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HomeMy WebLinkAbout1989-0405.Greco-Tarantino.89-12-21~. '., '~. : ONTARIO EMPLOYES DE LA COURONNE ' CROWN EMPLOYEES DE L'ONTARIO : : GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDA$ STREET WEs'r, TORONTO, ONTARtQ MSG 1Z$- SUITE2100 TELEPHONE/T~:L~PHONE 180, RUE DUNOAS OUEST, TORONTO, (ONTARIO) MSG 1Z8- BUREAU2100 (416~ 598-0688 405/89 IN THE MATTER OF AN ARBITRATION Under " THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ..... Between= OPSEU (Greco-Tarantino) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: 3 J.W. Samuels Vice-Chairperson J. McManus Member D. Clark Member For the Grievor: H. Law Grievance Officer Ontario Public Service 'Employees Union For the Emmloyer: C. Slater Senior Counsel Human Resources Secretariat Management Board of cabinet HearinG: October 5, 1989 DECISION 2 I This is another case of the non-renewal of a limited-term contract between a Ministry and an employee who was improperly appointed to the unclassified service, as in Beresford, 1428/86, and Milley, 1972/87, and the many cases like them. The griever was employed from November i980 to September 1983, and then from November 1983 to November I987, pursuant to a series of short term contracts. Each contract was for no more than six months. The longest was for six months and the shortest was for approximately two weeks. The decision in Beresford was released one week after she left the Ministry's employment. At her exit interview, she was advised bY an official of the MiniStry that she could not grieve non- renewal of her contract. In December 1987, she went to the Employment Standards Branch, claiming a violation of the Employment Standards Act. This actionlwould ultimately result in an award of payment in~li~eu of _n.o_tice ..... of termination and an award of severance pay. In March 1989, an official of the Union contacted her conceming the possibility of filing a grievance for dismissal, in light of the Beresford decision. This led to the grievance before us. l We heard the evidence and argument in this case only one weel~ft-~' this same Vice-Chairman heard the argument concerning the "question of remedy" in Beresford and Milley. In the award concerning Beres.ford and MiIley, the panel concluded: It is critical at the outset to make it clear that we must take as our point of departure the earlier awards. Our decision concerning remedy is based on the status of the grievers as declared in the earlier awards. The earlier awards said simply that the grievers were' improperly appointed to the unclassified service. Therefore, they were not unclassified employees. Mr. Mitchnick very carefully worded his conclusions, and his point 3 was picked up by the Divisional Court. As the Court said, the Board "virtually stopped at that point". Counsel for the Union now argues that the grievors must be classified employees, because there are only two types of public servants contemplated in the' Public Service Act---classified and unclassified. In our view, this cannot be correct. As counsel for the Ministry argued, just as the grievors were not properly appointed to the unclassified service, it is clear that they were not " properly appointed to the classified service. Section 6 of the Public Service Act provides: .. 6.~(1) When a vacancy exists in the c!~_~sified se~ice, the ,~.,,~rarms o~ ~ ~deputy minister of the ministry in which the vacancy exists ~ shall aominate in writing from the Ii.st of elisibles of the Com- ~,:e mission a person to fill the vacancy. (2) The Comm~ion shall appoint the per~on nominated ~' under subsection (1) m a position on the probationary staff of ~,-ot,~_'_~_,_,y - ' · the classified service for not more than one ~ar at a time. ~m And Articles 4.1 to 4.3 of the collective agreement provide for posting of vacancies and a competition among applicants: 4.1 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified posi- tion is created in the bargaining unit, it shafl be advertised for at least ten (10) working days priOr to the established closing date when advertised within a minisfry~ or it shall be advertised for at least fifteen (1,5) working days prior to the established closing date when advertised service-wide. All applications wilt be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. 4.2 The notice of vacancy shall state, where applicable, t~e nature and title of position, salad, clualificat/ons required, the hours-of-work schedule as set out in 'Article 7 [Hours of Work), and the area in which the position exists. 4.3 In filling a vacancy, the Employer shall give primary consideration tO qualifications and ability to per- form the required duties. Where qualifications and ability are relatively eclual, length of continuous ser- vice shall be a consideration. These are the requirements for a proper appointment to the classified service and these 4 requirements were not met in the grievors' cases. So, just as they were not properly appointed to the unclassified service, they were not properly appointed to the classified service. Appointment to either service must be done according to the requirements established by the legislation and the collective agreement. Where does t_his leave us? We are dealing with the grievances of two people who were employees of the Ministry, but who were not properly appointed to either of the types of service contemplated in the legislation. Pursuant to section 19 of the Crown Employees Collective Bargaining Act, we must determine the "interpretation, application, administration" of the collective agreement with respect to these employees. And, as~the Ontario Divisional Court has said in Ontario Public Service Employees Union and Carol Berry et al v. The Crown in Right of Ontario (Ministry of Community and Social Services) (1986), 15 Ontario Appeal Cases 15, we must "decide the matter", and provide a remedy if there is need for one--speaking of this Board, the Court said "Its jurisdiction is unrestricted. Its mandate is remedial" (at page 20), ..... Thus, the next issue for us is whether the ~ grievors suffered any loss, whether their "rights" were violated, whether there was any breach of the employer's obligations towards them. There is no doubt that the grievors signed limited-term contracts. Beresford came to the Ministry as a telephone consul operator on a six- month contract in May 1985, which was renewed for 1i months, and then her contract was not renewed. Milley was employed from November 10, 1986 to September 30, 1987, pursuant to four successive limited-term contracts, and then was given no further .employment. Therefore, on first glance, it would appear that there was no violation of their rights. Both grievors were employed for the full periods they were promised in their contracts. They were not promised any further employment. They were never engaged on a basis which gave them job security. Thus, why should · they be entitled to any remedy? In our view, the answer lies in the structure of the collective agreement. The collective agreement covers both classified and unclassified employees. It did not contemplate employees who were improperly appointed, and therefore does not provide for them expressly. In the agreement, classified employees are provided with a wide range of rights'; whereas unclassified employees have only the limited fights provided in Article 3. ThiS bargain must have been reached 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 provided only limited fights for unclassified employees provided that only certain kinds of employees would be appointed tO the unclassified service. This understanding would have been based on Section 6 of Regulation 881 to the Public Service Act, which was repeated in the earlier award in Beresfor& with the emphasis shown here: 6.(1) The unclassified service consists of employees who are employed ~-~der individual contract8 in which the ts=ms of employment ~et out and is divided (ai Group I, consisting of employees who are employed, (i) on a project of a non-recurring kind, (ii) in a professional or other special (iii)'on a temporary work assignment-arranged by the commission in accordance wit.h its program for providing temporary help, (iv) for fewer than fourteen hours per week or fewer 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, (i) for_~ewer than 'twelve consecutive months and~for fewer than, (A) 36-1/4 hours per week where the position, if filled bya civil servant,.would be classified as a position requiring 36-1/4 hours of work per week, (B) 40 hours 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.; (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 months to an '~nnually recurrin'g position where the contract provides that the employee is to,work either 36-1/4 hours pe= week or 40 hou=s per week. Thus, the parties would have negotiated the relative fights of unclassified and classified 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 (Group 2), or on a seasonal basis (Group 3). Employees in the unclassified service would have fewer fights because they had "lesser" positions. During their period of employment, the grievors were working the same tlours, doing the same work, as members of the classified staff. The positions they were filling were not the type which were contemplated as unclassified when the .... parties to the collective-agreement struck their. ............ bargain, giving very limited fights to unclassified staff. Thus, there is some force in the Union's argument that the grievors should have been appointed to the classified service, and that, if the grievors are simply left where they are, we will ...... be determining'their'rights as if they were ............... ;-- members of the unclassified service. In 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 collective agreement. But they were neither classified nor unclassified employees, so their fights are not set out expressly in the agreement. Therefore, their rights must be inferred from the provisions of the collective agreement. The parties provided for limited fights for unclassified employees because it was contemplated that unclassified employees would be in positions which are in fact "lesser" than those of classified employees. If an employee is not properly in the unclassified service, then it can be inferred from the structure of the collective agreement that this employee ought to have a greater range of rights than an unclassified employee. However, in our view, we do not have the authority to turn the grievors into classified employees. "Appointment" is within the exclusive domain of the employer, pursuant to section 18(1) 6f the Crown Employees Collective Bargaining Act. And, in any event, it is clear, as we have said, that the grievors were not properly appointed as classified employees, and may never have achieved such an appointment if the positions they fried had been posted. If the positions had been posted, the grievors might have applied but might have_r lost iri the competition for the posifi6ns. -. - In our view, given that the grievors should not have been "appointed"_ to the unclassified service, they should not have been engaged on simple limited-term contracts, and therefore they should be compensated for the abrupt termination of their employment. A good reference for the · waY in which they should have .been dealt with is- found in the Employment Standards Act. Section 40 of the Act provides for notice of termination or a payment in lieu of notice, and section 40a provides for severance pay in certain circumstances where an employee has worked for an employer for five or more years. We order that the grievors should be considered to have been covered by sections 40 and 40a of the Employment, Standards Act, and they should be paid any amounts to which they are entitled upon the application of these provisions to their situations. The mounts so ordered shall be the whole of their compensation. No interest is payable on these sums. If the grievors have already received monies pursuant to this Act, then no further monies are due to them. If the grievors did receive monies by way of payments in lieu of notice of termination or severance pay, then these monies must be subtracted from any mounts which are found to be due to the grievors as a result of our order. Now, in Ms. Greco's case, she applied to the Employment Standards Branch for payment in lieu of notice of termination and for severance pay, and was aWarded.both. Thus, she has already received what we would have ordered, given the reasoning in Beresford and Milley. Therefore we award no further remedy for Ms. Greco. This really concludes our disposition of this case. But we must mention two preliminary objections raised by the 'Ministry at our hearing,__. and an argument made by the Union in response to the second objection. l~irsfly, it was argued that this Board could not award reinstatement to Ms. Greco because, having taken Payment in lieu of notice and severanfe pay, she had followed a course of actionL which led to flae termination of any employment relationship with the Ministry, and this course of action is inconsistent with an on-going reIationship which could, give rise to a right of reinstatement. Because we are not contemplating ·reinstatement anyways, it is unnecessary for us to deal with this objection. Secondly, it was argued that Ms. Greco was not a "public servant", as this term is def;med in section l(g) of the Public Service Act, bechuse she was never properly appointed to either the classified or unclassified service. Section l(g) reads: "public ~ervant" mea~ a. per,on appointed under ~ A~ to the ~ o~ ~e Cm~ by the Lieuten- ~t ~vemoi ~ ~. by ~e ~ion or by a ~er, =d "~b~c ~" ~ a ~nd~g ~nlng; 10 And then it is argued that, if she wasn't a "public servant" under this Act, she was not a member of the bargaining unit and i~ not covered by the collective agreement, because Article 1.1 of the collective agreement provides: In accordance with The Crown Employees Collec- tive Bargaining Act, the Ontario Public Service Emoloyees Union is recognized as the exclusive collective bargaining agent for all public servants other than persons who are not emOtoyees within the meaning of clause f of subsection 1 of Section 1 - of The Crown Ernl~oyees CoJ~ective Bargaining Act. The term "public servant" under the Crown Employees Collective Bargaini~g Act has the same meaning as in the Public Service Act (see section l(1)(m) of 'CECBA), and the Union is the bargaining agent only for "public servants". If the grievor is not a member of the bargaining unit, this Board has no jurisdiction over her grievance.--' In our view, while there is considerable attraction in the logic of this argument, the result suggested cannot be. The grievor was clearly engaged to work "under the Public Service Act" Ail of her contracts of hire say this. These contracts refer to .her as a ,public servant" ..... Everyone ..... considered her to be a "public servant". Pursuant to her last contract of employment, she .paid Union dues. As a result of the initial Beresford decision, we now say that she was not properly appointed to the unclassified service. And nor was she properly appointed to the classified service. But she was always considered to have been appointed under the Public Service Act and to have been a public servant. 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 11 Public Service Act, and was a "public servant". Therefore, we deny this second preliminary objection. Finally, we must deal with one of the Union's arguments in reply to the second preliminary objection. It was argued that, if the grievor is not properly appointed to the unclassified service, she must be a classified employee. It was suggested _.. that our case is similar to the situation in The Corporation of the City of Windsor and Canadian Union of Public Employees, Local 543 (Grievances of Haefling, Perpich, SearIes and Woolcock), an unreported decision by McLaren, dated December 6, 1985. In that case, the issue was whether the grievors were temporary employees or not. The~ collective agreement defined the term "temporary employee" in much the same way as section 6 of Regulation 881 of the Public Service Act. The Board decided that the employees Were not "temporary employees". The i~sue then became -- whether they were "regular employees", entitled to all the rights of such employees. The Board said (at page 22): It is argued-by--couse~'on behalf of the Corporation3 ' - ' that this Board nas no jurisdiction to make an employee permanen.t, or as the Collective Agreement provides in Artiole 4.~3 a regular elap£oy~e. This Board agrees that the Board has no jurisdiction to make an employee permanent who is temporary. However, the Board does nave jurisdiction to .interpret the Collective Agreement and determine whether the employer in its actions and conduct has applied the ColLective A~reemeat and satisfied this Board that an employee is a "temporary employee' and not a "regular employee'. Tni~ Boare has found that the actions of the employe~ and its conduct are a violation of the Collective~ Agreement. The only result of which can se that by its own conduct, and not Dy action of this Board, it has made these employees into 'regular elagloye~s' as provided for in A£~icle 4.*o3. In like fashion, it is argued that the Ministry has made Ms. Greco a classified employe, e. But there is a serious problem with this argument. The McLaren Board were dealing with the interpretation of a collective agreement. As they said in the middle of the passage just quoted--"the Board does' have jurisdiction to interpret the Collective Agreement". In effect, the' Board concluded that, as a matter of. interpretation of the collective agreement, the employees were "regular employees". On the other hand, we are dealing with a legislative scheme-for the appointment of employees. In order to be appointed to the classified service, an employee must be properly appointed pursuant to section 6 of the Public Service Act. We cannot override this provision. Ms. Greco was ~n_o_t_ s_o.appointed. Therefore, she is not a classified employee. · In sum, we conclude that the grievor is entitled to a remedy, but, as a result of her applications to the Employment Standards Branch, she has already received all that would be due to her. Done at London, Ontario, this ~s~., day of December , 1989. "I dissent" (Dissent attached) J. McManus, Member DISSENT 405/89 OPSEU (GRECO) MCSS I have read the reasons of the majority in this matter and I agree entirely that the grievor was a "public-servant". However, I must strongly and emphatically dissent from the majority's determination of the issue of remedy in this case of unjust dismissal. It is fundamental that the grievor's remedy in this matter must flow from the grievors' rights as determined under the collective agreement and the legislative scheme'of the public service. The panels chaired by Mr. Mitchnick in Beresford and Milley determined that the grievor~ had been improperly appointed to the unclassified staff of the public service. The issue that had been submitted to these panels in each case was unjust dismissal. In each matter the Board engaged in a determination of whether the grievor was properly appointed to the unclassified staff, as opposed to the classified civil service, in order to determine whether the Board has jurisdiction under Section 18(2) ofthe'Crown Employees Collective Bargaining Act to adjudicate unjust dismissal. That the 'above was inescapably the ratio in Beresford is illustrated at p. 16 of that'award: Accordingly, we must find on the evidence that we do have that the position to which the grievor was appointed was ...... not one which falls within anyof the_various situations encompass by the three Groups set out in the Regulations, and as contemplated by Section 8 of the Public Service Act, We find, therefore, that the purported appointment of the grievor to be "unclassified" as opposed to the "classified" service was improper. In the matter before this panel, it is clear that the grievor was improperly appointed to the unclassified staff. She devoted seven years of her life and career to an employer that was simply unwilling to exercise its powers of appointment under the Public Service Act properly. This had very real and substantive consequences for the grievor's compensation and job security which is painfully obvious from the nature of this grievance alleging unjust dismissal. Following the ratio in Beresford it is clear that the grievor cannot be categorized as an unclassified employee. Therefore her rights can only be determined as those belonging to a classified civil servant. Indeed it is indisputable that her job bears all the hallmarks of a permenant, classified Civil Servant with the - 2 - exception of a proper 'appointment under the Public Service Act. Accordingly, this panel must follow the reasoning .in Beresford which, is, that the Ministry may not hide behind its improper appointment of the grievor to the unclassified staff in order to oust the jurisdiction of this Board under, Section 18(2) of CECBA, and secondly, that the grievor's rights must be determined as if she were a classified civil servant. Having followed Beresford, this panel would then be in the position to exercise its broad and "untrammelled" jurisdiction under Section 19(1) of the Act to effect a proper remedy to this grievance. Unfortunately, the majority in this matter is not prepared to do so. It describes the grievor's employment status as "neither fish nor fowl". But clearly this is not the case. It is the employer which has unlawfully and 'artificially created this dilemma. As Vice-Chairperson Samuels indicated in his remedial award in Beresford, the collective agreement simply does not contemplate an improperly appointed unclassified employee. In light of this, I find it simply bewildering to find the majority in this matter allowing the employer's improper apDointment to remain undisturbed on the grounds that "there must be a middle ground which is implicit in the collective agreement". The majority is purporting to create a third category of public servant and this it cannot do. I would suggest that the appropriate award in this matter is not complicated. The Ministry violated the collective agreement. This panel has accepted that fact. However it refuses to go further and implement the appropriate remedy. The proper remedy is reinstatement as a classified civil servant. The Divisional Court in Berry has clearly empowered the Board under Section 19(1) of the Act to require the employer to rectify its violation of a Section 18(2) right by exercising its own management powers under Section 18(1) of the Act. Indeed the court so ordered this remedy in a similar "Fish or .Fowl" case involving improper classifications. Accordingly, it is wholly appropriate that this panel direct the Ministry to "appoint" the grievor to the classified civil service as part of reinstatement with full compensation and continuous service. Parenthetically, it seems to me that this panel need not concern itself with Section 18(1) of the Act as the appointment of the grievor to the classified civil service is technically a "reappointment" which is enumerated under Section 7 rather than Section 18(1) of the Crown Employees Collective Bargaining Act. Unfortunately, the majority has declined to follow this path. Instead, it has limited the grievor's remedial relief to her entitlement to severance pay under the Employment Standard~ Act. Of course, she is entitled to this relief independent of a grievance or the assistance of the Grievance Settlement Board - 3 - As the Divisional Court pronounced in Berry, where there is a right' there must be a remedy. The majority has failed utterly to exercise its remedial jurisdiction as contemplated by the collective agreement, the Act, and the Divisional Court's ruling in Berry. /john McManus, Member