HomeMy WebLinkAbout1989-1434.Melisek.92-04-29 ;. ,.~ " ;',. ;' ~ ,, · ONTARIO EMPLOYl//:S OE LA COURQNNE
E.~, .,,~ ..... "~., . CROWN EMPLOYEES DE L 'ONTARIO
BOARD DES GRIEFS
180 IDtlNOA$ STREET WEST, ~UITE 2~, T~RONTO, ONTA~. MSG 1~ TE~ONE/T~LEPHONE: [416)
180, RUE DUNOAS OUEST, aUREAU 21~, TORONTO (ONTAR~], MSG 1Z8 FACSIMi~/T~COPlE : (4~6) 326-~3~
[434/89
IN TH~ NATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEEs COLLECTIVE BARGAINING ACT~
Before
OPSEU (Melisek)
~ Gr~evor
The Crown in ,Right of Ontario ,
(Ministry of Northern Development and Mines)
" Employer
BEFOR~: M. Gorsky Vice-Chairperson
F~ CoIlict Member
FOR THE D. Wright
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapmanl ,. --
Barristers & Solicitors'
FOR THE T. Moseley .-
EMPLOYER Counsel '
Genest, ~urray, DesBrisay, Lamek~
Barristers & Solicitors
October '16, 1991 '
I
DECISION
The Griewor, Joseph Melisek, filed a grievance on September
29, 1989, the statement of the g~ievance being:
That I have not been appraised according to governing
standards and principles under the Crown Employees
Collective Bargaining Act, article #t8, section ~2B. ~
The relief requested was:
That I be awarded the position as advertised in
competition MNDN-47 and that I be reimbursed for any and
all monies, benefits and seniority lost.
At the opening of the hearing counsel for the Employer raised
a preliminary objection as to the arbitrability of the grievance.
It was the position of the Employer that the Grievor, at the time
of the c~mpetition, was an unclassified .employee without the right
to grieve an alleged violation of art.icle 4 of the collective
agreement. It was agreed that, notwithstahding the form of the
grievance, it was a violation of article 4 that was being alleged.
It was agreed by the parties that the Board would first deal
with the preliminary objection and issue its decision. The
position of the Union was that if the preliminary objection was not
allowed and the matter declared arbitrable 'then it would call
evidence concerning the alleged violation of the.provisions of
article 4,
There were certain facts that were agreed to or were not the
subject of challenge, which are as follows:
4 1. In 1983 a Drill Core Library was established by the Ministry
of Natural Resources, now the Ministry of N~thern Development
and Mines, in Sault Ste. Marie.
2. The essential purpose~ of the library war to collect and
catalogue drill core"samples. ..
3. Shortly after the library waS. established two oQgoing
positions were created to s.erve as its staff: 1. Dr'ill Core
Library Geologist ahd 2. Drill Core Library Assistant.
4. The first person to occupy the position of Drill Core Library
Geologist was Jeff Donald, who was appointed in 1984.'
5. ~The G~ievor had worked in the Library as ~an unclassified
contract summe'r:employee during 'the summers of l'983'~'and 1984.
Conunencing in M~y of 1985 th~ Grievor worked in the Library
pursuant to a series of contracts 'which ended in October of
.1987.
6. During tha'period~of'his %m~loyment with the'Ministry in the
Drill Core Library, to October. or 1987, t~e Grievor had worked
.mainly as a Drill Core Library Assistan't compiling data from
mineral exploration files.
7. On October 16, 1987', Mr. Donald was Seconded to a si×-mon~h
3
training and development assignment from his Drill Core
Library Geologist position.
8. On October 19, 1987, ~the Grievor was appointed as an
unclassified staff member {Group~l) for a contract period to
expire on April 19, 1988. The d~ration of his previous to
last period worked was shown as being from June 15, 1987 to
October 18, 1987.
Sometime in April of 1988 Mr. Donald's secondment was
extended, and on April 20, 1988 the Grievor's appointment was
extended to expire on July 19, 1988.
10. For reasons which were not explained, the Grievor~s contract
was again extended on J~ly 19, 1988 to September 19, 1988. We
assume that this was done in the light of advice that Mr.
Donald would be returning to the position that he held by
September 19, 1988.
11. On September 12, 1988 Mr. Donald obtained an unrelated
· permanent position and it then became clear that he would not
be returning to his position as Drill Core Library Ge61oqist
in Sault Ste. Marie.
i2. The Grievor continued to work as the Drill Core Library
Geologist until his contract expired on September 19, 1988.
4
13, The Grievor entered into a new co~ntract.with {he Employer on
November..7, 1988 to ser~ve as the Drili Core Library Geologist
aS an'unclassified employee in 'Group 1, which contract Was to
expire on March 31, 1989.
b14. On April 1, 1989 the Grievor's contract as Drill Core Library
Geologist, in the unclassified service, Group 1, was extended
to September 1, 1989.
i5. On June 10,. 1989 the. Employer posted the position-of' Drill
.... C~re Library Geologist in Sault Ste. Marie pursuant to article
,~. ~ of the Collective agreement'.' ·
16. On September 6, 1989 the competition was held and the'Grievor
was.one of.the unsuccessful appli6ants.
17. The Grievor filed a grievance on September 29, 198'9, as above
stated ..
'Mr. G. Bennett, 'who is employed by the Ministry as the
Resident Geologist in Sault Ste. Marie and is, among, his. other
duties, responsible for overseeing the operation of ~he Drill Core
Library, testified that towards the middle of September 19BB, about
the time when'Mr. Donald obtained an unrelated permanent position,
there was a real doubt' as to whether the position of Dr.~ill Core
Library Geologist would continue to' exist in Sault Ste.~ Marie.
5
According to Mr. Bennett, he had had ongoing discussions with his
manager concerning the latter's desire to do away with the
position. It was Mr. Bennett's further evidence that between the
expiry of the Grievor's contract on September 19, 1988 and the
commencement of his new contract on November 7, 1988, no one
occupied the Drill Core Library Geologist position in Sault Ste
'
Marie. Mr. Bennett believed that the position was not filled
between September 19, 1988 and November 7, 1988 because the office
was then not very busy.' When Mr. Melisek was given a new contract
on~ November 7, '1988, to expire on March 31, 1989, there remained an
uncertainty as to whether the position would be continued, and the
Employer did not wish to have to post .the position unless it had
concluded that the position would continue. The situation remained
unchanged on April t, 1989 when the Grievor's .contract was extended
to September 19, 1989, and it was only about June 10, 1989 that the
final decision was made to continue the Drill Core Library
Geologist position in Sault Ste. Marie and the position was posted
accordingly.
The position of the Employer was that the grievance must be
dismissed by reason of sections 8 and 9 of the Puh[%c Service Act
which provide:
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 unciassified service in
any Ministry over which he presides.
(2) Any appointment made' by a designee under
subsection {1)-' shall be deemed to have been
~ made by his minister. R.S.O. 2980, c.
8,
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.-
R.S.O. 1980, c. 418, s. 9.
It was the~position of the Employer that as the Griever had ~
been appointed to the unclassified service pursuant, to section 8
for aLspecified per~od, at the end of that period he ceased to be
a pub'li~ serva'nt, and'had no right to grieve.
It was the position of the Union that the Griever had not been
properly appointed to the unclassified service and ~hat,
· accordingly·,· ~he pr0visions~.'of section 9 of the Public Service Act
did not .~pply.. If .the provisions of section 9 of the' Public
Se'rv~ Acg did not .apply, a question would ari'se as go whag
"remedies were available and appropriat~ in the circumstances. Both
parties agreed that if the Griever had bee~ properly appointed to
the unclassified service and remained so, that would end the matter
and the grievance would have to be dismissed without entering upon
a consideration of the ~ppropriateness of the. available remedies.
In order. {o ascertain whether the Griever was properly
appointed to the unclassified service it is necessary to review
section 6 of Regulation 881/89 pro~ulgated under the Public Service
As_% which' is as follows:
6. (1~ The unclassified service consists of employees
7
who are employed under individual contracts in
which the terms of employment are set out and
is divided into,
(a) Group 1, consisting of employee~ who are
employed,
(i) on a project of a non-recurring
kind,
(ii) in a professional or other
special capacity,
(iii) on a' temporary work assignment
arranged by the commission in
accordance with its program for
providing temporary help,
(iv) for fewer than fourteen hours
per week or ~ewer than nine
full days in four consecutive
weeks or on an irregular or on-
call basis,
(v) during their regular School,
college or univerzity vacation
period or under a co-operative
educational training program;
{b) Group 2, consisting of employees who are
employed on a project of a rec.urring
kind,
(i) for fewer than twelve consecutive
months and for fewer than,
iA) 36 1/4 hours per week where the
position, if filled by a civil
servant, would be classified as
aL 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
annually recurring position where the
contract provides that the employee is to
work either-.36, 1./4 hours'per week or
hours per week;
(d) Group 4, consisting of employees,
(i). who are appointed pursuant to s.
of the Act, whether' or not the
~ duties performed by them arE, or'are
similar to, duties perfQrmed' by
civil ~servants, and
~ · ~' ~(ii) who are not employees that belong to
Group 1, 2. or 3. · O. Reg.
3(1), part; O. Reg. 129/89, ~s. 1.
Although Group 4, -created by section 6 (1)(d) of the
Regulation, came'.into ~effect on March i3, 1989, the arguments of
the 'parties we~'e '~'~estrict'ed to wh~the~ the Gri~vor had ~been
properly appointed '~s a GroUp 1 Unclassified employee;-and in
particular wh~t~er~he"~as employed "on a project~ of a non-recurring
kind ''~ as provided for in Sections 6(1)(a) (i) or 9hether he was
employed "on an irregular or on-call basis" as ~rovided for in
section 6(1) (a) (iv).
After the hearing, counsel, for the .Union ~ubmitted two cases
to us, dealinq with the me~aninq ·of "irregular or on-call basis":
Carson, 88/88 (Springate), at~ p. 9, a~d Roher,t/89 (Wilson) which
followed Car~onl~ Both cases held that the words~ in section
6(1)(a)(iv) refer ~o employees who do not have regularly scheduled
9
hours and do not consistently work the same number of hours on a
weekly basis. Certainly, the Grievor Was not employed on an "on-
call basis." His' individual contracts were for specifically
defined periods and during those periods he worked in a manner
indistinguishable from the incumbent. Similarly, it is not
possible to regard the Grievor as having been smployed on "an
irregular.., hasps." The Grievor was employed on a regular basis
with only one period of any significant hiatus between contracts,
Accordingly, the 'issue as to whether the Grievor was properly
appointed to the unclassified service falls to be decided on
whether he was "employed... on a project of a non-recurring kind...
After the completion of the hearing, counsel for the Union
sent us the decision in O'Breza, 1101/88 (Fisher). In that case,
as in the case before us, the initial question for determination
involved whether oK not the grievor was within Group 1 pursuant to
section 6(1)(a)(i) of Regulation 881 o£ the Pub~i~ Serv~e Act. In
that case, at p.2, it was noted that:
When the Grievor was first hired he was put on excluded
contracts, in other words, he was not made part of the
bargaining'unit. On September 13, 1986 the Grievor was
put into the bargaining unit as a result of a OPSEU
complaint. The decision to extend the program for
another three years was made prior to the decision to put
the Grievor in the bargaining unit.
in the 9'Brez~ case, the grievor had been employed on a series
of nine term contracts, commencing October 7,1985 and ending on
September 30, 1988.
l0
In setting out the ~union's argument, the decision in the
O'Breza case, at p,3, states:
Section l(ll(f)(viii of C.E.C.B.A ' contains a provision
which closely parallels Section 6(1)(a)(i) of Regulation
881 under the Public Service Act. The section speaks of
persons who 'are' excluded from the bargaining unit and
reads as follows:
· ~' f) "employee" means a C, r0wn employee as defined
in the Public Service Act but does 'not
include,,
vii) a person engaged under contrac~.,in a
professional or other special capacity,
Or for a project of a non-recurring kind,
or on a temporary work assignment'
arranged by the ,Civil Service Commission
in accordance ,with its program for
providing temporary help.
'~ insofar as the grievor was made a member 'of the
bargaining unit on September 13, 1986 the employer itself
acknowledged 'that the project was n~ longer of a non-
. -.. ~,- recurring kind and therefore it cannot now rely on the
~. . .... ~. argument that the grievor was employed on a Project of a
non-recurring kind.
~,The argument, of the'emPloyer is set. out
.,~ The employer relies' hea~i!y on the case
Public Service Labour Relations Tribunal - T~/19/77,
~ Chairman Shime)' This case involved, an application by
, ~, the Union for a declaration that Mrs. -Lamey was a member
of the,bargaining.unit. The sole issue was whether or
"~ not Mrs. Lamey was employed on a project-~of a non-
recurring nature within the~ me'aning of Section
l(1)!g)(vi) of C.E.C.B.A.
Mrs. LJmey was aPpointed, on cont~ract to provide n~rsing
services to a s~ction of a hospital that was being phased
out over a number of years, She worked alongside
classified staff performing the ~same duties as them. In
fact, one day a month she even worked in the regular part
of the hospital. She voluntarily paid union dues and the
employer agreed to'deduct a~d remit the dues from her
wages. Mrs. Lamey knew at all times that her employment
was of a temporary nature and would cease no later than
when the unit had been phased out, The reasons of the
Chairman were as follows;
11
After considering the evidence and the arguments we
are satisfied that the phasing out of the Mental
Retardation Unit was a b~na fide undertaking by the
employer and that Mrs. ,Lamey was hired with the
full understanding that she was to be em?loyed on a
temporary basis while the unit was being phased
OUt.
We are further satisfied that the scheme or plan to
phase out the service was of a non-recurring nature
regardless of the fact that there is not a definite
termination date. The experience to date coupled
with the projections and the very nature of the
scheme indicate that there is a bona fide attempt
to terminate the Mental Retardation Unit and that
there is no expectation that the unit will be
resurrected at a future date,
The remaining issue that we are confronted with is
whether the phasing out was a project within the
meaning of the Act. In simple dictionary,terms a
project is a "plan" or a "scheme" or a "planned
undertaking". Clearly, in context, this attempt to
phase out the Mental Retardation Unit.fell within
the plain meaning of. the term. The phasing out
operation was a plan or a scheme or an undertaking
to place the residents of the Mental Retardation
Unit ~n other surroundings where they received more
appropriate treatment. The project required
additional staff or supp'lementary staff in order
that it be carried out. It is not relevant that
the work is similar to work performed by other
permanent or classified staff; clearly there are
numerous projects which may be required by the
government from time to time where the work is the
same or similar to work being performed by
government or classified employees. Thus in the
example cited by the union of a Royal Commission,
there could be office and 'clerical staff performing
work that is performed by classified government
employees. The p~rpose of the section i~ to allow
the employer some latitude or flexibility in
dealing with special situations without having
persons appointed to work in those situations
become employees for alt relevant purposes.
Clearly that was the situation in this case and it
was the understanding of both Mrs. Lamey and the
employer.
The Board decided at pp.5-6:
It is noteworthy that the Lame¥ d~cis:ion is no~ of the
Grievance Settlement BOard but of the Tribunal?_ Th~s
simply confirms the f~ct 'that the question of whether or
not a person is working on a prgject of a non-recurring
kind is one that goes solely to the quest~ion of whether
or not one is a member of the bargaining unit. Given
that one cannot be in the bargaining unit ~f their work
is on a project~ of a non-recurring kind, it makes no
sense to then consider whether 'A bargaining unit person
is workin9 on a ~roject of.a non-recurring kind as this
is not possible within the statutory scheme. In. essence,
the'employer determined that question When'they put the
grievor in the bargaining unit in September~ 19~5, It is
interesting to note that this decision to put the grievor
in the bargaining unit came-just after the O.F.F.I.R,R.
program had been extended 'for a further three year
period~ it is reasonable to infer ~rom this that the
employer agreed to put the grieyoF into the bargaining
· unit at. that time because the original reason for his
exclusion'(project of a non-recurring kind), no longer
existed.
Fu'rthermo~e, to now make a ruling that the grievor was,
., in fact, emptoye~ on a project of 'a non-recurring ki~d
' 'would mean that the Grievance Settlement Board wo'uld b'e
determining whether or not a person was pr6perty a('member
'~" ~'' ~of the bargaining unit' as that is the only logical result
'~ that could flow from such a finding' The Gri'evance
Settlement Board has no authority to.determine such a
question- as onl~ the Tr. ibuna] ~ has ~tbi~ 'poWer ~"uhder
Section 40(1) of C.E.C.B.A.
It therefore flows that it is not Qecessary to determine
on.the facts of this case whether or not-the grfeVor was
workin9 on' a project of a non-recurring kind for the
following reasons:
a) the parties, through their own actions, hav~
already determined that the grievor is not such an
employee by virtue of including him in the
bargaining unit in September, 1985; and
b) a determination of this .issue would, i'n effect,'be
an.infringement on the exclusive, authority of the
T.ribunal to determine whether or not. someone is in
the bargaining unit.
InsOfar as the on.ly basis put fort~ by.the 'employer to
.justify the grievor's unclassified status has failed, it
follows that the grievor is' declared to have been
improperly appointed to the unclassified service as of
September 13, 1986.
13
Although the point was not argued at the hearing of the case
before us, in his letter to the Board of October 25, 1991, counsel
for the Union, relying on the O'~reza case,-stated:
In the O'Breza case, the Board.held that the employer was
not entitled to rely upon Group 1(1) (sic) because the
grievor had also been appointed to the bargaining unit.
That situation applies in the case at hand. Mr. Melisek
was appointed to the bargaining unit. Therefore he
cannot be said to have been appointed to a project of a
non-recurring kind.
Counsel for the Union concluded, in his said letter:
Finally, I would remin~ the Board of the ruling in the
~ decision that one panel of the Board ought to
follow the decisions .of an earlier panel unless such'
earlier decision can be said to be manifestly in error
and exceptional circumstances exist.
Based on the finding of the Board in. the O'Bre~& case, we must
accept the finding of the panel qf the BOard in that case that the
employer had placed the grievor into the bargaining unit. The
panel of the Board did not make a finding' of fact tha% the grievor
was a member of the bargaining unit because he was an employee who
was employed on a project of a non-recurring kind. Rather, the
panel concluded, at p.6, that: "... it [was] not necessary to
determine on the facts of this case whether or not the grievor was
working on a project of a non-recurring kind for the following
reasons: ~
a) the parties, through their own actions, have already
determined that the grievor is not such an employee by virtue
of including him in the bargaining unit in September, 1985;
and
b) a determination of this issue would, in effect, be an
14
infringement on the exclusive authority of the Tribunal to
determine whether or not someone.is in the'bargaining unit.
We would not regard the O'Breza case as being 'mani£'estly in
error or that any special, circumstances existed for refusing to '
follow it as we are required to d0~by Blake. However, -'at"the
hearing of this case, where we heard evidence and argument, it was
not submitted by counsel for t'he Union that the .Employer, had,
through its own action~, already.determined that the Grievo~ w~s
not an employee working on a.project of a non-recurrin% kind, as
was the case in O'Breza.. That argument ~as first'raised after the
hearing when counsel for the union submitted the O'Drez~ case .to
us, along with his written 'argument. There has never been any
'agreement by the Employer that the Grievor was a member of the
bargainin~ unit, and.. hence not working ~p a project. .. of a non-
recurring'kind. Its position taken at the hearing,'.'and strenuously
argued,.was that the Grievor was Working on a project of a non-
recurring kind'. Because th& O,Breza ca~e was not raised until after
the formal hearing, we have had no conclusive evidence-concerning
whether the Employe~' had placed 'the Grievor in the bargaining unit.
The position of the Union, ·taken. subsequent to the hearing,
was.that in the box contained at the top right-hand co~ner of the
forms of appointment, purportedly to a Group 1 position, ~here is
an X in the box identified as "bargaining unit," and this must be
taken to mean .that the Employer had placed the Griev~'r in the
bargaining uni~..As there has been no admission, as there was in
the case of O'Breza, the ~question of whether the Grievor was "put
into the bargaining unit" remains unclear. Before deciding whether
the Employer had placed the Grievor into the bargaining unit, we
should, at least, give the parties an opportunity of presenting
furthe~ evidence on this point. At this time, given the existence
of the boxes containing an X in the appointment contra~ts opposite
the words "bargaining unit", a question'of onus may arise which we
ought not to deal with ~ntil the hearinq is reconvened.
If, before then, the parties agree that the Grievor was made
part of the bargaining unit by the Employer, we would feel bound to
follow the O'~reza decision.
If there is no such agreement, there are two ~osgibilities for
dealing with the issue:
1. We could hear evidence and argument as to whether the Gri'evor
had been place in the bargaining unit at a reconven~d hearing.
2. The parties could choose to have the'question referred to the
Tribunal pursuant to s.40(1) of the Crow~ Employees CpLlective
~argai~ing Act.
In the absence of a finding that thelEmployer had placed the
Grievor in the bargaining unit, which, as we indicated, would cause
16
us to follow the O'Breza deci'sion, 'our decision, on the evidence
and argument presented at the hearing would· be as follows:
The posit'ion of the Union Was that .a project of a 'non-
recurring kind must refer to some undertaking which 'is time limited
and which ends on completion, such as a construction pr0'ject; the
creation of special .software to serve the needs of a ministry; or
the trainin9 of employees to carry out a newly~introduc~d program,
The E~plgyer argued-.that a job could be included in the'%erm
,...3"project!' and that-a, job3could be;."non-re~urring'' where it'could be
viewed &s. having.a~limited life.~. Counsel fOr the Empl6~e~ argued
~at~,the'~.job, of~Drill .CQre Library Geologist ~to which thA Grievor
had been 'appointed was non-recurring, initially,-'be6ause the
Gr~e~0~gs~.%9~occupy ,it~on!y until.~the return of..the incumbent,
'~'..~r.'~Donald.-~If~he job~could not,be,'~egaraed ~s a project, then
'i. th~ ~mp.lo'yer ~woul'd have.~to,~have advertised it pursuant article 4 of
Coliec%fveS'~re~ent... even if it was non-recurring.. Such an
'interpr~t~'ti0n'._w~ s~i~-by counsel for the Employer;to be patently
unreas0nable]'~ and ~hat..~the part. ieS baa never regarOed such an
appointment as being othe~ .th~n 'a'project of a non-recurring kind.
If it couid not be so r.e~arded, then the Grievor, who was workin~
the same number of hours-a~ Mr. Donald, could, not have been
appointed to Group 2(i) nor to group 2(ii). Nor could the Orievor
have Been appointed~ to Group 3, his appointment not b~ing o~ a
seasomal basis.
17
Counsel for the Union took the position that the words "on a
project of a non-recurring kind" were clear and as the Board's
jurisprudence indicated that to be appointed to the u~classified
service an employee would have to fit within the language of
section 6 of Regulation 881/89, the Grievor must be found to have
been improperly appointed.
At this hearing, the recent caselof (Parr~), 273/91 (Low),
wh%ch is .dated on the same date as the hearing of this case, was
brought to our attention. In that case~the Board had to deal with
an argument made .by the union thatl section 6(1){d), of the
Regulation was inconsistent with section 8 of the Act, and was
therefore ~ltra vires and not enforceable. (At p.5.). In the
case ~ the Board stated:
In support of this contention, the union.relies on the
decision in Beresford, a decision of Arbitrator Mitchnick
~t4~9/86), judicially reviewed and affirmed by the
Divisional Court on December 6, 1988, and its progeny,
~i~iey, (1972/87) and Bressette (1682/87). It is urged
' before this Board that Beresford .stood for the
proposition that an appointment to the unclassified
service pursuant to section 8 'of the ~ublic Servige
imported a connotation of temporariness in the position,
and that accordingly section 8 of the Public Service Act
must be read not only in conjunction with section 6 of
the Regulation which defines it, but further with the
gloss that there must be an el'ement of temporariness to
any section 8 appointment in order to be properly made.
As noted, unlike the Board in the Parry case, we do not have
to deal with the application of section 6(1)(d) of the Regulations
and whether it must be read as relating only to cases having "an
element of temporariness." We have already d~sposed of the
18
arg.ument relating to the application of section 6(1)(a)(iv) of the
Regulations and ou~ remaining obligation is to deal with the
possible apptication~of, section
'
As noted at p.7. Of pa~:
Beres~ord-decided that'.the' ~power of the MiniSter to
appoint pursuant to section 8 of the unclassified service
was limited to appointments to the positions described in
Groups 1, 2 or 3~of section 6 of the Regulation, and if
the.employee was performing a job or holding'a position
which did not fall within one of'those groups, then the
appointment to the .unclassified servic~ was not
authorized by section 8 of the Act,.and was therefore an
improper appointment.
There 'is n~6thing. in
above noted finding' in Ber~ford. Further at p.9 of ~ the
' " Board stated":
· It seems~ to be common.ground 'that an appointment made by
.the Minister under section 8 of the'Statute c~n only be
'~ properly'made pro,vid~d that. ft is-also'in"6ompliance with
~:~ "' " "section 6. of the. Regulation sin~e nowhere else is there
-' ~ d~finition of "unclassified service", "The issue then
" is whether section 6(1)(d) of' the Regulation is
contradictory to or inconsistent wifh section 8 of the
Statute. As we cons%rue the proyisions of section 8 of
~ 'the Statute, there is no circumscription' of the power to
appoint to the unclassified service except ~hat:
(a) the first appointment must be for a period of
le~s than a year; and..
(b) the "unclassified service", is defined by the
-" -Regulation. ..
· ' In the case before us we are not concerned with
"temporariness" in the way the Board was in .Parry. That is,
whether,there is implicit in section 8' of .~he Public S. ervice_Act a
requirement that' an appointment to the unclassified sevice must
bare an element of temporariness, We are limited to a' consideration
19
of whether the contracts to which the Grievor was appointed
represented employment "on a project of a non-recurring kind."
There is explicit in that provision an element of "temporariness."
The limits that can be applied to the meaning of "project of
a non-recurring kind" remains undefined in the cases. In Wagner
351/B9, 352/89 (E. K. Slone), there was a suggestion by counsel for
tke employer that the part-time position in question was a "project
of a recurring kind, within Group 2." At paqe 12 - 13. the Board
stated:
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 f~lled with an appointment
to the unclassified service, and the whole category of
Regular Part-Time Civil Servants as recognized by Part C
of the Collective Agreement could be dispensed with at
the whim of the Employer. The rights of part-timers
gained through the negotiation'process should not be so
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 job'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 was
employed in a job; she was not hired to undertake a
"project". Even if it was a project, can it·be said to
have been "recurring"? This concept implies so~ethin9
that stops and later begins again, according to a pattern
that may or may not be predictable. This "project" was
continuous, and clearly the limitation of "for fewer than
twelve consecutive months" has not been m~t. The Grievor
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 employed for more than twelve
consecutive months. The Employer cannot bring itself
within the less-than-twelve-month· limitation merely by
giving a series of short contracts.
In interpreting the meaninq of section 6(1)(a)(i) of
Regulation 881/89, what aids are there available to us to interpret
2O
language which, 'if it is not ambiguous, is certainly less than
clear. There was no suggestion that the promulgation of the
subject, rule was ultra v~res. .~It is well established that an
otherwise valid regulation o~gh% to be interpreted using the same
aids to interpretation as would apply in the case of the paLrent
statute...See Driedger, Th~ Construction of Statutes (1974),
Given the ambiguous, or at least .unclear, nature o~f the words
"on a project of a no~grecurring kind" how Ought' the Board to view
them?~? In Driedger,'~o_p_= ~, at p.66-?', the learned author stated:
If-~ the meaning, is clear, the. consequences of the
.... appl i'cat ion of the -words to specific facts are
', immater, ial.. Yet, in reading a statute one cannot help
thinkin9 about the practical application of the statute.
Thus~ in E~co~gB~ Ploper¢ie~ Ltd. ~9'. ",InLand ..Revenue
~' ~' [~ Commism~_one~rs-Lo~d Dennin9 said that in understanding a
statute he considered Specific instanc~.s. And in
considering consequences'a judge may well be "startled".
But. the difference -between' the'.~.atti~'udes of . Lord
"~ ......."~'Blackbur~ and Lo.rdgReid is this: if-Lord Blackburn could
~" ¥' not believe that the..legistature-,meant what it said, he-
': ' ' was. de~termined ~o change .it ,by putt. ina aL-''cOnsiderable
' .s't~ain" 'on the. language; whereas. Lord Reid would take
another look ands. see if the legislature actually said
· ~ what i'~ appears to have said. Only ~when there is an
ambiguity, 9bscurity or inconsistency ·that,. cannot ~e
resolved by objective standards is it permissible to
'resort to subject, ive standards of reasonableness in order
to avoid u,nreasonable consequences . In these
-circumstances con~'~quences ma.y legitimately be regarded
in making a choic~e between two reasonable alternatives;
but' it is-not legitimate, to use 'consequences as an excuse
" to place an unreasonable construction on words that can
have only one reasonable grammatical construction.
(Footnotes omitted.)
In AltriDcham Electric Supply Limited v, Sale ~rban District
Council (i936), 154 L.T. 379, referred~t0.in Driedger op. cit~ at
2£
p.43, t~e principle was reiterated, at p.388:
· .. if the language of an enactment is ambiguous
and susceptible of two meanings, one of which is
consonant with justice.and good sense while the
other would lead to extravagant results, a court of
law will i~cli~e to a~opt the former and to reject
the latter, even although the latter may correspond
more closely with the literal reading.of the words
employed ... A ~ourt may construe the language of
an Act of Parliament but may not distort it to make
it accord with what the court thinks to be
reasonable.
Counsel for the Union included in'his 6ook of cases, Public
S~rvice Alliance of Canada v. Her Majesty the Queen represented by
~he A_tto~neY General of Canada and Econosu/t Inc., judgment
rendered March 21, 1991. In that case, Sopinka J., at p.13, for
the majority, cited with approval the'~reasons for judgemen~ of
Beetz J., and U~E.S., Local 298 v. Bib~aul~, f1988] 2 S.C.R. 1048~
In determining whether there has been a s~mple error in
interpret~n9 a provision conferring or limiting
jurisdiction, as in determining whether jurisdiction has
been exceeded by a patently unreasonable error, a
pragmatic, f~n~tional approach must be adopted. This
emerges from the following statement of Beetz J. in
Bibeau/t:
At ~his stage, th~ CQtlrt exami~e~ not only th~
wor~in9 of %be enactment conferring jurisdiction on
the administrative tribunal, but ~e purpQse of the
statute creatiBg the tribunal, .the reason for its
~×~stence. the area of expertise of its members and
~h~ nature of the problem, before the tribunal. At
this initial stage a pragmatic or functional
analysis is just as suited to a case in which an
error is alleged in the interpretation of a
provision limiting the administratiue tribunal's
jurisdiction: in a case where a patently
unreasonable error is alleged on a question within
the jurisdiction of the tribunal, as in a case
where simple error is alleged regarding a provision
limiting that jurisdiction., the first step involves
22
determining'.the 'tribunai's jurisdiction.
[Emphasis added in the original.].._[At pp. 1088-89.1
Where the language of the enactment in .using the words
"project" and "non-recurring" are not only undefined but unclear
and ambiguous the~e is also sense in taking a ..pragmatic and
functional approach to int'~rpr~ting the language, .Qhich is merely
another way 0f regarding what D~iedger conclud&d'to be the proper
role of a trier in similar circumstances.' ' '
A restrictive view' of the language would result in the
Employer, in endeav6uring to fill a position o~ apparent~ limited
duration being required to pose. it-pursuan~t ~o articl'e 4 of the
. collective~agreement~ For obvious reasons the parties ~ava never
regarded- this 'to be the' proper inter.pret~i~n 'and~ have always
.. treated ."project" in. such. a circumstance as being the equivalent of
job. "Non-recurring" was'understood to cover a s~t~ation 'w~ere
there was a reasonable e~pectat~on'that~he ~ncumbent would ~return
to his classified position, occupied, in his absence by an
unclassified appointee, "
How does the situation change when it becomes apparent that
'the incumbent will not be returning to his posftion? It is
significant that in Wagner, at p.13, the boar'd observed that the
employer need not be prescient.' When the Grievor was appointed to
replace Mr. Donald, while the latter was on assignment, it could
'not have been known that the job was going t~ be as "permanent as
it was". At p.13 of Wagner the Board ~tated:
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
app6intment under sections 6 and 7 of the Public Service
~_~. This may eot have been the case when Welcome House
opened, because it is possible that the Employer may not
have known that the job was going to be as permanent as
it was. But if not right 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 tn time, it came
under an obligation to post the position under the
provisions of either Article 4 or Article 60 of the
Collective Agreement.
If the Employer was not seriously considering doing away with
the position when it became apparent that Mr. Donald would not be
returning, this would be a .case where '~the Employer ought to have
concluded that the job 'was not one ,to which an unclassified
employee could continue to be appointed." At that point in time it
would not be possible to regard the position as a non-recurring
one. However, the evidence of Mr. 5ennett, which was not seriously
challenged, was that even prior to the'i time when Mr. Donald was
expected to.return to the position in Sault Ste. Marie, the future
status of the position was very much in doubt. That i~, based on
the Employer's bong fid~ assessment of the job, it was not possible
to know that it wouid continue as a,recurring job. In The
circumstances, at the time of the Grievor's final appointment the
job would have to be regarded as a "pr,~ject of a non-recurring
kind."
This is not to say that the Employer can bring itself within
24
the meaning of section 6(1)(a')('i) by calling the job a "project of
a non-recqrring kind."- The Employer must make its~de¢ision' in good
faith and not as a subterfuge to.avoid having to post the position.
This is not such a case .as in Beresfard 1429/86 (~itchnick), where
the board, at po14, noted that:
... all of the evidenCe we have as to the temporal~ nature
of the position points to the contrary of it being 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 service under section 8
to fall within one of .the categories set out 'in the
. Regulations. Counsel for the Employer, in light ~of the
fact that no evidence of the·Employer's intentions or
perceptions with respect to the Grievor's position was
ealled, urged the Board ~0. assume the. l~mited-term
appointment wOuld not have been made without the kihd of
"goo~ reason" which~section 6 of ~the Regulati.ons itself
sets out.
We are not prepared to"'~do"'that. 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 any of the various situations encompassed by the
--~'~ ~ three groups set. oU~ in the Regulations, and is
contemplated by section 8 of the Public Service ~ct. ,..
~ ~ (Emphasis in the original.)
In ~nio~Gricvanqe, 1480/89 etc. '{Kaplan), the Union a.rgument
is noted at p.8: ",...that, the evidence'established the existence
Of ongoing· permanent positions with respect to [the grievors]. - In
counsel's view, if there is an ongoing position it automatically
falls within the scope, of the classified service .... " On the
fagts of the case before us there was evidence to indicate a
· ~fide decision based on existing facts that the position could not
'be regarded as an on-going permanent position. Further, at p.8 of
Union ~rievance, the Board stated, in referring to the-~nion's
25
argument: "Very simply, in counsel's submission, if there is an
oDgoing position, it is a classified position. If a vacancy
occurs, it must be filled by a posting." There are many reasons
for not regarding a position as an on-going one beyond the examples
frequently given, as in Union Grievance (at p.8): "For example, a
work bubble exists and additional staff are engaged."
At page 16 of Union Grievance, the Board noted, in dealing
with the position occupied by one of the grievors that: "... the
Employer did 'not call any evidence convincingly demonstrating that
this position was a temporary one. The~fact that the position had
been performed for approximately six years was further evidence of
its ongoing and permanent nature."
As long as the Employer had a bona fide belief t.hat Mr. Donald
would be returning to his position it would not be possible to
regard the job beinq carried out by the Grievor as being onqoinq.
This is not a case where article 6.6.1 would apply:
6.6.1 Where an employee isiassigned temporarily to a
position, Article 4 (Posting and Filling of
Vacancies or New Positions) shall not apply
except where:
(i) the term of a temporary assignment is
greater than six (6) months' duration,
and
{ii) the specific dates of the term are
established at least two (2) months in
advance of the commencement of the
temporary assignment.
There was no evidence to disclose that art. 6.6.1 (ii) had been
complied with so as to require the posting amd fillin~ of vacancies -
pursuant to article 4.
Prior to the Employer's learning that Mr. Donald would not be
returning, the permanency of the position occupied by the Grievor
was cast in doubt. ..There being n6~'evidence· that this was a mere
subterfuge, it is difficult to see'why the status'of the position .
ought to be view.ed differently. This· was not a case'where the.
Grievor had been working along with other employees who were
members of the classified service performing essentially·the same
work u~der the same conditions and for the same number of hours
over a significant period of time. While the Board could· find that
the Employer.ought to have known, at some point in time, that the.
position Qas, indeed, permanent, and that·it ought to be posted ~o
as to alter the conclusion arrived at in this case, on the evidence
we are unable to find that that realization ought 'to have been
reached pri~r to the Grievor's last appointment. The Employer
ought to have some reasonable period of ti~e..in order to assess the
future of the position in relation to its needs and we cannot find
that a decision that the position ought to be considered permanent '
should have been reached prior to the time that the Employer made
its decision.
Accordingly·, for all of the above reasons, in the absence of
success 'on the argument based on the O'Breza d~cision, the
grievance would be dismissed.
Dated at Toronto thisg~ day of April, 1992.
M. GorskY - viCe CSairperson
M.'Lyons - Member
April 29, 1992
ADDF. NDUM ~
RE: 1434/89 ' OPSEU (Melisek) and.the Crown in Right of Ontario
(MinistrY of Northern Development and Mines)
This member is in agreement with the award, in this case.
However, although the argument-of the parties did not
refer to Group 4 of the Regulation on the date of the hearing on
October' 16, 1991, (see page 8 of the award) it is important to note
that in his written submissions to. the Board. (October .22,
1991, lines 8 and 9), counsel for the Employer did reference
applicability of Group 4 of t/~e Regulations to substantiate the
proper appointment of Melisek to the unclassified service.
Accordingly, this Member is of. the opinion .that GSB cases
Parry (237/91) and Porter (428/90 etc.) are applicable to this
subject Melisek case.
F. ~ ember