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HomeMy WebLinkAbout1991-0070.Boyce.91-10-03180 DLINOAS STREE'r WEST, ..~U;TE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/T~'L~PHONE: (416)326-135& 180, RUE OUNOAS O~JEST. BUREAU 2100, TORONTO (ON, TARIO). MSG 1Z8 FACStMILE/TEI.~COPJE : (4~6) 326-~3~6 ' 7o/91 ~N THE M3,TT~ OF Mf]%RB~TRAT/ON Under THE CItOWNF~PLOYEEB COLLECTIVE BARGAZNING &CT BefoEe. TIlE GRZEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Boyce) Gr~evor - and - . The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE: P. Knopf Vice-Chairperson E. Seymour Member F. Collict Member ~0R THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR TH~ C. Rowan ' EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors July 11, 1991 DECISION This case is yet another in a long tradition of grievances launched by the Union to assert and/or determine the rights of members who have been appointed to the unclassified, service on a series of fixed term contracts. This grievance was launched to enable the Griever to challenge a job competition for a classified position of Clerk/Typist OAG 8. At the time of the grievance, the Griever was working as a clerk/typist and was the highest ranking competitor in the competition. But, she was appointed under a Group i Unclassified Service Contract and the position was given to a permanent classified employee with three years' seniority; The parties both agree that if the Griever was properly appointed to the unclassified service, she has no status to grieve this competition. Hence, this preliminary issue arises as to the.proper status of the Griever at the time of the grievance. The parties have asked this Board to determine this issue alone at the outset and, if necessary, to remain seized with the question of remedy and any other related matters that may arise thereafter under'the grievance. Thus, the purpose of this decision is simply to resolve the preliminary issue. The background of this particular case was set out in an agreed statement of facts which reads as follows: 1. The Grievpr, Teresa Boyce, was first appointed to the unclassified staff on a fixed term, contract for the period from May 24, 1988 to September 2, i988. 2. The Griever was employed on a series of short-term contracts from May 24, 1988 through to November 2, 1990 and performed clerical duties at the OAG8 level at the Hamilton District Office of the Ministry of Labour. 3. The Griever applied for a position in the classified service in August 1990. This position was that of clerk typist at the OAG8 level in the Hamilton District Office. 4. Ms. Boyce was interviewed for this position but did not win the competition. The present grievance relates to the competition for this position. 5. The Griever's last day of work with the Ministry was November 2, 1990. The details behind these facts' were given by way of evidence. The Griever, Ms. Boyce, began working on her first contract in Hamilton with the Industrial Health and Safety Branch in May of 1988. This appointment came about as a result of the management in Hamilton receiving notification of having funds granted to them effective April 1, 1988 for one clerical support position. These funds were awarded pursuant to a Ministry request to Management Board and thereafter an allocation of the funds to three.offices, one of which was chosen to be Hamilton. A decision was then made to hire a person on a three-day a week temporary basis while management determined what job functions the new position would take on so that a job description could be drafted and a competition conducted. Thus, the Griever was hired on ~contract and these administrative activities were carried out while the Griever served as clerical support in the office. The Griever admits that she was told that this position would be "temporary" when she was first hired in May of 1988. indeed, she was told that she was'there to "fill in" until the position was posted and'the competition run. Thus, while the Griever "filled in", the new position was "identified" by management and then designated to be a "clerk-typist". The competition was run and the Griever applied. She was unsuccessful and the position was filled on a permanent basis in November of 1988 by someone else. The Griever then went to work under a new contract with the Health and Safety Support Services Branch. She was - 3 - there until March of 1988. The Union takes no issue with the nature'of this appointment. Then, in April of 1989 the Grievor returned to the Industrial Health and Safety Branch. At that time, the Branch was responsible for two Regions and the Grievor was assigned to be the clerical support for the Industrial Health and Safety Officers and Managers of Region 11. Another clerical OAG 8, Bev Prodeus, was responsible for Region 14. Ms. Prodeus was a member of the classified staff with approximately 13 years' seniority. The two worked together. From April of 1989, Ms. Boyce worked in this Branch on a series of "Group 1 Unclassified Service" contracts. They ran as follows: April 1989 to July 1989 July 1989 to September of 1989 September 1989 to November 1989 December 1989 to March 1990 April 1990 to June 199.0 June 1990 to September 1990 October 1990 to November 2, 1990 The reasons why the Grievor was hired back into the Industrial Health and Safety Branch in April 1989 and the history of her work there are relevant. Susan McAloney, the Office Administrator in Hamilton, described how the Branch had identified a need for "some additional support" because the existing clerical staff was busy and managers wanted to "down load" some of their own clerical responsibilities. This need had been identified "not long prior to April 1, 1989" but Ms. McAloney could not be specific as to when. In the meantime, there was an admitted need for two clerical support staff and a desire to identify and create a new position to accommodate the overall need. So again, a decision was made to hire someone on a "temporary" basis while management came to the determination of exactly what would be needed so that a position could be'developed, a job description drafted, a classification established, and a competition run. During all this time, the Griever shared the clerical work with Bev Prodeus and worked under the series of contracts mentioned above. Meanwhile, management came to the determination that a position of "Operations Assistant" was required. This position was to be partly clerical to relieve the overload of the clerical staff and partly designed to handle some of the minor telephone enquiries previously done by the managers. Again, management took the time to develop the concept of .the position, draft a job description and hold a competition for the Operations Assistant while the Griever continued to function under the unclassified contracts. The competition was held, the Griever ¢'ompeted, but was not successful. The position was awarded to Bev Prodeus in May of 1990. The appointment of Ms. Prodeus to the position of Operations Assistant'then left a vacancy in the permanent classified position of Clerk/Typist. As Ms. McAloney then · explained for management, "We needed the work done while we ran a competition to fill the vacancy" so the Griever's temporary contracts were again renewed. But this time, unlike any other time, the Griever understood that the she was doing as a Clerk/Typist was "permanent work" and she was.being hired on a fixed term contract from June to November of 1990 to enable time for the posting and running of the competition for the permanent classified position. The position was then advertised in. August or September of 1990, the competition run and the position filled in November of 1990 by a classified employee with three years' seniority. Thus, the Griever's last contract was not renewed after November of 1990 because, in the words of' management, "the vacancy no longer existed." - 5 - In cross-examination, Ms. McAloney was pressed about the Operations Assistant functions and the competition. She admitted that during the time the Griever worked on th~ series of contracts two people were needed in clerical support. Indeed, the Griever and Ms. Prodeus shared the work and it was ongoing Ministry work that had to be done into the indefinite future. That was why management then decided to create the permanent position of Operations Assistant. But, when the competition was then held for the Operations Assistant position, if Ms. Prodeus had not succeeded she would have been kept on as the existing Clerk Typist OAG 8. The Griever would then have no longer been required and would have not had her contracts renewed after that competition. The operative legislative framework for this case is found in the Public Service Act of Ontario. The Act provides: 1. In this Act, i (a) "civil servant" means a person appointed to tho service of the Crown by the Lieutenant Governor in Council on the certificate of the Commission or'by the Commission, and "civil service" has a corresponding meaning; (b) "classified service" means the part of the public service to which civil servants are appointed; (c)"Commission" means tho Civil Service Commission; *** (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; - 6 - (h) "regulations" means the regulations made under this Act; (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. These definitions create a distinction between the "classified" or "civil service" and the "unclassified" service. The classified service is appointed under sections 6 and 7 of the Public Service Act which provides as follows: 6.-(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 eligi.bles ~of the Commission a person to fill the vacancy. (2) The Commission shall appoint the person nominated under subsection (1) to a position on the probationary staff of .the classified service for not more than one year at a time. 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 .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. Authorization for the appointment to the "unclassified" staff or service comes only from Section 8 of the Act which provides: 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 whi6h he presides. - 7 - The Regulations under the Public Service Act provide a definition for the unclassified service. Regulation 8(8)(1) subsection 6 provides: 6.(1) The unclassified service consists of employees who are employed und¢~ individual contracts in which the terms of employment are set out and is divided into, (a) Group 1', consisting of employee, s 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 fewer than nine full days ~n 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 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 o.~ work per week, (B) 40 hours per week where the position, if filled by a civil servant, would be classified as a position r~quiring 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 - 8 - 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 twelvQ 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. Effective March of 1989 the .Regulations were amended to include a Group 4 within Regulation 6(1)(a): (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 net employees that belong to Group 1, 2 or 3. The Argument Counsel for the Union argued that in order for a · person to be a member of the unclassified staff, the Employer must show that the appointment falls within Section 8 of the Public Service Act as defined by Section 6 of Regulation 881 and as it has been interpreted by the Beresford decision, GSB File 1429/86, November 17, 1989 (Mitchnick). Mr. Ryder says that the difference that has been established between the two types of appointments is a distinction between a.temporary and a permanent type of position. It was stressed that if the facts establish that a person is performing work of an ongoing or a permanent nature, then the position cannot be said to fall within that of the classified service. Counsel stressed that the facts in this case establish that th.e · Griever's initial appointments in May of 1988 and her appointments after.April of 1989 were to positions requiring - 9 - ministerial work on an ongoing basis and that they ought to have been filled on a permanent basis. It was said that if the reason for an appointment is to fill a permanent, onpoing employment requirement, the Ministry must do so by way of a classified appointment. It was forcefully argued that management should not be permitted to ignore the distinction between classified and unclassified sorvices by postponing the documentation, paper work and competition process. It was argued that in both situations management knew or recognized that a permanent position was required to fulfil the work requirements and that the onus ought t~ be on management to 'show why they should have any relief from appointing someone to the position on a permanent classified basis. Counsel for the Unidn relied on the following cases: Beresford and Ministry of Government Services, supra, iMilley and Ministry of Revenue, GSB File 1972/87, May 12, 1988 (Mitchnick), OPSEU (L. Beresford), Divisional.Court Endorsement dated December 6, 1988, Bressette et al. and Ministry of Natural Resources, GSB File 1682/87, June 29, 1989 (Wilson), OPSEU and Ministry of Natural Resoqrces, GSB Files 1480/89 et al., March 25, 1991 (Kaplan), Beresford/Milley and Ministry of Revenue, GSB Files 1429/86 and 1972/87, November 29, 1989 (Samuels), Wagner and Ministry of Citizenship, GSB Files. 3§l/89 and 352/89, October 2'7, 1989 (Glover), Kozak and Ministry of Correctional Services, GSB File 977/88, February 2, 1990 (Fisher), OPSEU (Beresford/MilIey) Divisional Court Endorsement dated November 28, 1990 and Econosult Inc., Supreme Court of Canada. dated March 21, 1991. Thus, it was submitted that the Grievor had been improperly appointed to the unclassified staff. Counsel for the Employer began by stressing the importance of the amendment to the Regulations creating the · "catch all" Group 4 employees to broaden the interpretation that ought to be given to Section 8 of the Public Service - 10 - Ac__~t. The Board was reminded that this grievance was filed after the amendment had been passed. It was said that the amendment effectively wipes out the temporary/permanent distinction identified in the Beresford decision and which was relied upon so heavily in the Union's argument. Thus, it was argued that whether the appointment was made to fill a permanent need ultimately or at its inception no longer matters because of the "Group 4" impact. On the facts of this case, it was said that the appointment of the Griever was meant to be temporary in itself'and to fill a temporary need of management during the time it needed to assess its needs and have an opportunity to post a position and run a competition to hire what ultimately turned out to be a permanent position. Thus, it was said that even if we were to still accept the temporary/permanent distinction, the facts would fall within Group l{a)(i) of Sec%ion 6. Essentially, Counsel for the Employer was arguing that the appointment to the Unclassified Service was proper because it fell within Group 1 of Section 6 of the Regulations. In the alternative, if the appointment did not seem to fall within Groups 1-3, the effect of the creation of Group 4 would mean that she must fall within Group 4 as the catch all and then .be properly appointed'under Section 8 of the Public Service Act. In reply, counsel for the Union argued that if the enactment of the Regulations and the creation of "Group 4" are accepted to have %he impact that management urges upon this Board, then the Regulations would have effectively changed the meaning of Section 8 of the Act as defined by Beresford. Counsel for the Union argued that the Beresford decision has defined Section 8 "for all time" and that tho Regulation cannot have the effect of amending the Act. - 11 - The Decision The first relevant jurisprudence to tackle the meaning and implications of the distinction between the classified and unclassified appointments was Beresford. There the Board reviewed Section 6 of the Regulations. Section 6 of Regulation BB1, as pointed out above, provides that "the unclassified service consists of" contract employees and "is divided into" 3 . Groups, which are set out in detail in the remainder of the section. That language is cast in a way that is "exhaustive" (as opposed to "inclusive"), and appears to provide, in a way expressly authorized by section 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 section 8 of the ~t. Those 3 "Groups" set out in the regulation, on the other hand, cover a very wide rang~ of situations, and obviously create a broad degree of discretion in a minister when considering a fixed-term appointment to the unclassified service, rather than an open-ended appointment to the classified. In fact, the bulk of the appointments to the unclassified staff would in all likelihood "speak for themselves", in the sense that they would, by their very nature, fall wi!:hin the terms of section 6. It may well be that in such cases no further evidence from the employer will be needed. It .is only, in other words, where the evidence pertaining to the position suggests on its face that the position fits into none of the categories of employment set out in section 6 of the regulations that an onus will arise upon the employer to present evidence of its own which would demonstrate that the appointment did in fact fall within one of the specified categ6rfes. Writing again for the Board, Mr. Mitchick as Vice-Chair in the Milley decision later dealt further with this distinction and clarified his oarlier language when he said: In simplified terms, for the purposes material here, the "classified" staff are the regular or "permanent" employees of the governnlent, and the -12~ "unclsssified" staff are the employees hired on fixed-term contracts. Those latter contracts, by their own terms, "self-destruct" on their expiry date. Further, the Milley award explains at page 11 that "Regulation 6 served to inform us to the intent and purpose of Section 8 of the Act and that the government was required tO satisfy the Board that an appointment to the 'unclassified service' fell within one of the categories stipulated by the government itself in its Regulations." All this was endorsed by the Divisional Court in its consideration of the two cases when it concluded: ... We see Regulation 6 as elaborating upon and, perhaps .defining the unclassified service to which section 8 refers (Be'resford/Milley Divisional Court supra). As recognized in Wa~ner, supra, the Beresford/Milley decision established that the Ministry's power to appoint to the unclassified service was limited to those types of jobs set Out in the Groups listed in Regulation 6. Jurisprudence thereafter looked at the nature of a griever's job, the duration of his/her appointment and to what extent it could "fit nicely" (see Wa~ner, supra, page 12) into the categories or Groups listed in Section 6. A trend towards "permanent" or "ongoing" or "continuous" types of work was accepted as falling within the language of Section 6. See W~gner, supra, and the Union grievance, supra. However, the main test has always been whether the job fell within the definition of the Groups set out in Section 6 of the Regulations as they help to define Section 8 of the Act. But the difficulty of determining when and if a position can be properly categorized was recognized in Wagner · when it said at page 12: Therefore, following the reasoning im~ Beresford, we conclude that the 3ob in which the Grievor was employed was a job that ought to have been filled by an appointment under sections 6 and 7 of the Public Service Act. This may not have been the case when Welcome ROUSe 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 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 benefits accrue to the Grievor. Both parties suggest that the gov¢:rnment passed the amendment to Regulation 6 adding Group 4 precisely to avoid these dilemmas. It was argued that the government has attempted, through its regulatory powers, to avoid the impact of the Bcresford type of review of appointments by creating the "catch all" category and thus wipiag out the permanent/temporary distinction. We must now apply these principles to the facts at hand. At the outset, it must be restated that the purpose of this award is to determine the Grievor's status or eligibility to grieve a job competition held in the faill of 1990. The grievance was filed in October of 1990. Leaving aside the propriety of her initial appointment in May of 1988, the status to have this Board hear the grievance depends upon her status in October of 1990 and therefore must be determined under the lepislative framework in place as of that time. Thus, the Group 4 category would have been in place · · The Employer would have us accept that the Grievor's appointment fell within Group 4 and thus within Section 6 of o 14 - the Regulations and Section 8 of the Public Service Act, therefore compelling a conclusion that she was properly appointed to the unclassified staff. But, the meaning and 'impact of the enactment of the amendment creating Group 4 may be quite profound. If it means what the Employer would have us accept in this case, any Beresford type of analysis by this Board of unclassified appointments would be effectively eliminated. OPSEU would have' extremely limited opportunites to challenge unclassified appointments. The distinction between the nature of appointments is of immense importance because the unclassified service has far fewer rights under the collective agreement. The government's practice of hiring unclassified staff on a long-series of fixed term contracts has attracted the-bitterness of OPSEU and criticism from this Board, the Union and elsewhere. Therefore, if the creation~ of the Group 4 category has the effect of giving "carte blanche" to management by virtue of its.unique legislative power, this is indeed a profound and significant factor. .While we were invited to resolve or answer the question of the impact of the creation of Group 4, we have decided to decline to do so for two reasons. Firstly and most importantly, as explained more fully below, the facts of this case do not turn on that issue and we are not required to make. that analysis to reach a solution in this case for this particular grievor. Secondly, without intending to imply any criticism of counsel, the parties here did not provide us with as full or clear an analysis of the issues as may be required for its proper determination. Therefore, while we have defined the issue of the Group 4 problem, we shall leave it for another panel of this Board to deal with on a more appropriate set of facts and with the benefit of further argument and assistance from the parties. As alluded to above, the facts here do not support any finding that the Grievor can be considered a Group 4 appointment. Surely, given the potential impact of finding an appointment would fall within any definition of Group 4, the onus must be on the Employer to bring the appointment within that Group. On the facts of this case, every service contract signed by this Grievor was entitled "Group 1 Unclassified Service Contract." Obviously, the mere title of the document cannot completely govern the nature or status of an appointment, but it is a significant factor. But that, coupled with the fact that the Employer offered no evidence that the appointment was not intended to be anything other than a Group 1 appointment, is significant. But much more importantly (even if it' is to the Grievor's immediate disadvantage) all of her appointments can be s~en to "fit nicely" into the sub-categories set out in Group 1. itself. If one looks at th~ Grievor's first contract to work in the Industrial Health and Safety Branch in a clerical capacity in May of 1988, the evidence establishes she was hired to "fill in" until a permanent position could'be formulated, posted and filled. It is true, as the Union stresses, that the need to do the work existed on an ongoing basis. But, at the time of the appointment, the actual position had not been formulated nor had the competition been conducted. The intent of the hiring of the Grievor was clearly and simply to "fill in" on a temporary basis for a fixed term until the permanent position was created and filled. There is no suggestion of mala fides or a devious intention to avoid making a permanent appointment earlier than necessary. At worst, the Employer can justifiably be criticized for beinG slow in the process of formulating and posting the job. But the Grievor's appointment falls squarely within or "fits nicely# into the Group l(1)(a) category of being employed "on a project of a non-recurring kind". The Grievor's second set of contested appointments is similar. She was first hired on a temporary basis back into the Industrial Health and Safety Branch while management assessed its needs and then formulated and posted the Operations Assistant position. Thereafter, she served on a temporary basis and filled in on an "interim need" of a non-recurrin~ kind while maQagement arranged the competition to fill the vacancy created in the Clerk/Typist position when Ms. Prodeus took over the Operations Assistant position. Again, management can be criticised for taking so long to. prepare for and run competitions. These delays only invite union skepticism and inevitably result in grievances such as this. But the delay in itself does not erase the fact that the hiring was in essence to fill a defined and recognizable personnel requirement on a temporary, interim basis and as such can be accepted as a Group 1(t) situation of a "project of a non-recurring kind". Thus, the facts persuade us that the Grievor's appointments all fall within Group 1 of Section 6 of the Regulations which defines the type of appointments a Minister may make to the unclassified staff. Given this finding, we must· conclude that her appointment therefore falls squarely within the unclassified staff. As conceded by the Union, as a member of the unclassified service she has no entitlement - 17 - to grieve the competition for the position of Clerk/Typist. Thus, the grievanc~ mus~ be dismissed. DATED at Toronto, Ontario this 3r4 day of October, 1991. Paula Knopf -Vice-Chairperson £. SeYmour- ~ember F.'~°'l'lict -, Member