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HomeMy WebLinkAbout1989-0291.Anderson et al.90-02-28 ',. ,; ONTARIO EMP~.oYE$ DE LA COURONNF CR 0 WN EMP~. 0 YEES DE L 'ON T4 R,~Q GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS TSO .DUNOA$ STREET WEST, SUITE 2100, TOPONTO, ONTAFtlO, MSG 1Z8 TELEPHONE/T~-££PHQNE: (476) 326- ~35~ 150, FlUE DUNDAS OUEST, RUREA~J 2100, TORONTO (ONTARIO)..MSG 1Z~ FAC$IMILEIT~L'~COPiE : (4 16)'326- %396 291/89,292/89,293/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before. THE GRIEVANCE SETTLEMENT BOARD BETWEEN .. OPSEU (Anderson et al) Grlevor - and.- The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: N. Dissanayake Vice-Chairperson rW. Rannachan Member F. Collict Member FOR THE D. Wright GRIEVOR Counsel Ryder, Whitaker, wright & Chapman Barristers & Solicitors FOR THE S. Gleave EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart Storie Barristers & Solicitors HEARING May 5, 1992 291/89,292/89,293/89 BOARD ORDER Attached is the Memorandum of Settlement which the Darties agreed would be made an Order of the Board. DATED at Toronto, this 29th. day of July, 1994. N. Dissanayake, Vice-Chairperson W. Rannaahan, Member F. C~l~/~i~, Member " - We the undersigned give authorization to the Law Firm of Torkin and .Manes -and/or Mark Reynoids to request that the Memorandum of. Agreement' for the grievance, between the Ontario Public service Employees Union (Anderson et al) and The Crow~ in Right of Ontario. (Ministry of Natural Resources), according to Paragraph ~ of. the Agreement, be made an order of the Board. 'OPSUE No. 89~921-923 GSB No.291-293/89 Dated at Blind River., this ~5 day of ~ ,1994 Mr. CHarles Anderson "/Witnsss Howard Law Ron Lessard ' BL ND RIVER o ,s u .o, mmse - (]OB No.' 291-293180 IN TIlE MA-I'rER OF THE (~IIEVANCE BETWEEN; ONTARIO PUBLIC SERVICE EMPLOYEES UNION (ANDERSON et al) -and- THE CROWN IN RIGHT OF ONTARIO (Ministry of Natural Resources) Employer MEMORANDUM OF A(;iREEMENT The ~ndersigne¢t re. pr$~~ Of t~m parUes agree to the settlement of the gritvom' grie~anoes (GSB #291-29,3/8~) on me following ~mrms; I. l'ha emptoyer, foik3vang1~s signing of the Memc~randum of Agreement by i=artie~, will pay to the gri~ors We fallowing sum.~ of money less declu~ons required by law'. Mr, William Mlllmy:. ~,2~.B1 Mm'. Charlmm An¢l~: Mr. D ennim Mcl.noct: $8,887.70 2 .~"h~ ~n;v~m wili t~ovids to ~e em~er ~=n st~eme~.~m ~e ~~ ~p~mem and Immt~on Commi~l~n p~ing ~ of ~1 p~e~ m~ to them un~r the U~em~em lns~r~ A~ during ~e p~o~ of ~-~ ~ing ~ 3, . Upon the signing of. t~is Memoran~lum of Agreement by ali grievance shall be deemeet to have t~een wi~~.. S. NO further legal proceedings, a~ions, claims or complai~-~;.~ under statute or ottlerwise si'mil be tn~em~W ~ the grievom or by,1~e Union in any way arising out of the drou~tances which Je~l te ~e present !~ievanoea or relating to l~e grievers' employment ~atua with l~e employer at any time in the past. 6. The 'pan ice agree th, at ~e Memoranclum at Agreement co~ the complete eu..:l ~al agreement between mem, ThL~ Memorandum (3f Agreement i~ matte witheut prejucti~,e o~ precedent 8, F..~ther pm,[y may.nave tt"tis Mem~ra"~cium of Agreement mac~e ~n Order of'-,he Boar~. Mr. Charles Mr. O~nrfl~ M~.eo~l MINISTRY OF P4~ TURA~ RE~OURCE~ CAL COlA r/ON: .... ~ ' ~ed~ ot 5e~lce u~m~et o[ .......... , ~:'~.~..'. ~ ~ ?' .: :~.::. , l l' ill ,' ~_.i ~.';~r . .~ .. ~' · ,..'. ," 'J .:..~ . ONTARIO EM,°LO¥~$OELA COURONNE · ' ~.. .~'.. " ".-: C~OWNEMPt..OYEES DEL'ONTARIO ~'~ '~" '" ' GRIEVANCE C,OMMISSION DE S~FFLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS, STREET WE,~T, ,TORONTO, ONTARIO. MSG 1ZS-SUITE 2100 TELEPHONE/T~L.~PHONE 180. RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5O IZ8 - BUREAU 2100 (416) 598,0688 314/89 IN THE MATTER OF AR ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE B~RGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN= OPSEU (Branch) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: M.R. Gorsky Vice-Chairperson M. Vorster Member H.-Roberts Member FOR THE P. Chapman GRIEVOR: Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors FOR THE S. Currie EMPLOYER: Staff Relations Officer Management Board of Cabinet P. Codner *' Staff Relations Advisor Ministry of Transportation HEARINGS:. September 13, 1989 November 27, 1989 · . DECiSiON The grievor, Ian Branch, filed a grievance on April 12, 1989, as follows: " That I was unsuccessful in competition no. 9-89-06 for position of Patrol Operator-AB at Calabogie Pa%rol, and requested that he: "...be awarded the position or that the competition be re- run. ~ It was acknowledged that the grievor, at the time ~cf the posting of the position referred, to in the grievance, had k~en appointed. as a seasonal employee as defined in Art. 3.17 of the collective agreement ~ The job in questipn was posted pursuant to Art. 4 of ~he collective agreement. The position of the employer was that tke grievor, as a seasonal and unclassified employee; could not rely on the provisions contained in Article 4, which deals witk "Posting and Filling of Vacancies Or'New Positions". Counsel for the employer referred to certain sections of The Public Services Act and Regulation 881 thereunder: "1. (a) "civil servant" means a person appointed to the service of the Crown by the Lieutenan= 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; (g) "public 'servsnt" means a person appointed under this Act to the service of the Crown by the Lieutenant Governor in Oouncil, by the Commission or by a minister, and "public service" h~s a corresponding meaning; (i) "unclassified service" means the part of the public service that is composed of positions to which persons are appointed by & minister under =his Act. 6.-(1) When a vacano7 exists in ~he 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 vacancy. (2) The Gommission. shall appoint a person nominated under subsection (1) to a position on the probationary staff of the classified service for not more than one year' at a' tim~. 7. The Gomm~ssion shall, if requested in writin~ by the deputy mimiste=~ recommend to the Lieutenamt Governor in Council the appointment of a person on the probatiouary staff of the classified service to the 'regular- staff of the classified service., and the · =eoomme~datioD shall be. accompanied by the certificate of ~ualific~tion ~d assignment of the Commission. 8.-(~) A minister or any public servant who is designated i~ writin~ for the purpose by him may appoint rom a period of not more than One yeam on the first appointmen~ and for any period on any subsequent appoi~td~ent a person to a position in the unclassified service in anF M~nistry over which he presides. (~) Any appointment made by a designee under subsection (I) shall be deemed to have been made by his miflistem. ~. A person who is appointed to a position in the "public service fora a specified period ceases to be a public servant at the expiration of ~hat period./* The important sections of Re~u~a~ion 881 a~e as follows: "UNCLASSIFIED SERVICE 6.~(I) The unclassified service consists of employees who are employed under individual contracts in which the terms of employment are set out ~nd is divided into, Ia) Group 1, consis~in~ of employees who ~e employed,. (i) on a project of a non-recurring ki~d, (ii) in a professional or other special capaci (iii) on a temporary work a$signment arranged by the co~issio~ in accordance with i~s pmo~ram for providin~ ~empomarZ help, (iv) for'fewer tha~ fourteen hours per week or f~wer th~n nine full daZs in four consecutive weeks om ca an irregular or =~Ii basis, (V) du~in~ thei= me~ular suhool, college univ6~ity vacation period or under a opema~ve edu~a~ionai ~rainin~ proart; (b) Group 2, consistin~ of employees who nme employed on a pmoJect-Of a mecurri~ kind, (i) fo= lewes th~ twelve consecutiYe months and for lewes th~,. [A) ~B-I/4 bourns pe~ week wheme ~s~tioa, if filled bz a civil servant, would be ~l~sified as a position ~uiriu~ $6-I/4 hours of work per week, (B) 40 hours pe~ week where the ~sitio~ if fill.ed by a civil would be ol~sified as a position requirin~ 40 hours of work per week, (ii) fo~'fewe~ than eight consecutive "weeks per ~ear where the ~ontr~c~ of t~e ~movides ~hat ~e emplozee is ~o work either 36-1/4 hours per week om 40 houms ~ week; (~) G~oup 3 consistin~ of employees ap~i~ted seconal basis for a period of at least eight consecutive weeks but less than twelve consecu:ive moaths to an annuallF mecur~ing position where the con~ract provides the: the employee is ~o work either 36-1/4 hours, per week Or 40 houps per ~'eek, Section 6 of the Act deals ~ith appointments to the classified service. A vacancy must exist in the classified service for the posting' provisions of Article 4 of the collective agreement to apply. When the successful candidate is named after a competition is carried out pursuant to Article 4, the deputy minister is required to nominate the successful candidate pursuant to section 6 of the Act. Section 6(2).of the Act then req~/ires the Co~mission to appoint the successful candidate as a probationary employee in the classified service. Section 7 of the Ac~ provides tkat after completion of the probationary period, the Comnission, when requested, recommends appointment of a-probationary member of the classified service to the' regular staff of the classified Service. Section 8 of the Act 4eals with appointments to the unclassified service. Section 8 makes no mention of the need for there, to be a vacancy in order for there to be an appointment to the unclassified service,' and appointments to the unclassified service are for fixed time periods. Counsel.for the em9loyer argued that Arts. 3.15 and 3.35 of the collective agreement dealt.with "Other Applicable Articles" which apply to seasonal employees, such as the grievor, and noted that Art. 4 is not mentioned as being applicable to seasonal employees in the unclassified serVice. Counsel for the employer referred to Sec. 18(1)(a) of the gro~n Employees Coliect%ve Bargaining Act, R.S.o.L, 1980, cap. 108 as amended ("CECBA"): "18(1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal,suspensicn, work methods and procedures, kinds and locations of equipment and classification of position." in support of his position' that this Board lacked jurisdiction to directly or indirectly appoint the grievor to the classified service. Counsel for the employer referred to Exhibit 2 which is a series of the grievo~'s temporary appointments commencing in December, 1986. These appointments are as follows: (a) From December 13, 1986 to March 6, 1987, as a Snow Plow Helper in the Eastern Region, District 9, Ottawa, Assigned to Patrol 23, Calabogie (b) From March 7, 1987 to March 13, 1987, same class title, same region, same headquarters. From June 22, 1987 to October 22~ 1987, as a Heavy Equipment Operator l, same region, district and headquarters. (d) From October 23, 1987 to December ll, 1987, same class title, region, district and headquarters as in (c). (e) From December 12, 1987 to March ll, 1988 as a Heavy Eql~ipment Operator 2, same region, district and headquarters. (f) From April 5, 1988 to April 29, 1988 as a Heavy Equipment Operator 1, same region, district and headquarters. ' (g) From May 30, ..1988 to June 30, 1988 as a Heavy Equipment Operator 1, same region, district and headquarters. (h) From October 11, 1988 to October 25, 1988 as a Heavy Equipment Operator. 2, same region, district and headquarters. (i) From october 31, 1988 to March 31, 1989, as in (h). All of the above appointments were for 40 hour work weeks. The definition of "seasonal employee" is found in Art:. 3.17 of ~he collective agreement. "A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to an annually recurring full-time position in the unclassified service in a ministry. For purposes of this definition full-~ime means a minimum of thirty-six and one-quarter (36-1/4) or forty (40) hours ~er week,.as applicable." The definition of "probationary period for a seasonal employee" is found in Art. 3.18 of the collective agreement. "The probationary period for a seasonal employee shall be two (2) full periods of seasonal employment of at least eight (8) consecutive weeks each, worked in consecutive years in ~he same position in the same ministry." Counsel for the employer submitted that the grievor was an employee appointed for a period covered by Art. 3.17: 1. December 13, 1986 to March 13, 1987 2. December 12, 1987 to March i!, 1988 3. October 31, 1988 to March 31, 1989. These,appointments were said to be to the position title: snow Plow Operator AB, calabogie, and reference was made to the position specification (Exhibit 3) where the purpose, duties,)related tasks and skills and knowledge with respect to the position are.set out. The position as a snow plow operator was said to be annually recurring and for the number of weekly hours as to come within the definition, found in Art. 3.17. The grievor was also said to have completed the probationary period provided for in Art. 3.18. Counsel for the employer relied on Wagner, 351/89 and 352/89 (Slone), where the grievor was a member of the unclassified service, on a series of fixed-term contracts. The grievor, there,filed two grievances, the second of which stated that the employer had failed, "to properly consider her qualifications, ability and years of experience in connection with her application for a permanent position .... " (Waqner, at p.2) Counsel for the grievor in the Wagne~ case "conceded that 'the second grievance [could] only proceed if the grievor [was] found to have a status that is superior to that of an unclassified employee~ since such an employee would not normally be entitled to take advantage of the provisions of the collective agreement dealing with postings', namely Article 4 (full-time), or Article 60 (part-time)~ (Waqner at p.2). Counsel for the employer referred to Blake 1276/87, in which the Chairperson of the Board held that One panel of the Board should follow the decision of another panel except in exceptional circumstances, it was left to panels of the Board to flesh out the circumstances when the Blake rule would not apply. One of the exceptional circ~unstances was identified in Tsiotsikas 907/88, being where there was conflict between two decisions of the'Board. The Tsiotsikas case was referred to with approval in the Bres~ette 1682/87 (Wilson) at p. 21. We were not presented with a situation as was referred to in Tsiotsikas. From the position taken by counsel for the union, it was apparent that she was not urging Upon us the proposition that the grievor, if properly appointed to the unclassified' service, had the right to grieve an alleged violation of Articl~ 4. The position of the union was that: ' (1) The grievor had been improperly appointed to the unclassified service, and that we should so find. Counsel for the union acknowledged that evidence would have to be tendered 'to establish this position. (2) The Board could fashion a remedy for the grievor even if he was not a member of the classified service at the time of the posting, provided it could be established that he had been improperly appointed to the unclassified service. Counsel for the union asked that we first rule on the arFament with respect to (2), above, and hear full argument with respect, to (1), above, only after we had issued an interim award with respect to (2). As noted above,, the position of the employer was that a finding that the grievor had been properly appointed to the unclassified service would require an immediate holding that the grievance was not arbitrable. We note that'counsel for the union did not argue that an employee properly appointed to the unclassified service had the right to grieve an alleged violation of Article 4. In response to' the argument presented by counsel for the employer: that an unclassified public servant had no rights under Article 4 of the collective agreement, counsel for the union argued that if the grievor Was improperly appointed as part of the unclassified service, there was a remedy available to him Which did not amount to the direct enforcement of Article 4 rights. It was submitted that the position advocated on behalf of the employer represented an incorrect interpretation of WaGner. It is evident that counsel for the union recognized the immediate difficulty which she faced in pursuing an argument based on an allegation that the grievor was .improperly appointed to' the unclassified service. She referred to the statements, found at pages 14 - 15 of the Wagner case: "The jurisprudence makes it quite clear 'that our finding of an improper appointment does not necessarily imply any tangible success for the Grievor. ' Beresford stopped dead at this point of the analysis, and sent the case back to the parties ostensibly to attempt to. settle the question of remedy but in reality t0 send it on an excursion through the Divisional. Court and the Court of Appeal. 'Both courts declined to interfere with what the BOard had decided. Now, the remedy question must be faced. Referring back to the award in Beresford, this is what the Board said at pp. I6-1?: "As the par~es recognized at the hearing, however, that finding [of an improper appointment] does not necessarily provide an answer for the grievor on the question of reined?. To begin w~th, as the Union acknowledges, had the position been properly treated ~s one in the "classified" service, as ~he Union has contended, the position would l~ave had to have been posted. And there have, as · noted in the evidence, been further developments with-the position since the grievor's tenure there endech In a3/ of the circums~ce% therefore, it was agreed By the l~arties that the question of remedF be left at this stage to be a~dressed bY the parties, with the Board remaining seized in the event that the mater cannot be resolved between thenu The Board s~nply f~mds and declares, therefore, that the purported limited-term appointment of the grievor to the 'unclassified# se~ was, on the basis of the evidence and the partic-i-~ facts before us, improper and unauthe.-~zed by the provisions of the PuBlic Service Act and the regulations thereunder." No case to our knowledge has gone any further than this. In the subsequent case of MilleF 1972/87, which was also Challenged in the courts alongside Beresford, Vice-Chairperson Mitchnick commented on his award in Beresfcrd in the fo[lowing terms, at' page 7 of the award:' "Once again, wha[ the Board had before it in Beresford was a. "dismissal" grievance, but the Board /ook the view that, a.~ the "clarence" of the employer was that the grievor's employment had simply come to an 'end a~ a result of a predete~min~ timi~on on its ~rm, the B~rd w~ prepaid ~ addre~ the Union'~ argument , ~ W whether ~at p~de~rmined limi~tion had b~n ~wfully im~sed. In agreeing ~ direr its mind ~ ~at question~ however, the Board expressly ~utioned (at the botts of ~e 13) ~ it was doing so "~o~ wha~ver ik may ultima~ly mean ~ the grievot ~ terms of re~ef". -Wha~ it did in fact me~, a~ ~e government , in its submissions before u~ no~s in the p~sent ~e, was not, and h~ not been decided in Be~esford. Aa ~e ~: page of the decision se~ out, the Union i~elf foresaw p~blema ~th the form of remedy t~t would be apg~pr~, o~ng ~ p~~r ~ the f~t that ap~tmen~ ~ the "clasa~ied set.ce" ~ only be made t~ough ~e valle of a ~atin~ (a~ ~cle 4 of the coll~tive agr~ment). But in answer ~ ano~er query put ~ us by the government in ~' present ~e, ff ~e ulti~ result of an ~p~per apartment ~ the ~c~sified set.ce we~ found ~ . be t~t ~e en~u~g ~d of employment must tke~fore be trea~d ~ emplo~ent ~ the' "c~sMied ser~ae" (~d ag~m, no ~e, ~clu~ng ~e p~sent, ~ ~hed the ~ of d~id~g that yet), .such emp~ent would be subj~t ~ the ~r~ ~rms ~d ~ndi~ons at~g ~ employment ~ ~e "c~i~d sauce", includ~g, in par~c~, ~e ~ng of a p~batio~ ~od."' The same cautionary note was sounded in Bressette, at p.22: "Hawing found ~_b-~ the grievors' were not properly appointed to the unclassified service, this Board now turns to the question of whether the grievors are ent/tled to rely on sect/on 4.1 of the collective agreelnent~ In Beresfo~d by agreement of the .part/es, - once the Board had determined that the grievor was improperly appointed to the unclassified service the Board rem/fred the matter to the parties to attempt to fashion a remedy while the Board ~emained seised in the event the matter could not be re~olved between them. To th/_~ date, presumably because of several applicat/ons for judicis/ review, that issue rems/ns out. tending." The award in Bres_sette merely sent the i~sue back to the parties, without deciding what if any ~emedy this Board could or, should award. Therefore, we ave left to decide %his aspect Of' the grievance on first principles." In fashioning its remedy, the Board in the wagner case~ (at page 23), did not do .so by granting classified status to the grievor, although it did declare that the job the grievor performed ought to have been filled by a posting and an appointment to the classified serVice. Counsel for the union requested that we first decide the issue of whether the grievor, if he is entitled to a declaration that he was improperly appointed to the unclassified service , was entitle'd to a remedy consistent with that awarded in Wagner. As noted, she only pursued the question of the appropriateness of the remedy on the assumption that she is later able to establish the grievor's entitlement to a declaration that he was not properly appointed to the unclassified serVice. The.reason for the way in which counsel for the union choSe to pursue her submissions appears to follow from the present s~ate of the Board's jurisprudence. In Beresford 1429/86 (Mitchnick), after hoiding (at page 16) "that the purported appointment of the grievo~ to the 'unclassified' as opposed to the 'classified' serVice was improper", the Board went on, at pages 16 to 17, to observe: "As the parties recognized at the hearing, however, that finding doesnot necessarily provide an answer forthe grievor on the question of remedy. To begin with, as the Union acknowledges, had the position been 'properly treated as one in the "classified" service, as the Union has contended, the position would have had to have been posted. And there have, as noted in the evidence, been further developments with the position since the grievor's tenure there ended. In all of the circumstances, therefore, it was.agreed by the parties that the question of remedy be left at this stage to be addressed by the parties, with the Board remaining seized in the event that the matter cannot be resolved between them. The Board simply finds and declares, therefore, that the purported .limited-term appointment of the grievor to the "unclassified" service was, on the basis of the evidence and the particular facts before us, improper and unauthorized by the provisions of the Public Service Act, and the regulations thereunder." This difficulty in going beyond such a declaration was discussed in Bressette 1682/87 (Wilson). There, the grievances were similar to the one before us. At the time of the grievances in Bresset~e, "... the grievors...were employed in the unclassifie~ public service pursuant to contracts .... The grievors applie~ in the posting [for 23 vacancies in the classified service for attendants~ at the Oakridge Unit of the Mental Health Centre at Penetanguishene] and were Unsuc:essful." .(Bressette at p.1) As in the case before us, the employer in Bressette contended, "that since [the grievors] were unclassified staff, they could not rely on Article 4.1 (job posting) of ~he collective agreement.)(at The Board, at page 22, followed Beresford as being "manifestly correct." (emphasis in the original). In turning to the question of remedy, after having found that the grievors had been improperly appointed to the unclassified s~rvice, the Board stated, further at page 22: "This Board now turns to tke question of whether the grievors are entitled to rely on section 4.1 of the collective agreement. In Beresford by agreement of the parties, once the Board had determined that%he grievor was improperly appointed to the unclassified service the Board remitted.the matter to the parties to attempt to fashion a remedy while the Board remained seized in the event the matter could not be resolved between them. To this date,presumably because of several applications for judicia~ review, that issue still remains outstanding. In my view, ~he Beresford approach is the proper one at this stage. The issue 'are complex and novel: the parties are the people wk~ will be affected by the result. They should try to fashion their ow~. solution before this Board intervenes. Accordingly, the master is remitted to the parties to-fashion an appropriate solution, failing which this Board remains seized of the grievances." At this time,~counsel for the union wished to address the Board's jurisdiction to fashion a different remedy than is found in Bressette, based on the award in Wagner, on the ass{Unption that we will find, on the evidence, that the grievor was improperly appointed to the unclassified service, as vas the case in Wagner. in Wagner, there was no competition, but tke second grievance (at' page 2) complained "that the employer failed properly to consider [the grievor's] qualifications, ability and years of experience in c~nnection with the application for a per~anent position." This grievance was not proceeded with at the hearing which led.to the award. In Wagner, 'the Board concluded (at page 12), that the job in question ought not to have been filled by an appointment to the unclassified service and (at page 13): "... following the reasoning in-~eresford..." concluded "'that the job in which the grievor was employed was a job that ought to have been filled by an appointment under sections 6 and 7 of the Pub%ic Service Act.'" Further, at page 13, the Board stated that: "At some point in time, it came under an obligation to post the position under the provisions cf either Article 4 or Article 60 of the Collective Agreement. Having failed to do so, then, we are in the position of assessing the cOnsequ'ences that flow from that failure, and what if any benefits accrue to the Grievor." In'the Waaner case, the Board, in dealing with the subject of the appropriate r~medy, was'only concerned with the first grievance before it, being the grievor's "dismissal'' (see Wag~er at page 2). We are not faced with such a grievance. Neuer%hele~s, counsel for the union argued that the principles applied by the Board in fashi°ning a remedy are relevant in a case such as this. As already noted, the Board did not deal with the second grievance. What the Board was dealing with was, in effect,'a request to order that the grievor be granted classified status. Counsel for the union did not argue that there wa~ no difference between the grievance which was adjudicated in WagNer and the one before us. Rather, she submitted that the rationale for the relief afforded in Wagner. was capable of being applied in the case before us. Because the strands of reasoning in Wagner (pages 16 - 23) on the subject are so intertwined, it is necessary to quote it in its ,entirety: 'LThere are two basi.c principles which we recognize as important to observe in this case. Those principles are: I. The jurisdiction to apply' a remedy should be directed to compensating a grievor for his ac%ual loss or detriment suffered as a result of unlawful managemen: acti:n. While that loss may be difficult to quantify, the Board has broad powers and must fashion the best remedy it can find. However, it is not appropriate in dispensing remedies to cznfer a windfall on a grievor, by compensating someone who has not suffered any actual loss or detriment. 2. In fashioning a remedy, this ~oard should not. order one side or the other to b~eac~ the Collec:ive Agreement or contrar~ to a statute or regulation. This may be viewed as a variation on the theme that two wrongs do not make a right. Dealing with the firs~ point fir$~, we must remember that the ~ievo~'s oomplaint essentiall~ arises out of a contract, whether out of her individual limited-term contracts or out of the Collective Agreement. ~bsent some contract, the Employer owes Her no ~utie~. In a sense, all grievances are complaints that the Employer has breached the c'ontract, either in relation to' some express term or to some implie~ obligation that has become recognized in the iabour relations context. In fashioning a remedy, boards of arbitration are a%temptinq-to give the grievor thc full benefit of his bargain, or to "m,kc him whole". Another way of e~pr~ssing it is to put the grievo~ into the position he would have been in had the Employer 'ac~ed lawfully. But if a gr~evor has not suffered as a result of a breach by the Employer, there is no need to award compensation. Where the grievor only establishes that he might be harmed in the future, it may be appropriate to order the Employer to cease the offending conduct and put matters ~ight. in some fashion. That is the intent of a declaration, which assumes that wh&t is deoia~ed will henceforth be done. But a grievor is not entitled merely to ' point out a breach of the Collective Agreement by the Employer and then seek to reap some reward.. There must on the balance of probabilities have been a det=iment to the ~rievor suffered as a di=ect consequence of the breach. It i~ that detriment that this Boa=d will be willing to remedF, It is p=eoisely the lack of an~ obvious detriment that st=ikes us in this c&se, and ~ay well characterize most if not- all of these types of griev&nces. It is difficult to see how the Orievom has lost anything as a result of management's unlawful action. If anything, she may have benefitted by it. Cgnsider the possibilities: had the Employer decided to post the ~ob at the outset, such posting might have been internal only and the Grievor would have had no right to apply. Had the posting permitted outside applications, the Grievor might have faced competiuion ,from inside candida%es ~ho by virtue of their seniority wo~n~d have had ~ si~ni£ic~n' advanta%:e in the co~pet, iti-cn. It i~ noteworthy that th,~ jo[) in question classified at the OAG 11 level, which means that it is fairly senior and might well have been an attractive proposition for in%=rnml candidates. Assuming that the Employer had' decided to pos~ the position onl~ after one or more of the Grievor's contracts had expired, there is still no assurance that she would have been the successful candidate. She would not have had any seniority to help her, since her time under contract would not haYe been considered "length of continuous servi~e'''~ within the meaning of Article 25 of the Collective Agreement. As we thaz Article, only if she had succeeded in obtaining the job would she have-been permitte4 to tack on her time under'con%tact to her seniority.' Ail that she has arguably lost, therefore, i's a ~ossible opportunity which on the facts of this case is of a highly s~eculative value. Probably,'the Grievor would be no be~ter off had the Employer treated the position ~s it ought to have,.namely as a part-time classified position. Havin~ had the benefit of the contract for some two years, the Grievor ma? indeed be a beneficiary of the Employer's failure to satisfy the requirements of the Public Service Act, the Regulation and the .Cc!lective Agreement. It is interesting also to analyze the situation from ~ purely iefal point of view. The essential complaint of the Grievor is that the Employer did not have the legal authority tO' enter into the contract with her. In such a case, the contract may be refarded as an "illegal contPact" Fundamental princ~ple~ cf contract law hold that where a cont.ract is illegal, where bot~'. i, ttrtics arc equally to blame for the illeg~t[tty ( in tht~ that they both had equ~l knowledge of the illegality ~tnd cot, trol over it), then as a rule neither par'ty will be entitled to it%yoke the aid of a court (or a board of arbitration) if that party bec:mes dissatisfied with the course of events transpiming thereunder. The rationale is that no one should be able to take advent&ge of his own wrongdoing. In the situation as here where the~e is a disparity in bar~ainin~ power and the stronger party (the Employer) is solely responsible for the illegality, then the innocent party has an option: he may either ask that the contract be enforced, or that it be rescinded: see Sidmay Ltd. et al. v. Wehttam Investments Ltd. (1967) 61 D.L.R, (~d) 358 (On~. C. A.), in particular at p.$$5-6. What that case and otkers have held is that the innocent party cannot seek to enforce only that part of the c~ntract that he likes, while asking tha~ o~he~ parts of i~ be ignored o~ thrown out. That is in effect what the Grievor is asking us to do.. She wishes to keep in force that part of the contract ~hat gives her the status of an employee, but wishes to have ignomed those par~s of the contract that impose an inferior Status and a time limitation. ('In fact, she even'goes one step furthe~ and asks us' to rewrite the contract to transform it into something quite unlike what it is on its face.) Enfo=cin~ the contract mea~s enfo~cin~ it i~ all respects. Rescind~n~ the contract.means attempting to put both parties back inUo thei~ respe=tive positions before the contract was entered into. Neither option could result in the Orievo~ obtainin~ thc she seeks in this' ~-iev~t~cc, n~m.--'l_v to bo ~. classified employee. If we approach the exercise here as enforcement, no greater status can be founded on the contract that she entered into. The 3urisprudenCe of this Board which was recited in Beresfo~d and which is still applicable, established the p~inciple ~hat status derives fTom the me%hod of appointment and no~ from the nature of the 3ob.. In Simpscn GSB 694/85, at p.i~, the ~oard stated: "The Pubic Ser~.¢e Ac~ crea~es the dis:tnc~ion between the classified and unclassified set,doe, and it c~ea~s ~hat distinction not on ~he b~is of the par~cular jobs ~ be performed but r~ther on the b~im upon which 'the employment s~tus of a particular employee is crea:ed." However, if-we approach our task as an exercise in. rescission, then no status at all is achieved and the only issue is how to put the Grievor precisel~ or approxima%el~ back into the position she ~ould have been in h~d the illegal contract .- never been entered into. This brings into play the second fundamental principle which we alluded to earlier, tha~ we' should not order a party to b~each the Collective Agreement,~ a statute or a regulation. This Board by itself has no 3urisdiction to confer status. That is an exclusive nanaEe~en% function, We can onl~ order the Employer to make an appointment, e~{her retros~e.ctiv__ely or prospectively, which would nonfer some status. Bu~ if we were to order the EmDloyer to appoint t~:e Gvievo~ to a classified position, we wou'd i~ effect bo ordering l~ to ~..akc thc app,,'~ntm(;,~t without posting or competition, in defiance of Article 60, the relevant portions of whic'h are: ARTICLE 60 ~ Posting and Filling of .Regular Para-time Posi 60.1 Effective March 16] I98~, when a vacancy occurs in the Classified Service for a re&ular part-tine position in the bar~ainin~ unit or a new refular part- time classified position is created in the bargaining unit, it shall be advertfsed for at least ten (i0) calendar days prior to the established closin~ date when adverti~ed'withi~ a Ministry, o~ ~S shall be advertised for at least fiftee~ (15) caten'dar days priom to the established closin& date whez advertised service-wide, Ail applicatiohs will be acknowledged. Where practicable, no:ice of vacancies shell be posted on bulletin boards. 60.2 In fillin~ a vacancy, the Employer shall give primary consideration to qualifications and ability to pe=form the Ne~u~med duties. Where qualifications and ab~Iit~ are relativelz e~uai, ien~th· of continuous se=vice shall be a consideration. The remedial approach of this Board should be to order a part~ to do somethin~ that it ought to have done and is permitted to do. That is consistent with the decision of the Divisional Cour% in Re OPBEU (Be=r~) and the Crow% in Ri~t of Ontario (unreported), Feb. 17, I~S~. The Ho~ourable Mr. Justice Reid at pa~e 14-$ of the decision commented thusly on this Board's ~urisdiction: "The object of arbitration boards, both in the public and private sector, is the resolution of differences. That is the mandate of this Board. It ha~ beer. stated in unequivocal terms by this court... The Board's 'obligation under~ s. 19(1) is to "decide the When looked at Without ".he confinement ~aposed by Article 5.1.2 "the matter" grieved w:_s wrong classification, ~f the }!o.ard c~ncluded that the cla~-:';~" ' ~ ....a.lon was wrong, i~s ::'.:~ndat,: was As noted, that case dealt with classification, and the upshot is that the Board now rgutine' ° ~ orders the Employer to create sew classifications which more co~rec~i¥ de~ribe the job being done by an employee or group of employees, in so ordering, we merely require the Employer to~do something tha~ is wi%him exclusive sphere of a~tivity. It need not breach any law or the Collective Agreement; to the contrary, it mu~% obe? the law. But it would .be completely different were we' '..o order that the Employer grant classified status :o the ']rievor in this case. We would be ordering the Employer to compound its own error, permit the Grievor to "jump the queue" over everyone else in the '5~rgaining unit for whose benefit Artiole 60 ~of the Gollective Agreeme'nt exists, We cannot an~ would not order the Employer to overlook ~hose rights. The mos~ that we cas do is oblige the Employer to obey the Collective' Agreement and, shoul~ it decide to fill the position in the future, to post it in accordance with either Article §0 or Article 4. To compensate the Grievor for her lost opportunity, ~such as it may have been, we can safely add a requirement thatr the cgmpetition be open at least ~o the extent that the Grievor ~hall be invited to appl~ and her application, if any, shall be considered in ·good faith by the Employer. Should she choose to apply, she will be able to D:int to her' exDe~ience on the 3ob as significant evidence th-a' she has the abi=ity and qualifications to perfo-~.- the require/ duties. Should she b~ successful in such competition, she will 'have achieved something of a tangible nature in this grievance. Should she fail to win the position, then at least the Emplcyer will have done what it ought to have done and the Grievor will have been given the opportunity that she might hae enjoyed at an earlier date." The basis for the form of relief afforded in Waqne~ was a desire to find a reasonable foundation consistent with tke collective agreement and the applicable statutory provision for going beyond a mere declaration tha~ the grievor had been wrongly appointed to the unclassified service. .The nature of the relief was acknowledged to depend on the peculiar facts of a case (WaGner at page 25) and could not have been awarded unless there had been a prior finding that the grievor had been improperlyappointed to the unclassified service. Indeed, the first thirteen pages of the award are devoted to this issue and the development of a remedy only followed such a finding' (wagner at page 13). In the case'before us, we are asked to make a declara:ion as to the nature of the relief which Will be afforded to the grievor before hearing argument from counsel for the union on whether the grievor had been improperly appointed to the unclassified service. This is justified on the basis that the request arises out of the preliminary objection raised by counsel for the employer: "that the grievance was not arbitrable because only employees in the classified service could grieve a violation of Article 4 of the collective agreement." Counsel for the union responded to this objection obliquely. She did not argue that .a grievor properly within the unclassified service could do so. If she had' endeavoured tO do so, she could not 'have succeeded on the clear language of the collective agreement. Rather, 'she~ relied on Wa~ner, and the basis' for awarding relief in that case, for her argument in support of our having jurisdiction to hear the case. In Wa~ner, jurisdiction was entertained only after a finding that the grievor had been improperly appointed to the unclassified service. In the case of an individual grievance, as is the case before us, it would be improper to make an award as to our jurisdiction to grant relief of a particular kind on the assumption that a pre- condition to our having jurisdiction will be satisfied. That is: if the grievor .was improperly appointed to the unclassified service, then a remedy superior to 'that awarded in Bressette can be fashioned along the lines of that awarded in Wa~ner. ~agner requires that we'consider thepossible form of relief should it be established that the grievor was improperly appointed to the unclassified service. In holding that the preliminary Objection fails, we are not to be seen to have decided that an employee who is or was in the unclassified service has the right to grieve an alleged violation of Article 4.1 either directly or indirectly. What we are saying is that an employee who has not been properly appointed to the unclassified service is not just entitled to declaration to that effect, as was the case in Beresford and Bressette. Bressette is quite similar to the case before us, in that it involved employees who claimed to have been improperly appointed to the unclassified service grieving an alleged violation of Article 4. In Doth Beresford and Bressette, consideration of further relief beyond a declaration was postponed pending an opportunity being afforded the parties to resolve the matter of remedy. Jurisdiction was retained to deal with-.the question of relief should the parties experience difficulty in settling the matter. (BereSford at page 16 and Bressette at page 22). Counsel for the employer also referred us to Daniels 1544/87 (Fraser), which was a case involving an employee appointed to the unclassified service who was not a seasonal employee. As in this case, the employer in Daniels raised a preliminary objection that the grievance, based on a violation of Article 4, was not arbitrable. The Board, at page 3, found that unclassified staff could not rely on a violation of Article 4. We would find no basis for denying the application of Daniel~, if,it was on all fours with the facts of this case.' In Daniels, there was no submission, or finding, that the grievor had been improperly appointed to the unclassified service. The same comment is made with respect to: (1) Campbell 1088/86 (Draper), where no clain was nade that the appointment to the unclassified service was improper. · (2) ~ 1527/85 (Delisle)¥ where no Such claim was made, and (3) Ahluwalia 752/83 (Springate), where no such claim was made'. It is evident from comments made by counsel, that should we declare the griever to have been improperly appointed to the unclassified service, a referral back to them, as occurred in Beresford and in Bressette, would merely delay the resolution of the dispute. We will, therefore, request · that the Registrar reconvene the hearing. Only after hearing such additional evidence· on 'the question of whether the griever was improperly appointed to the unclassified service, as well as argument on that issue, will we be in a position to decide the issue of the relief available to the griever, should there be a finding in his favour. If the griever succeeds, to the'extent that we declare that he was improperly appointed to the unclassified service, then we will have to rule on the argument already presented to us as to the nature of the additional relief, if any, which the griever will be entitled to. In su~u~ary: The objection to~ our Jurisdiction, that the griever, as an unclassified employee, has n° rights under Article 4, can not be decided until a preliminary issue is firs: decided: was the griever improperly appointed to the unclassified se~uice ? If he was not improperly appointed, then the objection will succeed. If he was improperly appointed, he will, at least, be entitled to a declaration to that effect as in Bressette, on facts sufficiently similar to those before us. Neither Be~esford or Bressette precluded other forms of relief. The Board in those cases did not yet have to deal with the question of further relief sought unless the parties failed to achieve a voluntary resOlution of this aspect of the case. DATED at Tcronto, Ontario this 28th day of February, 1990. M. Gorsky, Vice-Chairperson M. ¥0rster, Member /--- .. H. Roberts, Me~er