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HomeMy WebLinkAbout1988-0865.McClelland.92-03-18 ONTARIO EMPLOYI~S DE LA COURONNE CF~OwN £MPLOYEE$ DE L'ONTA RIO GRIEVANCE CpMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, .SUrTE 2t00, TORONTO, ONTARIO. 180, RUE OUNOA5 0UEST, BUREAU 21~, TORONTO (ONTARtO). M5G 1Z8 FACSIM~LE/T~L~COP/E': (4~6) 326-1396 865/88 [~ THE ~E~ OF ~ ~[T~TZON Under THE CRO~ ~P~YEES COL~CT~ Before THE GRImaCE SETTLE~ BO~ BET~EN OPSBU (McClelland) . Grievor - ~d - The Cro~ in Right of Ontario (Minist~ of ~bour) Employer BEFOg: S. Stewart Vice-Chairperson W. Rannachan Me, er D. Montrose Me, er FOR THE A.'Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J. Brooks EMPLOYER Counsel Genest, Murray Barristers & Solicitors FOR THE P. Day THIRD PARTY Industrial Health & Safety Branch Ministry of Labour HE~RING May 17, 1991 ..' DECISION In a grievance dated September 7, 1988, Ms. B. McClelland alleges that she was improperly denied a promotion to the position of Clerical Stenographer, classified as OAG 8. The successful applicant, MS. P. Day, was present at the hearing, representing herself. This grievance was originally heard before another panel of this Board. However, the Vice-Chairperson of the panel became ill and was unable t~ complete the decision. Accordingly, a new hearing was scheduled before the present panel.. Following the hearing on May 17, 1991, counsel f~r the Union and the Employer submitted additional decisions and replied to the submissions each other, a process which carried on into the fall of 1991. At the time of her application, Ms. McClelland was not a member of the classified service. She was a :nember of the unclassified public service and was employed on one of a series of contracts. It is the position of the Employer that since Ms. McClelland was not a member of the classified service at the time of the grievance she is not entitled to challenge the Employer's failure to award her the position pursuant to Article 4.1 of the Collective Agreement. This position is based on the fact that the Collective Agreement provides that only certain of its terms, not including Article 4, apply to unclassified employees. It was the position of the Union, based on the Beresford line.of decisions, that the grievor was performing work that ought properly to have been the work of a member of the classified service. The submission of the Union was that since Ms. McClelland was performing the work of a classified position she ought properly to be granted the status of a classified employee and thus is properly entitled to the benefit of Article 4.1. Subsequent to her application for the position referred to above, Ms. McClelland's contract expired and Was not renewed. She submitted a grievance alleging that she had been unjustly dismissed, kt the outset of this hearing Mr. Brooks submitted that the hearing with respect to the posting grievance should be adjourned pending a resolution of the dismissal grievance. Mr. Brooks submitted that it is in the context of a discharge grievance rather than a competition grievance that an empolyee's status ought to be determined. Mr. Ryder advised the Board that he had no objection to the consolidation of these grievances but that he objected to an adjournment of the hearing. Mr. Brooks was unable to obtain instructions with respect to the consolidation of the grievances. Mr. Ryder argued that a submission from the Employer that the hearing should be adjourned should not be entertained by the Board at this point. The basis for this submission was that this matter had previously been heard by this Board, apparently without any objection on the part of the Employer with respect to it being heard prior to the dismissal grievance. It is now being reheard, after a considerable delay. It was apparent that evidence and argument with respect to the entire preliminary matter could be completed in a day and, accordingly the Board reserved on this issue and heard all of the evidence relating to the preliminary matter. Having considered'i the matter, we are inclined to agree with Mr. Ryder that in light of the particular history of this case it would be inappropriate to consider deferring the determination of the competition grievance, giVen the unfortunate delay that has already taken place and considering the fact that this matter proceeded to a hearing without such an abjection being raised. In any event, while there are some instances in which this Board has adjOurned a competition grievance of an unclassified employee ~pending the resolution of a dismissal grievance we are not convinced that this is appropriate in all instances. %The non-renewal of a dontract is j~ust one situation in 'which the issue of whether or not an employ~ee has been properly appointed to the unclassified public service and the ~appropriate remedy for 'such an improper appointment may be put in issue. The unsuccessful application for a classified position is another situation. We cannot accept Mr. Brooks' submission that it is inappropriate for us to consider the Union's submission · that Ms. McClelland ought to be appointed to the classified service in the context of thi~ grievance. We are not prepared to defer the determination of this grievance pending the determination of-the dismissal grievance. We will first set out the facts relating to Ms. McClelland's employment in the ontario public service. Ms. McClelland commenced her employment with the Ministry of Labour in its St. Catharines office on April 7, 1986, as a Clerk Stenographer. At that time she was in a Go-Temp position and she worked on a part-time basis. Ms. McCle~land entered into the~ first of a series of contracts for an unclassified position on December 3, 1986, for the period December 1, 1986 to March 31, 1987. This contract indicates that she continued .to be 'employed on a part-time -basis however Ms. McClelland testified that she commenced performing full-time work at this time. ~s. McClelland subsequently entered into a continuous series of Contracts' for full-time work, the last of which expired December 31, 1988, which was Ms.~ McClelland's last day of work~ ~s. McClelland testified that the majority of her work 5 - entailed clerical work in connection with the establishment and maintenance of files relating to the Human Rights Commission. She also performed work relating to the Emplo~fment Standards Ac__~t, as well as health and safety matters. There were two full-time classified Clerical Stenographers employed by the Ministry of Labour in its St.' Catharines office at that time. While Ms. McClelland primarily performed work with respect to Human Rights Commission matters she also assisted with the work relating to employment standards and health and safety matters. Except for her final contract, all contracts were with the Ministry of Labour. As a result of the transfer of the · Human Rights Commission from the Ministry of~ Labour to the ~ Ministry of Culture and Communications, Ms. McCletland's final contract, for the term October 2, 1988 to December 31, 1988, was with the Ministry of Culture and. Communications. This contract indicates that her position was at the OAG 6 level. Ms. McClelland, along with other employees, was advised of the transfer by letter dated March 23, 1988, to be effective April 1, 1988. As the letter' indicates, however, this ~transfer had no immediate impact on Ms. McClelland's conditions of employment. She remained in the Ministry of Labour's office in the same location. It appears, however, that at'least during the period of the last contract, Ms. McClelland was performing duties exclusively in relation to Human Rights Co.~mission matters. Ms. McClelland applied.for a classified Clerical Stenographer posit%on with the Ministry of Labour's St. Catharine's office. The position was classified at the OAG 8 level. The position description is dated April~15, 1988. We were not advised of the date of Ms. McClelland's application, however we presume that she applied prior to the closing date of May 13, 1988. The first paragraph of the position description indicates that the position involves; "skilled typing, filing, clerical and reception duties for the Employment Standards, Construction Health and Safety, Industrial Health and Safety, and Human Rights Branches". Ms. McClelland stated that the duties described in that position description "were not any different from the ~ob that I was doing". This position came about as a result of the resignation of one of the two full-time classified employees. Ms. McClelland Was not, the successful applicant for this position, and hence her grievance of September 7, 1988. As previously noted, Ms. McClelland'~s last contract expired on December 31, 1988. Subsequent to the cessation of her employment a Clerk Stenographer position fo~ the Human Rights Commission in the St. Catharines office was posted. Ms. McClelland stated that she understood that position to be the one she was filling at t.he time of the cessation of her employment. She was not the successful applicant for that position. She did not file a grievance with respect to this competition. Of course, she was no l'onger an employee at this point. Ms. C. Beange testified on behalf of the Employer. Ms. Beange was involved in the transition of the Human Rights Commission from the Ministry of Labour to Ministry of Citizenship. Part of her responsibility in this regard was overseeing what she described' as a "temporary backlog problem" in the Human Rights Commission. She stated.that in November, 1985, management board approved funding for twenty-eight positions in the Human Rights Commission throughout the province in order to deal with the temporary backlog problem~ Ms. McClelland's position was one of the positions provided for by this temporary funding. There was a subsequent recognition that the requirements were not of a temporary nature. A request for permanent funding was made in January or February, 1987 and it was received in April, 1987. Funding was received for 28 clerical employees on a permanent basis. Ms. Beange stated that this permanent funding included funding for Ms. McClelland~s position in St. Catha'rines. Ms. Beange agreed with Mr'.. Ryder in cross-examination that Ms. McClelland's position "had an indefinite future" as of January, 1987. However, at that time it had not been determined which particular geographic areas would be allocated permanent positions. The transfer of the Human~Rights Commission from the Ministry of Labour to the Ministry of Citizenship and~ Culture was announced in September 1987, to be effective April 1, 1988. Ms. Beange stated that the new management team determined that job audits would be carried out throughout the Commission in order to decide where the permanent positions were required. It was Ms. Beange's recollection that the job audit in the St. Catharines office was carried out on September 4, 1988 although she was no longer in the position at that time. It is clear from the evidence that the facts of this case fall within the paramaters the Beresford decision. At the time of her application for OAG 8 classified position and the September 7, ~1988 grievance Ms. McClelland was performing work that was continuous and ongoing in nature. The nature of her duties did not fall within any of the $itua~tions encompassed by the groups, set out in section 6 of Regulation 881 as it existe~d at that time. Accordingly, at the relevant time, her appointment tO. the unclassified public service was improper. We turn now to the issue of the appropriate remedy in this instance. There has been some evolution on the issue of the appropriate remedy in "Beresford" cases. In the remedy portion of the Beresford/Milley decision, 1429/86, 1972/87 (Samuels), the Board expressed the view that it did not have authority to order that an employee become a member of the classified public service. In Wagner 351/89, 352/89, (Slone), the Board expressed the same view. However, this issue ~has been put to rest by the November 28, 1990 decision of the Divisional Court, dealing with the Beresford/Milley remedy decision. This decision states that the Grievance Settlement Board has authority to order the appointment of an employee to the classified service, if the Board deems that to be the appropriate remedy. However, the Court characterizes· it~ as a "drastic remedy". It was Mr. Ryder's submission that~ upon finding that an unclassified employee was a "Beresford" type employee, the Board is compelled to order that the employee boe a classified employee. Mr. Ryder referred the Board to a March 22, 1991 decision of the Supreme Court of Canada in Econosult Inc., which, in his submission, established that a person in the position of Ms. McLelland must be either a classified or unclassified employee and, in the words of the-Court at p. 17, can be "neither fish nor fowl". In Econosult, the Court reviewed a decision of the Public Service Staff Relations Board, dealing with the issue of whether certain persons were "employees" Within the meaning of the relevant legislation. The .Board's finding that these persons were "employees" was quashed. One of the bases upon which the decision was quashed was that its effect was the creation of a group of employees who were members of the public service for collective bargaining purposes but were not members of the public service for other purposes. It was in this context that Mr. JuStice Sopinka stated for the majori~ty that: In the scheme of labour relations which I have outlined above there is just no place for a species of de facto public servant who is neither fis-~ nor ~owl. The introduction of this special breed of public servant would cause a number of problems which leads to the conclusion that creation of a third category is not in keeping with the purpose of the legislation when viewed from the perspective of a pragmatic functional approach. We cannot accept ·Mr. Ryder's submission that the effect of this decision is to compel the Board to conclude that the only appropriate remedy in a "Beresford" type case is an order ·that the employee is a member of the classified service. We note that this argument'was rejected by this Board in E1-Korazati, 775/88,' (Samuels) and Senior, 2184/90, ('Roberts). The analysis in the Econosult decision is with respect to a fundamentally different ·set of circumstances, that is, the establishment of bargaining rights for a class of employees that is not contemplat·~d by 11 the relevant statutory' framework. In a "Beresford" type of case the Board is attempting tO determine the appropriate remedy in a situation that involves the improper use of an unclassified employee. The Board has broad discretion with respect to the appropriate remedy ~in any situation. We do not accept that the Econosult decision compels the conclusion that the only appropriate remedy in a "Beresford" situation is an order that the employee be appointed as a classified employee. There are instances of "Beresford" cases in which this Board has ordered that an employee be appointed to the classified service. In Blondin, 78/89, (Keller), the Board ordered the appointment of three grievors to the classified service. In that case the grievors had applied for and 'obtained positions in the classified Service subsequent~to their grievances challenging the propriety of their appointments to the unclassified service. The Board ordered their appointment to the classified service .twenty days prior to the filing of their grievances. The Board stated that this was not a speculative remedy based on what might have happened if their positions had originally been posted as they should have 'been. The grievors applied for those positions and had been successful. In Canete, 2192/90, (Simmons) the Employer conceded that the grievor had been improperly appointed to the unclassified service. It appears that her positio~ as a clerk became redundant as the duties of her position were reassigned to secretarial positions in the classified service. In that decision the Board ordered that the grievor be placed on the surplus list in the classified service pursuant to Article 24 of the Collective Agreement. In the case at hand, the issue of the appropriate reme~dy for an improper appointment to the unclassified service arises in the context of a grievance relating to a competition for a position which involves duties .similar to those that Ms. McClelland had performed as a member of the unclassified service. In Hislop, 1051/88 (Barrett) and Senior,- supra, the Board dealt with situations in which the grievors were challenging competitions for positions they had filled while unclassified employees. The Board found in both those cases that the grievors had been improperl~ appointed to the unclassified public service and ruled that the appropriate remedy was to allow the competition grievance to proceed. However, the Board declined_ to order that the grievor be appointed to the classified s~rvice. It is our view that this is the appropriate approach to be taken in this instance as well. We are not convinced that an order appointing Ms. McCle~land to the' classified public service is apprOpriate. %~hether or not she would have been successful in a competition for her position, had it been made a classified position and posted earlier,' is a speculative matter. The circumstances of this case are not. similar to those in Canete and Bl°ndin, nor are there "e.xtreme" circumstances in this case, such as those referred to at po 18 of the Senior decision. Ms. McClelland was improperly appoint'ed to the unclassified service and an opportunity to challenge her unsuccessful application to a Clerk Stenographer position performing duties that she had performed while a contract employee is an appropriate remedy. While this position cannot precisely be characterized as the position Ms. McClelland was filling at the time of the posting, this matter does not cause us to question the propriety of allowing her to proceed with the grievance, as the evidence established that she had been performing the ki.nd of work referred to in the position description. Accordingly, we reject the Employer's preliminary objection and direct that the competition grievance proceed. The hearing is to be scheduled by the Registrar, , 14 in consultation with the parties. Dated at Toronto, this 18 day of March, 1992 S. L. Stewart - Vice-Chairperson W. Rannachan - Member D. C. Montrose - Member