HomeMy WebLinkAbout1989-0351.Wagner.89-10-27 " ':!!' ~ . ONTARIO EMP£OY~'$ DE LA COuRONiVE
~ ',~ CROWN EMPLOYEES DE L'~N TARJO
,:.:.-~.-i~.:,.., ~, GRIEVANCE CpMMISSION DE
SE~LEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS ~REE~ WE~ TORONTO, ONTAR)O, MSG 1Z8. SUITE 2~ TELEPHO~/TEL~PHQNE
180, RUE DUNDAS OUES~ TORONTO, fONTARIO) MSG 1Z8- BUR~U 21~ (At6j 5~-0~8
351/89, 352/89
IN TEE MATTER OF AN ARBITRATION
Under
T~{E CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRI~UANCE SETTLEMENT BOARD
Between:
OPSEU (Wagner)
Grievor
- and - · ...... - .
The Crown in Right 'of Ontario ....... ~
(Ministry of Citizenship)
Emp 1 oye r
Before:
.... E.K. Slone Vice-Chairperson
Mo Vorster Member
H. Roberts Member
For the Grievor: A. Ryder
Counsel
Ryder, Whitaker, Wright and Chapman
Barristers & Solicitors
For the Employer: S. Currie
Staff Relations Officer
Staff Relations Branch
Management Board of Cabinet
Hearing: September 19, 1989
The Griever 'in this case was a member of the unclassified
service~ on a series of fixed-term contracts commencing June 29~
1987 and ending on March 3t, 1989, In the days leading up to the
expiry of her last contract, she launched two grievances; the
first one grieves her "dismissal" {relying on the jurisprudence
of this Board in the case of Beresford I429/86 (Mitchnick) and
others), while the second grievance complains that the Employer
failed properly to consider her qualifications, ability and }tears
of experience in connection with her application'forb;a permanent
position. It is conceded that the second grievance can only
._ .proceed if the_Griever is found to have a status that is. superic£
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)._ Therefore,
dismissal grievance was proceeded with on this day.
The grieving of dismissals by unclassified employees has
become something of a growth industry since Beresford was
released in November 1987, having occupied many panels of this
Board as well as several levels of the Courts. Some of that
activity has been sparked by the apparently contradictory result
reached in the case of Hicks 2563/87 (Fraser), and the attempts
to reconcile the resulting two lines of authority. That aspect
of the problem need not concern us. Indeed it must be considered
a virtual non-issue, in light of the award of Vice-Chairperson
3
Wilson in Bressette 1682/8.7, wherein Beresford i-s followed (as
far as it goes) and Hick_s is expressly discredited. A full
accounting of those jurisprudential events Can be gleaned from
Bressette and to some extent the award of this Board in Blondi~
78/89 ($1one). In light of the urgency attaching to this case,
this award will be thin on historical background and attempt to
go right to the heart of the matter.
Prelimlnary Matters
Counsel for the EmPl~pyer had hoped that this ~oard would
agree to adjourn the case, to await the results of other cases
currently pending before-the~courts-and other panels Of this ~-
Board. Several of those Cases have already been-argued; others
are only pending to be argued. In either event we have no idea
when any of those decisions will 'be handed down. Nor can we be
sure that they will be determinative of any of the'issues we
face. In light of these facts and considering the observations
made by this same Vice-Chairperson.in Blond~n, no adjournment was
granted. CounseI therefore asked for two further things, namely:
1. Reasons for refusing the adjournment, and
2. An expedited award on the merits.
It was contended by the Employer that to refuse the
adjournment would simply lead to a multiplicity of proceedings.
.We do not agree. The EmploYer is in effect seeking to have
Deresford serve as a test case, over the objection~ of the
Grievor and presumably the Union. The c-ncept of a test case is
certainly a laudable One in appropriate 3ircumstances. But we
should no% be forcing one side or ~he other'to view matters that
way. Furthermore, the parties could haYe sought to consolidate a
number of cases that have a substantial common question of law,
but they did not choose to do'so. The~p is no meason that we can
think of to 3ustify treating Be;esford cr any of the cases under
reserve as a test c~se. The Vice-Chairperson who sat on the
preliminary decision in Beresford was n~ scheduled to be
presiding when that case came up for a further hea~ing on the
issue of ~emedy, so there would not even be the advantage of
having him follow through on his earlier reasoning. The
~urlsprudence in'this area will develop in the usual way; namely,
each case will be decided on the basis and with ~he benefit' of
whatever has been decided up %0 date. %n some sense~ every case
is a test case, If these ~easons are released before mny others,
this case may serve as a test case. That may have the effect of
stopping the multiplicity of cases that currently exi~.~' -'
We certainly do not read the award of Chairperson Shime in
Blake 1~?$/87 as precluding us from p~c:eeding with the hearing.
On the contrary, we feel that it is co~plete!y consistent with
Blake that we simply he~r the cases in zhe order that they '
naturally arise, applying the ~urisprudence as far as it goes and
grapplin~ with any new issues precisely where and when they
arise.
5
As for the request for expedited reasons, our results in
getting this award released as soon aS possible after the
September 19, 1989 hearing', will speak for themselves. The
parties must bear in mind that there are three members of the
Board whose ideas must be heard and who will all influence the
final result, whether they ultimately .all sign the award or
express dissenting views. Therefore it is difficult to make
promises as to the timetable for the release of an award.
Factual Background
The parties proceeded on a short ag~ed statement of facts
supplemented with the evidence of the Grievor and one Other
witness. The agreed statement reads:_ __ -.
1. The Grievor, Krystyna Wagner, was first appointed
to the unclassified staff on a contract for the period
of June 29, 1987 to March 31, i988 as a part-time (24
hours per week} Settlement Officer at Ontario Welcome
House in Hamilton.
Z. For the period of March 7, 1988 to March 31, 1988
%he Grievor's scheduled hours of work were increased to
36-1/4 per week.
3. The Grievor's contract as a part-time (24 hours per
week) Settlement Officer was renewed for the period of
April 5, 1988 to March 31, 1989.
4. The Grievor worked until March 31, 1989. She was
not appointed to any further contracts. ~
On the evidence, Ontario Welcome House is an agency that
provides referrals and counselling to immigrants. To accomplish
its mandate, it must attempt to communicate in the native tongues
of its clients. As such, it is us~Tul to have staff members who
speak many languages, and it is also useful to have different
staff members with different repertoires of languages.
For our purposes, we find a number of facts to be very
relevant. There were three Settlement Offfcers hired when the
Welcome House was established in Hamilton;-two full-time __ .....
classified staff and one part-time unclassified. The Grievor
assumed the unclassified position about a year later. At all
__ . times, the three Settlement Officers did precisely the same job, '
albeit using different languages. They were all covered by
same job description for Settlement Officer, which description
required the-Settlement Officer to speak English and at least one
other language. The original full-time incumbents spoke Spanish
and Polish, with the part-timer speaking Chinese and Vietnamese.
In the case of the grievor, she speaks a number of European
languages, including Polish. The configuration has changed f~om
time to time. But at all times the staff have all been
Settlement Officers, there being no special positions such as
"Polish Settlement Officer" or "Spanish Settlement Officer",
7
For what it is worth, the Grievor was asked to take the
civil service oath on her hiring, which is usually reserved for
members of the civil service (i.e. classified).
The Employer explained that the Grievor was not renewed
because of budget cuts, but more to the point when new budget
dollars miraculously appeared in March 1989 a new Settlement
Officer was hired who spoke several Middle Eastern languages.
Apparently the budget dollars have disappeared again, and he will
not be renewed, but one never knows if money will again be made
available. It clearly works to the Employer's benefit to have
some flexibility in terms of the languagem being spoken by the
staff at an~ given time, but the fact that two out of the three
positions are classified already creates significant limitations
on the ability to adjust to the changing faces' of 'new waves of
immigrants and refugees. ~owever desirable that flexibility may
be, it cannot necessarily justify having a quasi-permanent
position in the unclassified service to shuffle people in and out
of as a function of demographics or at wilI. It may be possible
to do that, depending to a great extent upon how the jobs are
defined by the Employer itself, but even in such a case
obligations to the redundant employee may arise.
Union's Argument
The Union's argument, in brief, is that the position to
which the Grievor was appointed was not properly an unclassified
position. Therefore, so the argument goes~ the appointment
8
having been improper the Grievor is not an unclassified employee.
A~suming 'we are prepared to go that far, the big question
remains: what is she?
The Union relies on Beresford, but realizes that there were
limits to what was decided in Beresford. It accordingly asks us
to go the next step and declare that the Grievor is to be
considered a classified employee with a right to'grieYelher
dismissal and other rights attaching to the classified status.
It is urged that we use our plenipotentiary powers to fashion a
remedy for the Grievor. It was a little unclear as to what
particular remedy was being suggested, but one remedy
specifically mentioned was to place the Grievor on a surplus list -
so that she would be treated as if ~h~ were a classified'employee
who had been laid off. A close examination of the Collective
Agreement reveals that there is no Such list for part-timers, so
that remedy is.impossible to award.
The Be~esfprd Approach
The Board in Beresford considered carefully the statutory
and regulatory framework within which the classified and
unclassified services exist. The significant statute is the
Public Service Act and Regulation 881 thereunder. The important
sections of the Public Service Act are as follows:
"l. [a). "civil servant" means a person appointed to the
service of the Crown by the Lieutenant Governor in
Council on the certificate of the Commission or by the
Commission, and "civ: '1 service" has a co;'respondin~
meaning;
(b) "classified service" means the parc o'f the
public service to which civil servants are appointed; '-
(g) "public servant" means a person .appointed under
this Act to the service of the Crown by the Lieutenant
'Governor in Council, by the Commission or by a
minister, 'and "public service" has a corresponding
meaning;
(i] "unclassified service" means the part of.the
public service that is composed of positions to which
persons are appointed by a minister under this Act.
G.-(1) When a vacancy exists in the classified service,
the deputy minister of the ministry in which the
vacancy exists shall nominate in writing from the list
of eligibles of the Commission a person to fill the
vacancy.
(2) The Commissi'on shall appoint a person nominated
under subsection (I) to a position on the p~obationary
staff of the classified service for not more than one
year at a time. __
7. The Commission shalI~ if requested in writing by
the deputy minister, recommend to the Lieutenant
Governor in Council the appointment of a pemson on the
probationary staff of the classified service to the
regular staff of the classified service, and the
recommendation shall be. accompanied by the certificate
of qualification and assignment of the Commission.
8.-(1) A minister or any public servant who is
designated in writing for the purpose by him may
appoint for a period of not more than one year on the
first appointment and for any period on any subsequent
appointment a person to a position in the unclassified
service in any Ministry over which he presides.
(~') Any appointment made by a designee under
subsection (1) shall be deemed to have been made by his
minister.
9. A person who is appointed to a position in the
public service for a specified period ceases to be a
public servant at the expiration of that period.
The important sections of Regulation 881 are as follows:
~ UNCLASSIFIED SER VICE"
6.-(1) The unclassified service consists of employees
who are employed under individual contracts in which
the terms of employment are .set out and is divided
into,
(a) Group i, consisting of employees who are employed,
(i) on a project of-a non-recurring kind.
[ii) in a professional or other special
capacity,
(iii) on a temporarg work assignment arranged
by the commission in accordance .with its
program for providing 'temporary help,
(iv) for feb'er 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 trainin~ program;
(b) Group-2]' c~n$istin~ of-~mployees who are ~empl-oyed-
on a project of & recurring kind,
(i) for fewer than twelve consecutive months
and for fewer than,
(A) $6-1/4 hours per week where the
position, if filled by a civil servant,
would be classified as a position
requiring $$-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 emplo$,ees 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-!/4 hours per week ur 40 hours per week.
11
What the Board decided in Beresford was that the job being
done by the grievor did not fit into any of the categories
recognized in Regulation 881, and that the power of the minister
to appoint to the unclassified service was limited tO those types
of jobs in any one of Groups I,, ~ or 3. If the job actually
being done by the grievor did not fit into any one of those
categories, then the appointment was improper and ought not to
have been made. That Board expressed itself in the following
way, at page 15 of the award:
" Section 6 of Regulation 881, as pointed out above, provides
that "the unclassified service consists of" contract employees and
"is divided into" 3 groups, which are set out in deta/l in the
remainder of the section. That language is cast in a way that is
"exhaustive" (as opposed to "inclusive"), and appears to prov/de,
in a way expressly authorized by sect/on 30 of the Act, a
definition of the kind of situation contemplated by inclusion of a
power of appointment to the unclassified service by way of sect/on
8 of the Act. Those 3 "Groups" set out /n the ~egulation, on the
other hand, cover a very wide range of situat/ons, and obviously
create a broad degree of discretion in a minister when considering
a fixed-term appohxtment to the unclassified service, rather than
an open-ended apDo/ntment to the c~assified, In fact, the bulk of
the appointments to the unclassified staff would in all 1/kel/hood
"speak for themselves", in the sense that they would, by their
nature, fall within the ~erms of section 6. It may well be that in
such cases no further ev/dence from the employer will be needed.
It is only, in other words, where the ev/dence perta/ning to the
position suggests on its face that the' posit/on fits into ~ of
the categories ~f employment set out in section 6 of the
regulations that an onus will arise upon the employer to pre~ent
e'~dence of its own which would demonstrate that the appointment
di,~ in fact fall w/thin one of the specified categories.
This is one of those cases. The position to which the
grievor was appointed was clearly not "seasonal", had no different
hours or other conditions of employment than the s/mi[ar posit/ohS
to which persons had been appointed to the classified service, and
all the evidence we have as to the temporal nature of the position
points to the contrary of it being of a "non-recurring" or
"temporary" kind of position. Yet, as discussed, we are compelled
to conclude that section 6 of the regulations, by its very terms,
requires an appointment to the unclassified servic~ under sec;ion
~ to fall ~-ithin one of the categories set out in the regulations.
Counsel for the employer, in light of the fact that no evidence of
;he emplc, yer's intentions or perceptions with respect to the
grievor's position was called, urged the B~ard to _assume that the
limited-term appointment would not have been made without the
kind of "good reason" which section 6 of the regulations itself
sets out.
We are not prepared ~o do that. Accordingly, we must find
on the evidence that we dc have that the position to which the
grievor was appointed was not one which fare within any of the
various situations encompassed by the three groups set out in the
regulations, and as contemplated by secticn 8 of the Publi____q
Service Act. We find, therefore, that the purported appointment
of the grievor to the "unclassified" as opposed bo the "classified"
service was improper."
In the instant case, we are of the view that this was not a
job that ought to have been filled by an appointment to the
unclassified service. It does not fit nicely into any one of the
categories created by section 6 of Regulation 881. The job has
all the attributes of a permanent pact-time position. Counsel
for 'the Employer suggested that it was~a-"project of. a recurring
kind" within Group Z. We are troubled by the implicit suggestion
that every job could be said to be a "project". If that were so,
then every part-time job could be filled with an appointment to
the unclassified se~[i~a~d--th~-whole category of Regular Part-· -
Time Civil Servants as recognized by Part C-~f-the-c'o'ilective
~ Agreement could be dispensed with at the whim of the Employer.
The rights of part-timers ~ained through the negotiation process
should not be ~o lightly regarded. We are not prepared to say
for all time precisely what is a "project". , but surely it would
not include a part-time j.~b that but for its hours of work is
indistinguishable from the job being done by someone else in the
same workplace who has the status of a full-time classified
employee. The Grievor w&_~ empl¢.yed in a job; she was not hired
to undertake a "project". Even if it was a project, can it be
13
said to have been "recurring"? This concept implies something
that stops and later begins again, according to a pattern that
may or may not be predictable. This "pro3ect" was continuous,
and clearly the limitation of "for fewer than twelve consecutive
months" has not .been met. The Grie~or worked for almost two
years. The fact that none of her contracts was for more than
twelve months does not change the fact that she was employ'ed for
more than twelve consecutive months. The Employer cannot bring
itself within the. l'ess-than-%welve-month limitation merely b!
-giving a series of short contracts.
Therefore, following the reasoning in Beresford, we conclude
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 --.
? of the Public Service Act. This may n~t have been the case
when Welcome House opened, because it is possible that the
Employer may not have know~ that the job was going to be as
permanent as it was. But if not-~ght from the beginning then at
some later stage the Employer ought to have concluded that the
job Was not one to which an unclassified employee could continue
to be appointed. At some point in time, it came under an
obligation to post the position under the provisions of either
Article 4 or Article 60 of the Collective Agreement. Having
failed to do so, then: we are in the position of assessing the
consequences that flow from that failure, and what if any
5enefits accuue to the Grievo~.
\ 14
The Remedy Question
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 to send
it on an ex~'ursion 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. 16-17:
"As the parties recognized at the hearing, h6~'~-vef, tha~ finding .... -'
[of an improper appointment] does not necessarily provide a~
answer for the 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 c~ntended, the
position would have had to have been posted. And there ha%'e, as
noted in the evidence, been further developments with the
'position since the grievor's tenure there ended. In all.of the._
circumstances, .%he~efore~ it was agreed by the ~art~es that
question of remedy be left at this stage to be addressed by the-
part~es, with the Board remaining seized in the event that the
matter cannot be resolved between them.
The Board simply finds a~d dec]ares, the'refute, t.hat 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."
No case to our knowledge has gone any further than this. In
the subsequent case of Milley 1972/87, which was also challenged
in the courts alongside Beresfcrd, Vice-Chairperson Mitahnick
commented on his award in Beresford in the following terms, at
page 7 of the award:
15
"Once again, what the Board had before it in Beresford was a
"dismissal" grievance, but the Board took the view that, as the
"defence" of the employer was that the grievor's employment had
simply come to an 'end a~ a result of a. predetermined limitation on
its term, the Board was prepared tm address the Union's argument
as to whether that predetermined limitation had been lawfully
imposed, in agreeing %0 direct its mind %0 that question, however,
the Board expressly cautioned (at the bottom of page 13) that it
was doing so "for whatever it may ultimately mean to the grievor
in terms of relief". What it did in fact mean, as the government
in its submissions before us notes in the present case, was not,
and has not been decided in Beresfprd. As the ~ast page of the
decision sets out, the Union itself foresaw problems with the form
of remedy that would be appropriate, owing in particular to the
fact that appointments to the "classified service" can only be
made through the vehicle of a postin~ (see Article 4 of the
collective agreement). But in answer to another query put to us
by the government in the present case, if the ultimate result of
an improper appointment to the ._u. rAciassified service were found to
be that the ensuing period .,of employment must therefore be
treated as employment in the "classified service" (and again, no
case, including the present, has reached the point of deciding
that yet), such employment would be Subject to the normal terms
and conditions attaching to employment in the "classified service",
.- including, in particular, the ser~vi_ng__o~f~a p~ro_ba_tt0nary period."
The same cautionary note was sounded in Bressette, at p.22:
"Having found that the grievors were not properly appointed to
the unclassified service, this Board now turns to the question of
whether the grievors are entitled to rely on sect/on 4.1 of the'
collective agreement~ In Beresford by agreement of the parties,
once the Board had determined that the gr/evor was improperly
appointed to the unclassified service the Board remitted the
m_-tter to the parties to attempt to fashion a remedy while the
Board remained seised in the event the matter could not be
resolved between them. To this date, presumably because of
several applications for judicial review, that issue remains
outstanding."
The award in Bressette merely sent the issue back to the
parties, without deciding what if any remedy this Board could or
should award. Therefore, we are left to decide this aspect of
the grievance on first principles.
The Appropriate Remedy
There are two basic principles which we recognize~as
important to observe in this case. Those principles are:
1. The jurisdiction to apply a remedy should be directed to
compensating a grievor for his actual loss or detriment suffered
as a result of unlawfu1 ~anagement action. 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 confer a windfall on a
grievor, by compensating someone who has not suffered any actual
loss or detriment.
2. In fashioning a remedy, this Board should not-order one
side or the other to breach the Collective Agreement or act
contrary to a statute or regulation. This may be viewed as a
variation on the theme that two wrongs do not make a rig~t-~ ....
Dealing with the first Point 'first, we must remember that
the ~rievor's complaint essentially arisem out of a contract,
whether out of her individual limited-term contracts or out of
the Collective Agreement. Absent some contract, the Employer
owes her no duties, In a sense, all grievances are complaints
that the Employer has breached the contract, either in relation
to some express term or to some implied obligation that has
become recognized in the labour relations context. In fashionin~
a remedy, boards of arbitration are attempting to give the
17
grievor the full benefit of his bargain, .or to "make him whole".
Another way of expressing it is to put the ~rievor into the
position he would have been in had the EmploYer acted lawfully.
But if a grievor 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 right'in some fashion. That is
the intent of a declaration, which assumes that what is declared
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 detriment to the ~rievor suffered as a
direct consequence of the breach, ~I~?~-tha~-'de~riment'that-this
Board will be willing to remedy.
It is precisely the lack of any obvious detriment that
strikes us in this case, and may welt characterize most if not ;
all of these types of grievances. It is difficult to see how the
Grievor has lost anything as a result of management's unlawful
action. If anything, she may have benefitted by it.
Consider the possibilities: had the Employer decided to
post the job 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 competition from inside candidates who by virtue of their
seniority would have had a significant advantage in the
competition. It is noteworthy that the job in question is
classified at the OAG 11 level, which means that it is fairly
senior and might well have been an attractive proposition for;
internal candidates. Assuming that the Employer had decided to
post the position only after one or more of the Grievor'~
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
have been considered "length of continuous service" within the
meaning of Article 25 of the Collective Agreement. As we read
that Article, only if she had succeeded in obtaining the job
would she have been permitted to tack on her time under contract
to her seniority. All that she has arguably lost, therefore, is'
a possible opportunity Which on the-facfs--~f-this-c~se--is of a
highly speculative value. Probably, the Grievor would be no
better off had the Employer treated the position as it ought to
have, namely as a part-time classified position. Having had the
benefit of the contract for some two years, the Grievor may
indeed be a beneficiary of the Employer's failure to satisfy the
requirements of the Public Service Act, the Regulation and the
Collective Agreement.
It is interestinE also to analyze the situation from a
purely legal 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 re~arded as an "illegal contract". Fundamental principles
of con~ract law hold that where a contract is illegal, where both
19
parties are equally to blame for .the illegality (in the sense
that they both had equal knowledge of the 'illegality and control
over it), then as a rule neither party will be entitled to invoke
the aid of a court (or a board of arbitration) if that party
becomes dissatisfied with the course of events transpiring
thereunder. The rationale is that no one should be able to take
advantage of his own wrongdoing. In the situation as here where
there is a disparit~ in bargaining power and the stronger party
(the Employerl is solely responsible for the illegality, then the
innocent party has aa option: he may either ask that the
contract be enforced, or that it be rescinded: see Sidmgy Ltd.
~t ak. v. Wehttam.lnvestments Ltd. (1967} 61D.L.R. (2d)- 3§8
(Ont. C. A,), in particular at p,38§-8. What that case and
others have held is that the innocent Party ~&nnot seek
enforce only that part of the contract that he likes, while
asking that other parts of it be ignored or thrown out. That is
in effect what the Grievor is asking us to do. She wishes to
keep in force that Fart of the contract that gives her' the-status-
of an employee, but wishes to have ignored those parts of the
contract that impose an inferior status and a time'limitation.
(In fact, she even goes one step further and asks 'us to rewrite
the contract to transform it into something quite unlike what it
is on its face.}
Enforcing the contract means enforcing it in all respects.
Rescinding the contract means attempting to put both parties back
into their respective positions before the contract was entered
into. Neither option could result in the Grievor obtaining the
status she seeks in this grievance, namely to be a classified
employee.
If we approach the exercise here as enforcement, no greater
status can be founded on the contract that she entered into. The
jurisprudence of this Board which was recited in Beresford and
which is still applicable, established the principle that status
derives from the method of appointment and not from the nature cf
the job, In S~mpson GSB 694/85, at p.l$, the Board stated:
"The Public Service Act crea~s the distinction between the
classified and unc~ssffied service, and it crea~s that distinction
not on the basis of the par~cular jobs ~ be per~rmed but. rather
on the basis upon which the employment status of a par~cular
employee is created." - - - -
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 approximately back into
the position she would have been in had the illegal C6htract.
never been entered into.
This brings into play the second fundamental principle which
we alluded to earlier, that we should not order a party to breach
the Collective Agreement, a'statute or a regulation, This Board
by itself has no jurisdiction to confer status. That is ~n
exclusive management function. We can only order the Employer to
make an appointment~ either retrospectively or prospectively,
~hich would confer some status. But if we were to order the
Employer to appoint the Grievor to a classified position, we
21
would in effect be ordering it to make ~he appointment without a
posting or competition, in defiance of Article.~O, the'relevant
portions of which are:
ARTICLE 60 - Posting and Filling cf Regular Part-time
Positions
60.1 Effective March i6, 1987, when a vacancy occurs
in the Classified Service for a regular part-time
position in the bargaining unit or a new regular part-
time classified position 'is created in the bargaining
unit, it shall be advertised for at least ten (10)
calendar days prior to the established closing date
when advertised within a Ministry, or it shall be
advertised for at least fifteen (15) calendar days
prior to the established closing date when ~dvertised
service-wide, Ail applications will be acknowledEed.
Where practicable, notice of vacancies shall be posted
on bulletin boards.
60.$ In filling a vacancy, the Employer shall give
primary consideration to qualifications and ability to
perform the required duties. Where qualifications and
ability are relatively equal, length of continuous
service shall be a consideration.
The remedial approach of this Board should be to order a
party to do something that it ought to have done and is permitted
to do. That is consistent with the decision of the Divisional
Court in Re OPSEU (Berrw) and the Cro~ in Right of Onta~iq
(unreported), Feb. 17, 1986, The Honcurable Mr. Justice Reid at
page 14-§ of the decision commented thusly on this Board's
jurisdiction:
"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 has been stated in unequivocal terms by this
court...
The Board's obligation under s.19{1) is :o "decide the matter".
When looked at without the confinement imposed bF Article 5.1.9-
''the matter" grieved was wrong classif:.~&tion. If the Boa:'d
concluded that the classification was wrong, its manda:e was to
effect a proper classification. Its jurisdiction is unrestricted. Its
mand&te is remedial."
As noted, that case dealt with ¢lassifi'catien, and the
upshot is that the Board now routinely orders the Employer to
create new classifications which more correctly describe the job
being done by an employee or group of employees. In so Ordering,
we merely require the Employer to do something that is within its
exclusive sphere of activity. It need not breach any law or the
Collective Agreement; to the contrary, it must obey the law.
But it would be completely different were we to order that
the Employer grant classified statu~ to the Grievor in this case.
We would be ordering the Employer to-compound its own error, and
permit the Grievor to "jump the queue" over everyone else in the
bargaining unit for whose benefit Article 6~f t~-~llective
Agreement exists. We cannot and would not order the Employer to
overlook those.rights. The most that we can do is oblige the
F~nployer to obey the Collective Agreement ar, d, should it decide
to fill the position in the future, to post it in accordance with
either Article 60 or Article 4. To compensate the Grievor for
her lost opportunity, such as it may have been, we can safely add
a requirement that the competition be open at least to the extent
that the Grievor shall be invited to apply and her application,
if any, shall be considered in good faith by the Employer.
Should she choose to apply, she will be able to point to her
experience on the job as significant evidence that she has the
ability and qualifications to perform the required duties.
Should she be 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 Employer
will have done what it ought to have done and the ~rievor will
have been given the opportunity that she might have enjoyed at an
earlier date.
· CONCLUSIONS
Thus, to summarize:
1. We declare that the job.~hich the Grievor performed
ought to have been filled by aposting and an appointment to the
classified service.
2. We order the Employer to post the job in compliance with
Article 4 Or 80, depending upon .whether it wishes to have the ~ob
full-time-or part-time. Since we are led to believe that the job
will be unfilled as of October 31, 1989 because of a lack of
funding, this order will only apply if and when the Employer
wishes to fill the pc$ition again.
3. The Grievor has no present status other than someone who
was at one time an unclassified employee. She is not classified,
nor has she ever been classified.
4. As a matter df fairness to the Grievor, and as an
attempt to put her into ss good ~ position as she could possibly
24
have hoped to be in had the Employer recognized its obligation at
an earlier stage, we order the Employer to permit the Grievor to
compete for the job &~ an outside candidate, either in a truly
open competition or as an exception in an otherwise internal
competition. The Employer must consider her application in good
faith, and in order to ensure that this obligation is not
ignored, the Grievance Settlement Board will retain jurisdiction
to review the process of selection should the Grievor seek such a
review, to make sure that it meets the requisite standards for a
competition, Any such" ' "
grievance would not derive from the
Collective Agreement in the usual way, but~would be an extension
of this grievance.
While this issue i~ not before us except 'indirectlyV'we note
that the current incumbent in the position would probably have a
strong case to be given an opportunity to compete for the
position as well. It would not be inappropriate should the
Employer voluntarily invite'him to do so, although we are not~
ordering it.
We are quite mindful that this award may receive more than
its usual share of attention, so we wish to add a few remarks
some of which may be obiter~ It is a curious turn of events
which sees unclassified employees grieving their status.
Grievances under Article 4 have been brought fairly often over
the years, at the instance either of the Union or a bargaining
unit employee who would have liked to compete for the job. The
complaint is typically made that the Employer is abusing its
25
right to appoint people on contracts to a job that ought to be a
classified position. The remedy as far as we know has always
been to order management to post the position. We cannot see how
it should be fundamentally different when the impropriety of the
appointment is raised by the unclassified employee himself,
While the Board may not in those cases have been specifically
asked to turn its mind to the question of the unclassified
employee's rights, it would be most strange to have %-astly
different results arising out of the same breach by the Employer
depending upon who raises the complaint. Our jurisdiction to
decide "the mat~e~" surely entitles us to look at the situation
fairly broadly to see that justice is done to all parties who
have been affected..by the Employer's actions.
Of course, all cases must be decided on their unique facts.
In the case at hand, we feel that we have gone as far as the
facts justify, .to compensate the Grievor for whatever actual loss
of opportunity she cpuld be said to have suffered. Other cases
will have to examine what, if any, loss or detriment has truly
been borne by a grievor in consequence of the Employer's
unilateral decision to make an unauthorized appointment to the
unclassified service. Man)' complaints may p~ove to be totally
illusory and require no redress beyond ensuring that the Employer
now post the job, Other grievors may be able to convince the
Board that something further is called for. We cannot speculate
on what circumstances may move future panels of the Board to
invoke further remedial measures, nor what those measures might
be.
In the result, then, the ~rievance is allowed to the extent
outlined earlier in ·this award,
Dated at Toronto this27 day of October , 1989
~_~__~ -3--~~- -
Eric~. Slone, Vice-Chairperson
M. Vorster, Member
H. Roberts, Member
DISSENT BY MENNO VORSTER- UNION
RE: OPSEU (WAGNER~ AND THE CROWE !IGHI_~ OF O;~TARIO (MINISTRY OF
CITIZENSHIP) 351/89, 352/89
The grievor, Krystyna Wagner, was first hired as a Settlement
Officer at Welcome House in Hamilton in June [987. She was one
of three Settlement Officers empioved at nhis Welcome House. The
other two Officers were appointed' ~o the.:lassif!ed service while
Ms. Wagner was given a co~tract znd considered an unclassified
employee,
All three Settlement Offi~e~s lid relatively the same job
functions, although each had different language skills. The job
description specifies the need for ~ilingualism but does not
dictate the pa-rticular language.
7
Ms. Wagner worked in the position under successive individual
contracts. They included a nine-=onth ~ontrac~ for 24 hours per
week, one for a month at 36 1/4 weekly and a third contract for
24 hours a week for a twelve month period. When the last
contract expired on 'March 31, i~$9, her position disappeared
because of budget cuts. Shor~i? thereafter, however, another
unclassified Settlement Officer was app-inted '-~ho spoke several
bliddle Eastern languages. Ms. W~er gr_eved l~r dismissal.
28
The griever was at all times an emp].ovee under Section
· of the Crown Employees Collective Bargaining Act. -Onder Section
18.(2).(c) of that Act, the employee is entitled, at the very
least, to grieve a dismissal from her employment "without just
cause" Furthermore, unclassified employees have the right to
grieve under Article ~.15 of the collective agreement. The
Employer contends that Ms. Wagner's individual contract had
expired and that this does not constitute a dismissal. The union
argues that Ms. Wagner is a classified employee, albeit
improperly appointed, and as a result has the right to grieve her
dismissal as being unjust.
In Beresford and the-Ministry Of Government Services, the Board
summarizes the position of the §rievor on page 5, as follows:
"Thus, if one assumes that a minister or other
designated person ached-within-his or---her author-ity--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 expiratioa of
th~ period of the contract. There is~, in other words,
in the language of the Board's lengthy jurisprudence
dealing with this point, no "dismissal"
Vice-Chairperson Mitchnick goes on to say that the authority to
appoint to the unclassified service is derived from Section 6 of
Regulation 881 under the Public Service Act. He found that the
griever's position did not fit into anv of %he three groups of
unclassified employees l~sted ~n this sect~.~ and therefore
concludes that:
"Accordingly, we must find on the evidence tha: we do
have that the ~osition to which the griever was
appointed was not one which falls within an}' of the
various situations encompassed by the 3 Groups ~et out
in the regulations, and as contemplated by section 8 o=
the Public Service Act, We find, therefore, ~hat the
purported appointment of the grierc~r to. the
"unclassified" as opposed to the "c'tassified" service
was improper,"
In the instant case, fcr the same reasons as cited in ~eresford,
the majority finds tha~ this position ought righ~fu!l? to have
been filled under sections 6 and 7 of the Public Service Ac~.
Havin~ thus dealt with the issue of the position, namely thst it
is a classified positicn, the Board turns to_the ques:ion of the
status of the grievor and subsequent remedy. The conatusions
are that the employer must post this classified position in the
future and that the grlevor is only to be considered as for~er
unclassi.fied employee. As a matter of fairness to the
grieVoUS-the-Board-orders the~empl~yer to afford.the grievor~the
opportunity to apply for the posting when it occurs.
Furthermore, the Grievance Settlement Board will retain~
jurisdiction to review-the process of selection and ensure that
it meets the requisite standards for a job competition.
I must dissent only on the issue of whether the grief'or is
classified, unclassified or neither.
30
The Public Service Act contemplates only two types of employees
to the public service, "classified' or "dnclassified".
Appointments are made under Sections 6,7 and 8 of the Ac___kt. There
are no others.
In this award, the grievor is oaly considered to be a "former
unclassified employee". But, since the gr.ievor held
a position that by the ruling of this award was in fact a
classified position, and because the grievor was only denied this
designation as a result of an improper appointment, it would be
more accurate to describe the grievor as a "former unappointed
classified employee". The error by the employer was notVthe
conditions under which the employee worked, but rather the
imposition of those conditions by the incorrect appointmen- to a
classified position. Had she been properly appointed, albeit
through a competition, no error by the employer would have taken
place.
Beresford also places the entire emphasis in its findings on the
appointment, not on the job, After finding the position to have
properly been a classified one, the award states:
"The Board simply finds and declares, therefore, tha.t
the purported limited term appointment of the grievzr
to the "unclassified" service was, on the basis of the
evidence and the particular facts, before us, impro~er
and unauthorized by the provisions e~ the Fubi: c
Service .-'.ct and-the regulations thereun,ler.
This award seems to fashion a third type of employee,
.characterized as neither classified or unclassified. I
respectfully submit that the grievor is, at the.very least, an
"improperly appointed classified employee". It is the
appointmen..t which should be corrected, not the job or her ststus.
Even ~hough Berry deals with classifications, the principles
outlined in that case gives the Board the authority to provide
this remedy:
"These decisions make it clear that the individuals
right to grieve conferred by s. 18.2 cannot be
restricted by a collective agreement. That being the
law, the majority was simply wrong in thinking its
powers were limited by Article 5.1.2. The Board is
obliged to follow the law and no question of
reasonableness arises, i think it had that power. Its
authority under s. 19 of the Act is untrammelled. It
"shall decide the matter".
Had proper appointment to the classified staff been included in
the award, the grievor would have been entitled ~o termination
pay under Article 81 Of the collective agreement. Such a payment
would be superior to [hat given the unci~ssified staff who
receive payments under the Employment Standards Act. In
addition, those full-time grievors that follow, whose remed? gay
well mirror this one, will be entitled to the surplus procedures
prorided by Article 24.
Beyond the issue of appointment, and exclusive of it, ! must
commend the Vice-ChairFers°n ~n fashioning a remedy which, under
the circumstances, is o.st He has been true to his words:
"Our jurisdiction to decide "the matter" ~urely
entitles us to lock at tie situation fairly broadly to
see that justice is done to all parties who' have been
affected by the £m0toyer's actions."
ADDENDUM
351/89, 352/89 .(Wagner)
While I concur with the general terms of the a~ard issued
on the above case, certain elements cause me some concern..
On page 23, Conclusions, items 1. and 2., the award
indicates that the position the grievor held, and any position in
the future 'the Employer wishes to fill in the same area, should be
regarded as being in the classified service.
Section 18 (1)(a) of the Crown Employees Collective
Bargaining Act states 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...and
classification of positions."
Accordingly, I question this Board's authority to
determine or pre-determine that a position must be in the
classified service. This decision would seem to be prope~I¥ that
of the enployer.
Harry Roberts