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HomeMy WebLinkAbout1990-1286.Thomas.91-12-12 -. ~~h ~ ONTARIO EMPL0 yts DE LA COURONNE . C~OWN EMPLOYEES DE L 'ONTARIO _ _ GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO, M50 lZ8 TELEPI-IONE IT~LEPHONE (416) 326- 1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M50 rZ8 FACSIMilE ITELECOPfE 14161326-1396 1286/90 IN THB MATTBR OP AN ARBITRATION Under THE CRO" BHPLOYBES COLLECTIVE BARGAINING ACT Before THB GRIEVANCB SETTLEMENT BOARD BETWEEN OPSEU (Thomas) Grievor - aneS - The Crown in Riqht of Ontario (Ministry of the solicitor General) Imployer BEPORE R. Verity Vice-Chairperson p Klym Member A Stapleton Member POR THE A Ryder GRIEVOR Counsel Ryder, Whitaker, Wriqht & Chapman Barristers & Solicitors FOR THE S. McDermott EMPLOYER Counsel HiCkS, Morley, Hamilton, stewart, storie Barristers & Solicitors HEARING May 14, 1991 . ... I -, ~. D Bel S ION In this case, Noel Thomas had been considered an "unclassified" employee working under a term contract Mr Thomas alleges that he was "dismissed" effecti VE~ July 13, 1990 without just cause pursuant to s 18(2}(c} of the Crown Employees Collective Barqaininq Act The grievor commenced work with the Ministry in September, 1988 in the Financial and Administrative Services Branch as Accountable Advance Clerk to assist with the introduction of a new accounts' processing system He was then .3. Go-Temp employee. The grievorts duties consisted of coding expense claims and data entry into the computer from input sheets According to Irene Dziedzic, Manager of the Department, there were twc classified Accountable Advance Clerks and in view of the fact that there was no vacancy, the grievorts "ad hoc position" was crt:a ted "to clear-up the backlog until work could be assimilated into the unit" It was anticipated that the work would last two to three months According to Supervisor Arlette Isaac, she told the grievor that his job would be for a few months However, there were problems with the phasing in of the new system and the phasing out of the old system together with the resignation of a unit group leader, department absenteeism, the disruption of work flow, all of which compounded the backlog .. ; 3 problem On July 4, 1989, Mr Thomas was appointed to the unclassified service under a term contract which was to expire on March 30, 1990 ~ Under the term contract, the grievor's job was Itto provide data entry" duties The Ministry evidence was to the effect that the work that the grievor performed was to be assimilated by classified staff when the new system became operational and the backlog had been reduced or cleared up The grievor1s term contract was not renewed However, through inadvertence, the Ministry overlooked the termination date of Mr Thomas' contract and as a result he continued working Michael Mitchell became Branch Director on April 1, 1990 After reviewing the financial position, he concluded that there was not enough salary dollars to employ the existing staff complement Mr Mitchell testified that the only viable option was Itto terminatelt three unclassified employees, including the grievor Management then realized that the grievor's contract had expired on March 30, 1990 The evidence established that the grievor was told that lack of funds caused the termination of his employment The grievor's supervisor, Arlette Isaac, advised Mr Thomas in a memorandum dated June 28, 1990 that his Itcontact expires effective July 13, 1990" The grievor testified that on some unspecified date, after . 4 March 30, 1990, he spoke with supervisor Isaac and advised her that his contract !twas upl1 and in turn was advisied "to keep on working'"' However, in cross-examination, the grievor refused to comment when told that Mrs Isaac's testimony would be to the effect that no such discussion took place Mrs Isaac testified that she had no discussion with the grievor concerning his term contract in or around March of 1990 The grievor made a number of additional statements which appear to be in conflict with the evidence of management For example, the grievor maintains that he was led to believe that his position would become permanent Both Miss Dziedzic and Mrs Isaac testified to the contrary When challenged in cross-examination I the grievor's consistent reply was that he I could not remember or he stated !tno commentl1 On the evidence adduced, we are satisfied that the testimony of Mrs Isaac is the more credible account of what transpired and is consistent with management's inaction in either terminating the grievorfs employment or renewing his contract after the expiry date of March 30. Similarly, we have no dif:ficulty accepting Miss Dziedzic as a thoroughly credible witness The evidence established that following the grievor's departure in July, 1990 his work was assimilated by existing classified clerks and that there was no posting of his "position" - /", . 5 The parties submitted extensive written briefs in support of their respective positions Counsel's submissions can be briefly summarized I The Union acknowledged that a backlog was an appropriate use I for an unclassified appointment However, Mr Ryder's submission was that as early as December, 1988 the Employer should have recognized that there was no limited term basis for the grievor's position In particular, when the appointment was made to the unclassified staff in July 1989, his job was of indefinite duration and ought to have been filled by way of classified appointment In essence, the Union argued that the grievor was improperly assigned to the unclassified service in July 1989 The thrust of Mr Ryder's argument was to the effect that the facts of this case supported the finding of a Beresford use of an unclassified position Mr Ryder submitted an extensive brief Uwith respect to Beresford type grievors" including claims for remedial relief. The Union referred the panel to the following authorities: OPSEU (L. Beresford) and Ministry of Government Services 1429/86 (Mitchnick); OPSEU (C. Milley) and Ministry of Revenue 1972/87 (Mitchnick}i The Ontario Divisional Court Judgment in the Judicial Review of the Beresford and Milley Decisions (December 6, 1988)j OPSEU (Bressette et aU and Ministry of Natural Resources 1682/87 (Wilson) j OPSEU (Union Grievance) and Ministry of Natural Resources 1480/89, 1481/89,1482/89 (Kaplan): OPSEU (Beresford/Milley) and Ministry of Revenue 1429/86, 1972/87 (Samuels): OPSEU (Waqner) and Ministry of '\ 6 Citizenship 351/89, 352/89 ( Slone) I OPSEU (Lethbridqe et all and Ministrv of Health 1739/90, 1740/90, 17~,1/90 (Samuels); Public Service Alliance of Canada v. Her Maiestv The Queen Represented by the Attorney General of Canada and Econosult Inc. Judgment, Supreme Court of Canada (May 22, 1991), OPSEU (Wei Fu) and Ministry of Citizenship 1115/86 (Wilson) ; and OPSEU (Canete) and Ministry of Financial Institutions 2192/90 (Simmons) The Employer maintained that the evidence supported a bona fide release from employment under s 22(4) of the Public Service Act Ms. McDermott contended that the f,3.ct that the grievor's contract had already expired did not alter the nature or result of the grievance in view of the Union's submission that it did not rely on the March 30 termination date as affecting the merits of this grievance On the Beresford argument, the Employer argued that the grievor was properly appointed to the unclassified position under the Public Service Act and Regulation 881 under that Act, and that despite the miscalculation i~ time to clear up the backlog, the position remained temporary and of a definite nature Ms McDermott referred the panel to Article 3 15 of the collective agreement, a new provision, although not then in force, to support the contention that the parties have agreed that an unclassified position need only be posted after "a period of at least two ( 2 ) consecutive years" In addition to the authorities cited by the Union, the Employer referred the panel to OPSEU (Leslie) and Ministry of Community and Social Services 80/77 (Adams) and OPSEU I J~ 7 (Branch) and Ministry of Transportation 314/89 (Gorsky) For the Union to succeed, it must establish that what occurred to Noel Thomas in this case constituted a ~dismissal" The Public Service Act contemplates two categories of employees - "classified" employees appointed under ss 6 and 7 of the Public Service Act "where a vacancy exists in the classified service" and "unclassified" employees subject to term appointments under ss 8 and 9 of the Act Those sections read as follows 6. - (l) 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 Commission shall appoint the person nominated under subsection (l) to a position on the probationary staff of the classified service for not more than one year at a time R.S.O 1980, c 418, s 6 - 7. The Commission shall, if requested in writing by the deputy minister, recommend to the Lieutenant Governor in Council the appointment of a person on the probationary staff of the classified seI;vice to the regular staff of the classified service, and the recommendation shall be accompanied by the certificate of qualification and assignment of the Commission. R.S.Q 1980, c. 418, s.7 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 (2) Any appointment made by a designee under subsection (1) shall be deemed to have been made by his minister R.S 0 1980, c. 418, s 8. 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 ~ 0 1980, c 418, s 9 It is also important to set out s 6 of Regulation 881 under the Public Service Act which reads as follows 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 1, 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 temporary work ass".gnment arranged by the commission in accordance with its program for providing temporary help, (iv) for fewer than fourteen hours per week or fewer than nine full days in four consecutive weeks or on an irregular or on-call basis (v) during their regular school, college or university vacation period or under a co- operative educational training program, Cb} 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, (a) 40 hours per week where the position, if filled by a civil servant, would be class if ied as a p,os i tion requiring 40 hours of work per week, (ii) for fewer than eight consecutive weeks per i~ 9 - 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, (d) Group 4, consisting of employees, ( i) who are appointed pursuant to section 8 of the Act, whether or not the duties performed by them are, or are similar to, duties performed by civil servants, and (ii) who are not employees that belong to Group 1, 2 or 3 0 Reg 24/86 s. 3(1}, part, 0 Reg 129/89, s 1. ( 2 ) REVOKED 0 Reg 24/86, s 3 ( I ) , part (:3) No person who occupies a position in the classified service shall be employed in the unclassified service, except with the approval of the commission ( 4 ) No person employed in the unclassified service shall supervise the work of persons employed in the classified service, except with the approval of the Commission R R 0 1980, Reg 8 81 ,5 . 6 (3,4) ( 5) , ( 6 ) REVOKED: O. Reg. 24/86, s. 3(2). ( 7 ) Nothing in sections 7 to 61 applies to an employee appointed to Group 1 of the unclassified service R R O. 1980, Reg 88l, s 6(7) Grievance Settlement Board Vice-Chairperson Mitchnick, as he then was, made the following comments on s 8 of the Public Service Act in the Beresford case at p 14 The section is in fact curiously worded, to the extent that it does raise the question why the Legislature would limit the . term of the initial appointment to one year, but then go on to permit any extension of that term on an indefinite basis. The ---- ---- ...-- y 10 wording would, therefore, tend to support Mr Ryder1s argument that, in order to fall within the contemplation of the Legislature as to what constitutes a "proper" appointment on a limited-term basis, there must be something about the job in its initial conception which distinguishes it from the normal "permanent" position in the classified service Mr Mitchnick then proceeded to find that Linda Beresford's appointment to the unclassified service was improper because it was not encompassed by any of the then three groups in the unclassified service as set out in s. 6 of Regulation 881 Since the Beresford Decision, Regulation 881 under the Public Service Act has been amended to include a fourth group In the instant matter, the dispute appears to focus on the length of time the grievor was employed ,:is Accountable Advance Clerk both as a Go-Temp employee and under the one limited term appointment Clearly, the Employer seriously miscalculated the time frame during which the grievor would bl~ required to clear the backlog and to assist with the operational requirements of the new accounts processing system There were a number of factors within the department that contributed to the delay in making the new system operational The fact remains, however, that the need for the grievor's position was of a temporary nature and would end when the new accounts processing system was opera'tional. Simply stated, it was never intended to be an ongoing position within this Ministry In our opinion, this is not the Beresford type of case (~ '; II We are satisfied that the grievor's appointment to the unclassified service as specified in the term contract and effective July 4, 1989 was properly under Section 8 of the Public Service Act as contemplaced in Group 4 of Regulation 881 Under s 9 of the Public S~rvice Act the grievor' s term appointment ended on March 30, 1990 Technically, on that date the grievor ceased to be a public servant In fact, however, the Ministry t s oversight resulted in the grievor t s continued employment until July 13, 1990 In the particular circumstances of this case it simply cannot be said that the grievor was "dismissedtl as alleged in the grievance. In the result, this grievance must be dismissed DATED at Brantford, Ontario, this 12th day of December 1991 , \--;-~ - ~~ ~.............. ....% R L VERITY, Q C - VICE~CHAIRPERSON . P(J. - ~ ...... . 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