I cannot give
weight to the common-law contract arguments. The Government does not hire employees
under common law contracts. Its authority as an employer is defined by statute. This
board has found that it did not follow that statutory authority and it cannot rely on
contracts which are inconsistent with that statutory authority and which the Grievor had
no real, . meaningful choice in signing.
Mr. Slone. in Wagner tried to remedy the situation by giving the Grievor the right
to compete should the position'ever become available again through a posting. Mr.
Samuels in Beresford 2 decided that the Grievor should have the same rights she should
have under the Employment Standards Act. Mr. Ryder argues for Article 24 rights for the
Grievor. Given the fiscal restraints at the time of this decision, the Wagner remedy seems
unrealistic. The Beresford 2 remedy is essentially a private sector remedy grafted onto
a public sector situation. This Board is obviously not restricted to any of these
considerations. Even the Article 24 remedy which Mr, Ryder asks for .may turn out in
these difficult times to be a chimerical remedy. What we seek is a practical realistic
remedy - one which compensates the Grievor for having been brought into the
government service improperly but through no fault of her own and served in that capacity
credibly over a significant period of time. We also need a remedy that will be effective in
dealing with an improper appointment. One of the criticisms of the proposal to give a
grievor in Mrs. Tsiotsikas's position classified rights is that she never competed in an
Article 4 posting. In that respect, t note that 4.3 provides:
In filling a vacancy, the Employer shall give primary cons.'ideration to qualifications
and ability to perform the required duties. Where qualificatiQns and ability are
relatively equal, length of continuous service shall be a consideration.
In this respect the operative language of Article 24 for which Mr. Ryder pleads is:
Where an employee is identified as surplus he shall be assigned on the basis of
his seniority to a vacancy in his ministry within a forty (40) kilometre radius of his
headquarters provided he is qualified to perform the work and the salary maximum
of the vacancy is not greater than three (3%) above nor twenty percent (20%)
below the maximum salary of his classification, as follows: .... .
The rest of the Article continues the same requirement i.e. that "the employee be
qualified to perform the work". While this does not have the exact competitive
requirements of Article 4, it still reqUires that the employee be qualified to perform tl~'e
work. MS Tsiotsikas ought to benefit in terms of seniority for her service and Article 24
prevents her being assigned, to ar~.y work for which, she is not qualified. In that respect, ..
for our purposes, I am satisfied that the Article 24 remedy will sufficiently maintain the
integrity of the civil service and indeed of the p'ublic service.
Accordingly, I conclude that the Grievor should be given an option to either accept
the severance rights she would have under the .Employment Standards Act as in
Beresford 2 counting her service as continuous, or if she chooses in the alternative, to
have herself declared surplus as if she had been classified staff, and to pursue her
possibilities under Article 24. I give her the choice because the Ministry made a mistake
and now there is no work available in her old position.
t wish finally to deal with the technical argument that the Ministry has made that
the Grievor is not a public servant and therefore cannot grieve. This argument has
already been rejected both by the Grievance Settlement Board and the courts (see
Greco-Tarantino supra and the court's endorsement in Bere_sford and GreCQ-Tarantino).
18'
fn addition to the arguments already set out in those various decisions, I Would add the
following: The Ministry made the improper appointment of the Grievor to the unclassified
staff. The Ministry cannot be heard to benefit from its own error: having purported to
appoint the Grievor to the public service, it wilf not now be heard to argue that this Board
may not treat the Grievor as a public servant. To countenance such an argument would
be to condone actions by the Ministry that undermine both the collective bargaining
regime in the Province of Ontario as set up in the ~ Act and the public employment
regime contemplated by the Public Service Act and years of civil service reform.
Furthermore, the legislation and the collective bargaining regime do not contemplate a
right to create some kind of unrepresented parallel Crown Employees service. If the
Grievor was not legally appointed under s. 8 of the Public Service Act, .and no other
legislation can be pointed to, then the Government cannot make an argument that she
is somehoTM or other legally appointed to the Crown EmpkJyee service. A deputy, minister
of a ministry appointed under its organic legislation or tine chair or a vice-chair appointed
by the Lieutenant Governor in Council to the Grievance Settlement Board pursuant to s.
20 (3) of CECB Act would fit the definition of a Crown Employee under the Public Service
Act, though he or she is excluded from. being an employee within the meaning of that
term under the CECB Act by the provisions of its definition seciion. These are examples
of persons who are Crown Employees but who are not public servants because not
appointed under the Public Service Act. But they are still statutory appointments. No
authority was quoted to show any residual common law or prerogative authori, ty to appoint
a person to be a Crown Employee. As I said in Dafoe and Ministry of Natural Resources
(1868/87) at p.22 in dealing with the issue of separate terms in the written contracts and
a right to terminate:
The same issue apPlies, to the term on the back of the individual contracts signed
by the grievors (paragraph t2). The Ministry cannot expand its statutory powers
of release and termination by a separate contractual term. The Deputy Minister's
power to hire and release is governed by statute. This reflects the historical
movement towards a professional public service. The union counsel declined to
enter into a[ discussion in this case as to whether within the context of collective
bargaining, the Deputy Minis(er could enter into any separate contracts with
individual employees. Certainly the Deputy Minister cannot enter into a contract
that is inconsistent with the collective agreement or exceeds his statutory powers.
Although the point was not argued on the basis of any research or authority before
me, I seriously doubt that there is anything left of the Crown's historical prerogative or
common law right to appoint Crown employees; in other words, t think the Crown's power
to employ is now wholly statutory. But in any event, even if there is o.8..¢_m___e_ residual
prerogative power to employ, it cannot legally be exercised so as to undermine the
statutory and collective agreement regime. Nor indeed as we have said abov.e, did the
Employer even purport to exercise any prerogative or common law power to appoint; it
purported to exercise its authority under s. 8 of the Public Service Act. Acco'rdingly, the
Grievor although improperly appointed to the public Service, entered onto and performed
the duties of a public servant for' a protracted period of time. Therefore, in my opinion, it
is within the jurisdiction of this Board to entertain her grievance.
20
Accordingly, her grievance is allowed as set out above and this panel will remain
seised over the implementation of tine remedy.
Dated at Toronto thisZ, tt~ day of March, 1992.
Thomas H. Wilson Vice-Chair
P. Klym Member
A. Merritt Member
Appendix "A" ~'~
0
~~ Skirls Format[on
~ Development professionnelle
Ontario ~ ~
500 Un~e~s~t5 Avenue
6~h F~ oo~ ..
Toron[o, Ontario
N5G 3 V7
(4~6)965-7~34
October ll, 1988
Ms Teresa Tsiotsikas
19 Riverdale Avenue
Toronto, Ontario
M4K lC2
Dear Ms .Tsiotsikas:
This is in response to your grievance filled at .Stage 2-
of' the grievance procedure on August 29, 1988. Your
grievance claims .you have been denied the rights and
benefits of a civil Servant under the Collective
Agreement and your desired settlement i s to be
reinstalled'in employment, and compensated for lost wages,
benefits and. entitlements Onjustly withheld.
I ha.ve reviewed the ci.r'cumstances of your case,
including representations made by Mr. Ball Lon your
behalf in our meeting of October 3, and find as follows:
Your initial contractual employment in 1985 was as a
result of workload and pos'ition vacancies. Subsequently
a series of management changes and organizational
reviews took place resulting in delays to recruitment
activity. While it is agreed that there was work to be
done and there was a job description in place, approval
to filll vacant positions did not, in fact, occur until
March 1988. Recruitment activity was then delayed
further as a result of other Ontario Public Service
employees having been declared surplus which
necessitated clearance of all OAG ~positions through the
Redeployment Unit of the Human Resources Secretariat.
Thi. s took some time and when approval to continue was
finally provided, the Ministry had imposed an overall
hiring freeze in an effort to ensure that it did not
exceed its salary and wage allocation. It is my
understanding that had any recruitment activity taken
place, your application would have been entertained in
competition for permanent positions.
4 2 -
It is unfortunate that the position Uid not go to
competition while you were on contract, but I would
point out that at all times the contracts you entered
into and signed did indicate that they were "not to be
construed as leading to continuous employment, and may
be terminated by either party upon one week's notice"
You were, in fact, notified on August 9, 1988 that your
contract was due to expire on August 31, 1988 ano~ woul'd
not be renewed.
As your'contractual employment was as a "public servant"
rather than a "civil servant" you are not entitled to
the benefits of a "civil servant".
'Accordingly, your grievance is deniedI.
Yours truly,
William G. ~olfson~
Director [
m
Labour' Market Research Group
cc: Don 8all, OPSEU
Glenna Cart, Deputy Minister
Personnel Branch