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HomeMy WebLinkAbout1989-0062.Copeman.89-11-03 '..'~ i,~ ~; · ' '~=' .., ONTARIO EMPLOY£SDELA COURONNE · ' 4:, r, CROWN EMPLOYEES DE L'ONTARIO BOARD DES GRIEFS 180 DUNDAS ST.REET WEST, 'TORONTO, ONTARIO. MSG ~ZS. SUITE 210(; TELEPHONE/TELePHONE 180,'RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8 - BUREAU 2100 (416) 5~8.0688 ~ 62/89 IN TEE ~ATTER OF AN ARBITRATION Under THE CROWN EMPLOYERS COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: '- ' OPSEU (Copeman) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Empl oye r Before: ~' M.R. Gor. sky Vice-Chairperson ~'~" J. McManus Member M. 0' Toole Member For the Grievor: j. Kovacs Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: He Laing Counsel Fraser & Beatty Barristers & Solicitors Hearing Date:' July 20, 1989 Znterim Oeci sion The grievor, D.C. Copeman, filed a grievance on February 14, 1989, claiming that he had been dismissed without just cause. The reply of the employer .at the second stage of the grievance procedure (exhibit 3) signed by J.R. Grayston, District Manager, Kapuskasing, dated March 21, 1989, denied the Grievance on the primary grounds that it was invalid as a result of the operation of art. 27.13 of the collective agreement, because it had been filed more than 20 days from the date of his dismissal. The reply of the employer also stated that apart from the issue of time limits and the arbitrability of the Grievance, the Grievor had been discharged for just cause, reference being made to alleged incidents when the grievor is said to have failed to have properly executed his "responsibilities". At the commencement of the hearing, counsel for the employer raised an objection to the arbitribility of the Grievance based ~on the failure of the grfevor to file the Grievance ]n time, as had been raised .in the letter above referred to. We proceeded to to hear argument from counsel for the employer, who completed her argument. At the conclusion of the argument of counsel for the employer, we directed that counsel for the union deliver his argument in writing, and counsel 'for.the employer was then to respond to it by way of reply..We have now received the written arguments from counsel and our interim award follows. The grievor was employed by the Ministry of Natural Resources for periods of at least eight weeks for at least four seasons while in the position of Junior Ranger Foreman. The Grievor's season in 1988 ended on August 28, 1988, and on October 21, 1988, he received a letter from D.A. Ctillar, Acting District Manager, Cochrane District (exhibit 1) informing him that he would not be recalled to the position of Junior Ranger Foreman., because of Mr. St~llar's hav~ng concluded that the grievor had failed to properly carry out 'his responsibilities as a supervisor. Mr. $titlar also stated that : ". in reviewing the events of. the past summer ..." he found that ~e gr~evor was "... not suited to the position of Junior Ranger Foreman The position of the employer was that the grfevor ceased to have any rights under the Crown Employees Collective Bargaining ~ct ("CECBA")at the. end of his contract on August 28, ~98B, and that after the grievor's contract ended his only rights, if,indeed,he had any rights,had to be found in the collective agreement. As the collective agreement contains mandatcry time limits which the grievor did not meet, the grievance must be deemed to have been.withdrawn by the express terms of ar't. 27.13: "Where a grievance is not proceeded within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn." Counsel for the employer emphasized that she was not agreeing to the proposition that the grievor had any rights under the collective agreement after his seasonal employment for 1988 ended on August 28, 1988. What she was arguing was that if rights existed for the grievor under the collective agreement, "...the mandatory time limits not having been met, the Board is without jurisdiction and the question of what those rights might have been is of no assistance and need not be decided." Counsel for the employer also argued that the provisions '6-f section 18(2) of the CECBA were not available to the grievor. That article provides : "In addition to any other rights of grievance under a collective agreement, an employee claiming c) that he has been ...dismissed ... from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement .... " The basis for the employer's position that the grievor had no rights under the CECDA arises from its reliance on section 9 of the Public Service Act ("PSA") which provides : - "A person who is appointed to a position in the public ~ servant at the expiration of that period " '" The argument of the employer proceeds that the effect of s. 9 of the PSA is to to cause the ~rievor, at the expiration of his unclassified appointment, to cease being a public servant. In further pursuing her argument, counsel for the employer relied on the relationship between the CECBA and the PSA : "Under the CECBA : S. 'employee' is defined in s. 1(1). (f) as 'a Crown employee as defined in the Public Service Act. ii.'public servant' is defined in s. 1 (1) (m) as ~.~i having a meaning corresponding to that in the PSA. '.':·:, Under the PSA; iii. 'crown employee' is defined in s.1 (e). as a person employed in the service of the Crown. All persons employed by the Crown are. crown employees. iV. 'public-servant' is defined in s. 1 (g) as a person appointed under the PSA . Thus while ell public servants are crown employees not all crown employees are public servants. '. "During the period of his contract the Grievor was a public servant and thus a crown employee but by operation of s, 9 of the PSA at the expiration of that contract on August.28, 1988 he ceased to be a public servant and thus ceased to be a crown employee. "A person who is not a crown employee is not an employee for the purposes of s. 18 of CECBA. "S. 18 (2) confers rights only' on emloyees, this does not include the grievor after August Counsel for the grievor argued that seasonal employees, such as the grievor, are at al! times "employees" within the ambit of the PeA and the CECBA, and that all employees under the latter Act "have a right to a hearing of dismissal cases, even where the time limits under the affreement have not been met." Counse! for the grtevor relied on the case of ~e Keel~nc, G.S.B. 0045/78 ( application for judicial review dismissed, 30 0.R. (2d) 662,(Div. Ct.))~ where the 8card held that the time limits stipulated in the collective agreement cannot deny a grievor the statutory/ right to arbitration prov. ided in the circumstances set out in s, 18 (2) of the CECBA. Reference was aiSC made to Re Kingston, G.S.B., 2487/87, where the Keeling case was followed. Counse! for the employer acknowledged that should this Board decide that the grievor has rights under the CECBA then the principle decided in the Keelina case would app.ly. Counsel for the grievor, di'd not refer to s. 9 of the PSA directly, although counsel for the employer relied on it in the presentation of her oral argument at the hea~ing and in her written ReDly. From his further argument, however, it appears that counsel for the grievor did not regard that section as being appticabl~ to the case of the grievor whom he did not regard as having been appointed to a position in the public service for a "specified period". The grievor falls under Group 3 in the unclassified service as defined in s.6 of Regulation 881 to the PSA which is made up of "employees appointed on a seasonal basis for a period of at :.. least eight consecutive weeks but less than twelve consecutive months 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". Counsel for the grievor relied on Re Beresford, G.S.B. 1429/86, Jn support of his argument that the grievor was, at all times, an employee under the CECBA. As in this case, "the key to the employer's position "was section 9 of the PSA. (Beresford at pS.) Further. at p.5, there is a statement relied on by counsel for the employer: "Thus, if one assumes the minister or his designee acted within his or her authority to'appoint an individual to a fixed-term employment contract in the 'unclassified service', that person by operation of the statute ceases to be employed (or ceases to be a 'public servant') upon the expiration of the period of the contract .... " Counsel for the employer added : "That is also the situation before this Board." In the Beresford case the above statement was unnecessary for the decision because the Board merely made a declaration that the grievor had not been properly appointed to the unclassified service. In addition, in the Beresford case., the significance of s. 9 of the PSA to the facts of the case was that by its operation an employee was not dismissed but the employment "ceased". What was of concern to the panels in the cases referred to in the Beresford case was the fact that there was "no disciplinary element whatever" (Re Mousseau, 1182/85) Nor did any of those cases 'concern seasonal employees. In Mousseau, the. other concern, which does not apply in this case, was that if the case became a~b'~.a'bl~'e,-~the case of fixed term contracts) the employer would be deprived "of the capacity to recruit personnpl required temporarily but not permanently. (Mousseau, at p.10) None of these concerns affect the case of seasonal employees. If the.argument submitted by counsel for the employer is developed to its logical conclusion, it n%ust mean that after the conclusion of,the season of employment (August 28, ]~98B~ in this case) the grfevor was not only not an employee for the purposes of the CECBA but was also not an employee under the collective agreement, as the recognition article (I) only applies to persons who are employees under the provisions of the CECBA (s. l(1)(f). This interpretation would have the effect of making articles in the collective agreement that usually operate after the end of the seasonal employment precatory and incapable of being enforced by a person in the position of the grievor once the season . employment had ended for the year. Seasonal empoyees, unlike many other kinds of unclassified service employees, are. defined as "employees" under the CECBA. Having achieved employment status for the purposes of the CECBA, the significance and duration of that status is expanded upon in other sections of the Act. Section 7 o[ the CECBA deals with 5 permitted areas of bargaining which includes the right to bargain over "reappointments of employees", The section does not refer to the reappointment ofpersons. The parties did , in fact, ~eg0ti~e~ and come to agreement with respect to seasonal employees, in art. 3.20.1: 'Seasonal employees who have completed their 'probationary period shall be offered employment in their former positions in the following season on the basis of seniority. Thus, a seasonal employee remains an employee, under the CECBA, for the purposes of reappointment even after the end of the period of his seasonal employment. This conclusion is reinforced by the provisions of art: 3.19.2(d) of the collective agreement which provides for the loss of seniority by seasonal employees in certain named ~c~rcumstances, including where the seasonal employee is : "... unavailable for or declines an offer for re-employment as provided in Section 3.20 (Job Security)..." Art. 3.19.2(e) provides that seniority will be lost where the seasonal employee "ceases to be in the employ of the ministry for a period of more than twelve (12) months." The use of the term"employee? in the context of'the CECBA treats a seasonal employee as an employee for the purposes of the AGt even after the end of the seasonal period' of work. The ~ubmission made on behalf of the employer was that employment status under the CECBA ended after the completion of. the seasonal period of employment. This would also mean that the employee's seniority was also lost. Such an interpretation would fly in the face of the clear language of the C~CBA. Under the-article negotiated in accordance with the provisions of s. 7 of the CECBA, a seasomal employee loses seniority (art. 3.19.2 (d)and(e)) in certain circumstances.This must apply to situations occuring after the end of the period of seasonal employment. In the case of the grievor, we are not dealing with a situation contemplated by s. 9 of the PSA, where the language refers to the appointment of a person to the public service. Here ,we are, by acknowledgement,dealing with an employee who has been reappointed pursuant to a provision in the collective agreement the neqotiation of which js permitted in the CECBA. In the cases cited to us, where it was indicated that s.9 of the PSA applied,'the Board was dealing with facts where it was not possible to view the grievors as being entitled to the status of an employee who has been reappointed rather than appointed for a specified per. iod. ~ In the circumstances, the grievor having failed to meet the mandatory time limits for fi]ing a grievance (art.27,13), the grievance would be deemed to have been withdrawn. Because I have found the grievor to be an employee within.the meaning of the 6 CECBA, and,' therefore, able to avail himself of the right of grievance provided for under s. 18(2)(c) of that Act, his' grievance may be processed in accordance with~ the grievance procedure provided for in the collective agreement, notwithstanding the failure to meet the mandatory time limits contained in the collective agreement. However one views the action of the employer (whether as a dismissal or as an a¢.t of discipline) the section(18(2)) applies. This is not a case where the employer claimed (at least prior to the date of hearing) that the grievor had not been, at the very least, disciplined. The failure to reappoint the grievor to his former position was at no time stated to be for other than disciplinary reasons. Because the grievance has been found to be arbitrable, for the above reasons, it is unnecessary to address the other arguments 'in favour of arbitrabflity raised by counsel for the grievor. I am referring the matter to the Registrar in order that a date for the hearing of the matter on its merits can be arranged and the parties notified. Dated at Toronto, this 3__ day of N0¥er~ber , 1989. M.R. ~orsk¥ - Vice- Chairperson / ~ '7' Ji'M~Manus - Member M. 'O'Toole - Member <;. '.