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HomeMy WebLinkAbout1990-1144.Everingham.91-09-23 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 OUNDAS STRt:E:T WEST, surTt: 2100, TORONTO. ONTAAfO. MSG tZ8 TELEPHONE/TELEPHONE: (416) 326-1388 180, RUt: DUNDAS OUEST, BUREAU 2100, TORONTO [ONTARIO). MSG lZ8 FACSIMILE fT~LÉCOPIE' (416) 326-1396 1144/90 I I IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT . Before THE GRIEVANCE SETTLEMENT BOARD BETWEBN OPSEU (Everingham) Grievor . - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: B. Kirkwood Vice-Chairperson M. vorster Member D. Daugharty Member FOR THE M. Hart GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR THB J. smith EMPLOYER Counsel Legal Services Branch Ministry of Community & Social services HEARING May 23, 1991 I Page 2 DECISION In 1977 the grievor was hired on an individual employment contract by the Ministry of Co:nmunity and Social Services in th~ Family Benefits Office at Chatham. She was part of the unclassified staff. She re~igned in November 1978 to have a child, but subsequently obtained a new contract on September 9, 1980, which terminated on June 1,1981. Commencing September 1, 1981, the grievor was . employed by the Ministry on a SE~r ies of contracts each of which were renewed upon their expiry, until her contract was terminated on August 17, 1991. Init ially, the grievor worked as a part-time stenographer in the unclassified staff. From April 30, 1983, the grievor worked as a Field Worker 1, which was subsequently reclassified as a Field Worker 2. Her work as a member of the unclassifi.ed service was essentially the same as the work of the classified staff in her office. On June 21, 1990, the grievor was advised by the Ministry, that due to budget constraints, no more funds were available to finance her position and therefore the Ministry was terminating her contract. The griever received eight weeks notice and fifteen weeks severance pay, which was the standard set out in the Employment Standëlrds Act, R.S,O. 1980. c. 137 as amended. The grievor obtained a further contract position on October 1, 1990. However she resigned from this position on December 28, 1990 to work with another employer on a full- time basis. The rights of the classified and unclassified staff are founded in the Public Service Act: R.S,O. 1980 c. 418, the Crown Employees Collective Bargaining Act R.S.O. ~ " '. ~~\ . , (',\; Page 3 1980 c. 180, as amended and the parties' collective agreement. Regulation 881 of the Public Service Act, defines the uncrlassified service as consisting of employees on individual contracts whose work fits certain criteria. Pursuant to section 8 of the Public Service Act, persons are appointed to the unclassified service of the public service by a minister or his designee. Regulation 881 states: . 1. (1) The u is divided into, ( a) Group 1, consisting of employees who are emp loyed, (i) on a project of a non-recurring kind, (ii) in a professional or other special capacity, (iii) on a (iv) for fewer than fourteen hours per week or fewer than nine full days in four consecutive weeks or on an irregular or on-call basis, ¡ (v) during their regular school, college or university vacation period or under a co-operative educational training program; (b) Group 2, consisting of employees who are employed on a project of a recurring kind, (i) for fewer than twelve consecutive months and for fewer than, (A) 36 1/4 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 36 1/4 hours of work per week, (B) 40 hours per week where the position, if filled by a civil servant, would be I . . Page 4 -4. classified as a position requiring' 40 hours of work per weekr (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 40 hours per week. O. Reg. 24/86, 5 . 3 (I), part. (d) Group 4, consisting of employees, (i) who are appointed pursuant to section 8 of the Act, whether cr not· the duties performed by them are, or are similar to civil servants, and (ii) who are not employees that belong to Group 1, 2 or 3, O. Re'J. 24/86, s. 3(1), part.: 0, Reg. 129/89, s. 1. (2) REVOKED: O. Reg. 24/86, s. 3 (1) , part, The classified staff are members of the civil service appointed by the Civil Service Commission to the public service pursuant to section 6 of tf.\e Public Service Act to a vacant position. The collective agreement requires vacant positions to be posted and a competition held to obtain the best candidate. Both the classified and unclassified service are represented by the union, but the err,ployees in the unclassified service are provided only limited rights as set out in article 3 of the collective agreement. ö Article 3.1 states: I "",, '; ~~-\ I Page 5 ~ 3.1 The only terms of this Agreement that apply to employees who are not civil servants are those that are set out in this Article. The classified employees have much greater rights, The issue before this Board is to determine if the nature of the grievor's work. results in an improper appointment to the unclassified service, should the grievor be treated in the same manner as an employee performing the same tasks, but employed in the classified service. The Union's counsel claimed that the grievor ought to be treated as a classified employee during the period of her continuous employment, from September 1, 1981 to Augus.t 17, 1990 and receive the greater benefits of a classified employee. In addition Union's counsel claimed that the position ought to be posted and the grievor entitled to compete for the position. The Union's counsel argued that the grievor was improperly appointed to the unclassified staff as her work did not fall within the requirements of Regulation 881 to the Public Service Act as she was not working on a project, nor was her work of a special nature. The Unionts counsel argued that the grievor had been denied her rights under the collective agreement, as the grievor had worked in the same capacity and manner as a Field Worker in the classified service from September 1, 1981, but was considered an employee under contract in the unclassified service, and as such had fewer rights and benefits. The Union's counsel argued, that as the work was the same as the classified employee, the grievor must be treated as a classified employee. Union's counsel accepted the reasoning in the decision of OPSEU (Wagne r) and The Crown in Right of I . ' Page 6 .. On~ario (Ministry of Citizenship) G.S.B. #351/89, 352189 (Slone) that the power to appoint the grievor to a classified position must be according to t]:le PubliC'. Service Act. and the collective agreement. The Union accepted the argument that the Board could not appoint the grievor to the classified position retroactively, in the manner set out in the Public Service Act, and th4~ collect:i ve agreement as the collective agreement requires a vacant position in the classified service to be posted and a compl:!tition to be held to fill the vacancy. The Unionrs counsel argued howeve r , that the Board had broad remedial powers as confirmed in the decision of OPSEU(Berry) v. The Cro1wn in right of Ont.ario (Ministry of Communit.y and :30cia1 Services) G.S.B. 607/85 15 L.A.C. Reid J. Union's counsel argued that due to the nature of the grievor's work, the Board ought to exercise these powers and treat the grievor as a classified employee and award the grievor the benefits that a classified employee would have received from September 1981 to August 17, 1990. , The Ministry's counsel agreed that the grievor was not properly appointed to the unclassified service, but did not agree that the grievor was therefore part of the classified service. Ministry's counsel submitted that the grievor, as an improperly appointed unclassified employee, was only entitled to the notice and severance pay set out in section 40 of the Employment Standards A.::t , as ordered in OPSEU(Greco-Tarantino) v. The Cro1rorn in Right of Ontario (Ministry of Community and !;ocial Services) G.S,B. 405/89 (Samuels) . In addition to the proper notice and severance that the grievor had received, the Ministry was prepared to post the position if it were to become available, and to guarantee the grievor a right to an interview for the position. l "'.- 'ì '-I Page 7 I ~'. The Ministry's' counsel argued that this Board had no jurisdiction to order any further relief. Ministry's counsel relied on Wagner (supra) to conclude that -if the Board were to appoint the grievor to the classified position, the Board would be violating the collective agreement and the Public Service Act by not following the posting and competition procedures. Ministry's counsel argued that although Mr. Justice Callaghan in his judicial review of the Beresford/Milley and Greco-Tarantino cases stated that the Board may have the power to appoint a person to the classified service, this was not an appropriate remedy in this case. Although the grievor was employed pursuant to individual contracts her employment continued in the same fashion for approximately nine years. While it may not have been apparent from the first contract that the work did not fit the criteria set out in Regulation 881, at some point, the nature of the grievor's work, the focus of the work and the length of time that the grievor performed the same job as the Field workers in the classified service conflicted with the criteria set out in the Regulations. The work was not temporary nor was it a project of a non-recurring kind. There was no evidence that the grievor was employed in a professional or in any other special capacity nor met any of the other criteria set out in the Regulations. Accordingly, as the parties agreed, the nature of the grievor's work was not that of an unclassified employee, and she was improperly appointed to the unclassified service. We mus-t then consider whether an employee who is improperly appointed to the unclassified service automatically falls within the classified service. The Public Service Act and the collective agreement, only provided for two classes of employees. As Page 8 -"/- Vice-chairperson Samuels stated in OPSEU (Beresford/Milley) and The CJ:~own in Right of Ontario (Ministry of Revenue) G.S.B. * 1429/86, 1972/87 the statute and the parties did not contemplate a third category of employee, that of the improperly unclassified employee performing the functions of a classified employee. Arbitrator Samuels accepted this category as a third category that was neither ~~ fish nor fowlll. HE~ found that the statutory limitations governing the powers of appointment and the requirements in the collective agreement for the posting and competition for vacant positions prevented the Board from appointing the grievor to a classified position. The Divisional Court upheld Vice-chairperson Samuels' decision that the circumstances of the case .did not support the appointment of the grievor to the classified service, by finding that the decision was not patently unreasonable. However, at the same time, the Court accepted the proposition that the Grievance Settlement Board has the ultimate remedial power to appoint an employee to the classified service in the appropriate circumstances. The Divisional Court in the Beresford/Milley and Greco-Tarantino (supra) decision is cor:,s istent with the Divisional Court decision in OPSEU (BeJ:'ry) v. The Crown in Right of Ontario (Ministry of Comml.1ni ty and Social Services) (supra) . The Divisional Court applied the principle that if the grievor has a right that has been violated then there is a remedy that is applicable. It recognized that the Board's jurisdiction was unrestricted and remedial in bringing about a final and binding settlement of differences betwéen the parties. Therefore, although both the JI1inistry and the Union, in their arguments, accepted the principle that the Board could not appoint an unclassified employee to the classified service, the Divisional Court accepted that there I --.... 'I ',". " - 4 " Page 9 \ . ' '1\ t ~. may be situations where the Board ought to appoint an improperly classified employee to the classified service. However, each fact situation must be considered in relation to the circumstances surrounding the 'wrong. Vice-chairperson Slone in the Wagner (supra) decision pointed but that ~ critical deficiency in all cases - except where there has been a successful competition for a . vacancy is that the requirement for a competition for the position, creates no assurance that a particular grievor would win the competition and therefore be entitle'd to the job. The Wagner (supra) decision was not judicially reviewed. We view the Divisional Court's decision in ~eresford/Milley and Greco-Tarantino decision as going beyond the parameters set out in the Wagner (supra) decision. The Board must consider whether there was a "vacant" position, whether the grievor ought ~o have received the opportunity to apply for the position and whether on the balance of probabilities the grievor would have likely won the competition, in considering if an employee ought to be appointed to the classified service. If the Board were to determine that the grievor would have likely competed successfully in such a competition, the grievor has been , deprived of a right, suffered a loss that ought to be remedied. The power of this Board, altho~gh remedial; must be exercised cautiously, as it can depriv~ other members of the classified staff of the ability to compete for the position. ~ The numbers of years that the grievor's contract was· renewed is evidence that the grievor did perform the job we 11 , as the Ministry could have allowed any of the contracts to expire without incurring any.financial loss. In addition, the Ministry recognized that the grievor was a valuable employee in its evaluation reports on the grievor's performance, and recòmmended that the Ministry consider Page 10 ~ .~-l - '.-- ,i . placing her in the classified staff ' ' the permanent part- 1.n time complement. In light of the years experience that the grievor had and the comments on hE!r work performance, we find that on the balance of probabilities that the grievor if she had been offered the opportunity before t:he termination of this contract, she would have succeeded if the competition had been held at the time the grievance was filed. It will not however be necessary to decide at what point prior to the filing of the grievance that the appointment became improper or when the 9rievor would have been deemed to have obtained the position. The grievor sat back and enjoyed the benefits of the unclassified position as outlined in her employment contract, until she was advised of her termination. At no time until the filing of this grievance did the grievor institute any grievance contesting her status or seeking appointment to the classified service. A grievor who does not take advantage of her rights for nine years, induces the Ministry to believe that there has been no wrong. By claiming rectification of a wrong at this time, the Ministry who did not have notice of the violation until the filing of the grievance, detrimentally . relied upon the grievor's acquiescence to :~er circumstances. Therefore, we do not find tbat the remedy should be retroactive to an earlier time when the work performed tainted the continued appointment of the grievor to the unclassified service and the grievor ought to have been offered the opportunity to compete for the position. Furthermore, the parties have articulated a speedy process for the resolution of their differences, in article 27 of the collective agreement. Article 27.1 to 27.2.2 states: ; . ~ . - -' ': I" ,) Page 11 r~..),. 27.1 It is the intent of this Agreement to , adjust as quickly as possible any complaints. or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable. 27,2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20 ) days of first becoming aware of the complaint or difference. 27.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7 ) days of the discussion, it may be processed within and additional ten (10) days in the following manner:... The purpose of time limitations in processing a grievance in a collective agreement is to prevent a party from being prejudiced by the inaction of the other party. For us to find that at any particular time in her employment, up to the twenty-seven days preceding the filing of a grievance, that the grievor ought to have been considered a classified employee would be overlooking the intentions of the parties and would be sidestepping the grievance procedure. We find in the circumstances of this case, that the date of the filing of the grievance is the appropriate date for determining the status of the grievor. We must therefore consider the grievor's position at the time of the filing of the grievance. In the Wagner (supra) decision, Vice-Chairperson Slone considered that if the contract were rescinded and the parties were placed in the situation as if there had been no wrong committed, the Ministry would have had a position, which with hindsight ought to have been a classified position, and the position would have had to have been posted , \\ · ' Page 12 · · 1 and the grievor would have been entitled -:0 compete for it. Similarly as the parties agreed that the grievor was improperly appointed to the unclassified service, if this grievor's classification is to be remedied then the grievor ought to be put, in the position that she could compete for a position in the classified service. Unfortunately unlike the Wagner (supra) situation, where the position was to cont inue, in the case before this Board, the lack of funding resulted in the elimination of this position. There was no evidence of any bad faith by the . Ministry that leads US to order the Ministry to post a position that it had to eliminate due to a lack of funding. However, if a vacancy for the position arises, the grievor is to be entitled to apply for the position. However, we do not find that this right ought to exist in perpetuity. We find that in the event that the Ministry were to have a vacancy in the classified service within a year of the issuance of this decision, the grievor is to be entitled to compete for the position. In conclusion, we find that as of the date of the filing of the grievance, the grievor is to be appointed to the classified service in the part-time complement. Due to the elimination of the position, the grievor is to have the right to compete for the position if it is recreated within a year of the issuance of this decision. The grievor has received notice and severance pay as set out in the Employment Standards Act. As the grievor will be a classified employee on her termination, if the compensation that she were to receive is greater than that provided under the Employment S1~andards , she is entitled to the greater amount. I · f:; Page 13 , . ~ ';;' [) We will remain seized in the event there is any difficulty in the implementation of this decision. AS in wagner (supra) the competition will be considered as an extension of this decision and we will remain seized in the event that there are any allegations of impropriety. Dated at Toronto, this 23"'dayof September ~ 9 91 . /4 B. A. Kirkwood, Vice-Chairperson ~Ò)~ Menna Varster, Union Member 15l II ~t/ ,--/ I~', ~ David Daugherty, Employer Member I'