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HomeMy WebLinkAbout1991-0340.Browarski.93-04-19 O'NTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS [80 I')UNOAS STREET WEST, SUITE 2?00, 70RONTO, ONTARIO MSG 1ZB TELEPHONE/T~L~PHONL;.. (416) 326- ~388 180, RUE DUNDAS OLIEST, BUREAU 2700, TOROI',ITO {ONTARIO). M$G IZ8 FACS/MILE/T~L~COPlE ,' (476) 32E,-7396 340/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARG~%INING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Browarski) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE G. Brandt Vice-Chairperson J. Carruthers Member R. Scott Member FOR THE M. Doyle GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE S. Mason RESPONDENT Counsel Legal Services Branch Ministry of Community & social Services HEARING January 14, 1993 AWARD This is another in a series of cases involving the issue of the appropriate relief to award where an employee is found to have been improperly appointed to the unclassified service by a series of short term contracts. It is well established in the jurisprudence of the board that purported limited term appointments to positions that do not fit into one of the categories set out in Regulation 881(6) under the Public Service Act are improper and unauthorized under the Act. (See Beresford/Milley (1972/87, Mitchnick). By an award dated January 31, 1992 this panel decided that the grievor had been improperly appointed to the unclassified service. However, in view of what it considered to be the unique circumstances of the case it refrained from ordering specific relief. Rather it issued a general declaration and invited the parties to negotiate a satisfactory resolution of the question of the consequential specific relief flowing from that declaration. Further, the board remained seised of jurisdiction in the event that those efforts proved unsuccessful. The issue has now been returned to the board for determination. The union seeks an order appointing the grievor to the classified service as well certain other consequential relief. The employer denies that any relief is appropriate or, 3 if relief is to be awarded, it should be limited to consequential monetary relief only. it will be helpful to review briefly the facts as set out by the board in its first award. Throughout her tenure with the Ministry the grievor has been employed as a Nurse 2, General in the Infirmary/Extended Care Unit at Prince Edward Heights, a facility for the developmentally handicapped, She was initially appointed in a part time capacity. However, on November 4, 1987, her appointment was converted to a full time appointment to run until March 30, 1988. She was successively reappointed without any interruption in service on 12 more fixed term contracts varying in duration from one to four months. On March 12, 1991 she was advised that her contract, which was to expire on March 30, 1991, would not be renewed. However, she accepted a part time position for the period April 1 to September 30, 1991. It is agreed that throughout this period the grievor continued to perform the same duties and responsibilities. In June 1990 the employer posted three vacancies for the position of Nurse 2 General. In connection with those postings the employer considered that, having regard to certain of the duties and responsibilities in the position, it was appropriate to establish a minimum score of 81 (out of 125 maximum points) as a cut off point for all applicants. Five people applied for the position and were all interviewed. The panel determined that the scores obtained in the interview would be decisive. However, the scoring system developed allowed for no credit to be given for experience in the position. The grievor, who received a score of 70.7, came third in the competition. However, she was not appointed to one of the three vacancies as she had not met the minimum threshold of 80. Instead of filling the vacancy at this time the employer decided to re post the vacancy and run another competition at a later date. However, since it remained necessary to ensure 24 hour coverage in the unit, the employer renewed the grievor's appointment to the unclassified service. As such the grievor continued to perform the same duties as had been performed prior to the competition. In January 1991 the third vacancy was posted and the same selection criteria and minimum score established. Nineteen candidates applied and the grievor, who this time achieved a score of 80.6, placed sixth in the competition. She was again denied the position. However, she continued to work, full time, under contract until April 1, 1991 when the successful candidate started. Thereafter, as noted, the grievor was re-appointed on a part time basis. The employer conceded that, having regard to the Beresford/Milley line of cases, the appointments up to April 1, 1989 were improper. However, it argued that a change in Regulation 881 adding a 4th category to the list of "proper" appointments to the unclassified service, rendered all appointments made subsequent to April 1, 1989 proper. The board accepted that argument and found, accordingly, that the grievor had been improperly appointed to the unclassified service for a period from November 4, 1987 to April 1, 1989 but that all subsequent short term appointments were proper. It was this unique feature of the case that led the board to refrain from ordering any specific relief. When the panel reconvened the union asked for an order appointing the grievor to the classified service and directing that she be given the rights of employees pursuant to Article 24 of the collective agreement. Further, the union sought an order directing the employer to pay to the grievor the difference in wages and benefits (between classified and unclassified employees) over the period between November 4, 1987 and April 1, 1989. 5 Counsel for the employer argued that in the~circumstances no relief at all should be ordered as the union has not demonstrated that any loss has been suffered. In {he alternative it was argued that, should the board award relief, it ought not to appoint the grievor to the classified service. Rather, relief should be limited to an order directing the payment of the value of any wages and benefits that she would have enjoyed as a classified employee during the period of her improper appointment. We do not accept the submission of the Employer that no relief at all should be awarded. Counsel relied on Wagner (351/89, 352/89) where the board affirmed the general remedial principle that relief should be directed at compensating the grievor for actual loss or detriment suffered as a result of unlawful management action; that no relief need be ordered where the grievor has suffered no loss as a result of the breach. The board, in Waqner, found it was highly unlikely that the grievor would have been successful, had the employer acted properly and posted the position. Consequently, it declined to appoint her to the classified service and instead directed the employer to post the position and give the grievor an opportunity to compete. The employer argues in this case that the evidence is more compelling than in Wagner since the grievor has twice been given an opportunity to compete and has twice failed to secure 6 appointment through that process. Thus, it is argued that it is unlikely that, if the employer had posted the position in November of 1987 (as it ought to have), the grievor would have been successful. The board was invited to take the same position as was taken in Arellano (2401/90, 2401/90) (Fisher) where appointment to the classified service was held inappropriate for a grievor who held a number of short term appointments until the position was posted at which time she competed and was unsuccessful. The board was not persuaded that in the circumstances the union had shown that, had the position been posted earlier, the grievor would have been successful. We reject this argument for the same reasons that were set out in the award of J~nuary 31, 1992 where the following appears: We agree with the submissions of the union in this regard. In our opinion Wa~ner cannot be read.as establishing a kind of formula such that failure to succeed in a competition will, for all purposes, deprive a grievor of a remedy where appropriate. Nor do we consider Arellano as precluding us from awarding relief in an appropriate case. In ~rellano the employer acted immediately following the failure of the grievor in the competition. It chose not to renew her contract at the first available opportunity. In the instant matter, following the grievor's unsuccessful bid for the position in the June 1990 competition, the employer nevertheless renewed her contract, with no change in duties, for a further term from October 1, 1990 to January 31, 1991. Indeed the evidence is that the employer was prepared to use the grievor's considerable knowledge and experience so that it could fill the position on a 24 hour basis until such time as a second competition could be held. Moreover, after the second competition in January of 1991, the grievor's contract was again renewed for a term from February 1, 1991 to April 1, 1991 at which time the successful candidate in the second competition was available to begin. 7 In these circumstances we find somewhat hollow the employer's claim that the results of the competition should be considered as dispositive of the issue. Consequently, we are inclined in this case to award relief in respect of that period of time during which the grievor's appointment to the unclassified service was admittedly improper. We turn therefore to the question of the type of relief that should be granted; viz, whether it should be limited to a monetary payment for lost wages and benefits (as the employer submits) or should also include an appointment of the grievor to the classified service with consequent collective agreement rights (as the un'ion claims). Typically in cases of this kind the union asks for an order that the wrong be remedied through an appointment to the classified service and on to the surplus list. The jurisdiction of the board to make such appointments has been confirmed by the Divisional Court on review of the decision of the board in Beresford/Millev. The board has also expressed concerns about the use of this remedy. In Waqner (supra) the board characterized such an order as one in which the grievor would be permitted to "jump the queue", similarly, in E1-Korazati (775/88 (Samuels) it was noted that by granting such relief a grievor would be put into the classified service and have rights to positions without having had to succeed in a job competition. In Senior (2184/90 (Roberts) the board identified a number of considerations that ought to determine the circumstances in which it would exercise its discretion to award this kind of relief. 8 One such consideration was that the powe~ ought to be kept in reserve for "extreme cases." The essence of the union's argument in the matter now before the board is that the continued use by the employer of the grievor's services without any alteration in duties qualifies as a special circumstance that warrants an exercise by the board of its discretion to award the remedy of appointment to the public service. It is submitted that, in this respect, this case differs from E1-Korazati (supra) where there was no apparent renewal of the contract following the competition and from Senior (supra) where the grievor's services were terminated immediately following the failed competition. It is argued by the union that the board should be guided by Canete (2192/90 (Simmons); Lavoie (441/91 (Keller); and Lethbridqe (1739-41/90 (Samuels). In Canete the grievor had a succession of short term appointments in which she performed services as a clerk, doing overflow work to assist secretarial work that was being done. At some point the employer posted 5 secretarial positions and the grievor's services became redundant. The grievor did not compete in any of the posted positions as she was a clerk and not a secretary. In ordering that the grievor be placed on the surplus list in the classified service the board noted that there was 9 evidence that the grievor's duties occupied her attention on a full time basis in the fact that she was reappointed 4 times following her initial ~ppointment. Although the board could not order the employer to post the duties she was performing as a vacancy it felt that the employer "ought not to be able to avoid posting vacancies in the classified service on the one hand and use unclassified employees...on the other hand, through not following their appointments according to the regulations." In Lavoie the board found that the grievor had been improperly appointed to the unclassified service and inquired into the merits of a purported "non-renewal" of his contract with a view to determining whether it was, in reality, a discharge without just cause. The evidence indicated that his immediate supervisor had given him positive performance appraisals and told him he would recommend him for full time employment.~ However these performance appraisals from his immediate supervisor were changed by a more senior management official, ostensibly because the supervisor was unaware of certain "incidents" that had occurred. It was further found that there was no evidence that would support discharge on the basis of those incidents. In the circumstances the board ordered the grievor appointed to the classified service since "while in the position he was rated satisfactorily and before [the supervisor] was told to change his appraisal..., the grievor was told by...that he was recommending him for full time employment." The board assumed that, but for t0 the unlawful non-renewal of the contract, he would have become entitled to seek full time employment. Consequently, he was appointed to the classified service and placed on the surplus list. In Lethbrid~e the employer converted the grievors, who had been unclassified, to classified employees by appointing them to newly created full time classified positions. However, the positions were not posted in violation of the collective agreement and, when the employer posted the positions and held a competition (in response to a grievance from the union), the grievors were not successful. Accordingly, they were returned to the unclassified service. The union argued that at the very least the grievors should have been considered as surplus employees and treated according to Article 24 of the collective agreement. The board held that, although the failure to post the positions may have been a violation of the rights of other members of the bargaining unit, it did not have the effect of vitiating the otherwise valid original appointments of the grievors to the classified service. As such the board held that the grievors "must be considered to have remained in the classified service after their failure to get the posted positions...they became surplus employees and have the rights provided in Article 24 of the collective agreement." 11 Although in these cases the grievors were appointed to (or as in Lethbridge held to have remained in) the classified service, the circumstances were such as to qualify them as "extreme" cases within the meaning of Senior. The facts in Lethbridge are obviously quite unique and bear little relation to those before us. Lavoie is a case in which there appears to have been some bad faith by the employer in using "non-renewal" where it was clear that "discharge" was unsupportable. In Canete the grievor had no opportunity to compete for the position as the position posted was not the same one that the grievor had occupied. The case which appears to be closest to the instant case is Ryder (2413/87 '(Dissanayake) where the board considered the appropriate remedy for the grievor who was found in an earlier decision (Springate) to have been improperly appointed to the unclassified service. The grievor was employed for approximately two and a half years under a succession of consecutive fixed term contracts. He grieved upon the non-renewal of his contract terminating on December 31, 1987. In the original award the board noted that during this period the grievor entered competitions for positions in the classified service but was aXways ~nsuccessful and that ultimately management concluded that it was inappropriate to continue to employ him as part of the unclassified service and directed that his contract not be renewed. 12 in declining to appoint the grievor to the classified service the board noted that as "the grievor has had several opportunities but failed to secure a position in the classified service through competitions" it would not be appropriate to appoint him to the classified service or to place him in a surplus list, "which will confer upon him a classified service position, without going through the competition process." Like the instant case the grievor was permitted to continue on in his duties following his failure in a competition and that circumstance was not treated as one that would warrant the granting of what is generally acknowledged to be relief that should be reserved for extreme cases. We do not consider this to be a case in which the grievor should be awarded an appointment to the classified service. The union's case is based largely On the inferences that can be drawn from the fact that the employer permitted the grievor to continue on for some months following her unsuccessful competitions for the job. While we agree that this is of some relevance it is important to note that in this case the inference that can be drawn does not necessarily point to the conclusion that the employer regarded the grievor as competent in the position as was the case in Lavoie. In the first competition the employer was only able to fill 2 of the 3 vacancies and kept the grievor on as there was still a need for her services. When the third vacancy 13 was posted some 6 months later (and the grievor was again unsuccessful) the employer extended her appointment until such time as the successful candidate could start. In neither case was there any indication or representation to the grievor that the employer, by its conduct, considered her to be competent or qualified to fill the position as a classified employee. Nor can we be confident in concluding that, had the position been posted in 1987 and the grievor given an opportunity to compete at that time she would have been successful. The union submitted that it is possible that a competition held at that time may not have attracted as many better qualified candidates than did the competitions in 1990 'and 1991 and that the grievor would have been successful in the competition. That may or may not be so. Equally, however, it can be said if the competition had been held in 1987 when it ought to have been held the grievor would not have had the experience in the position that she had in 1990 and 1991 and that she would, accordingly, have been disadvantaged in the competition. The problem we face is that either conclusion can only be speculative at best and we are reluctant to enter into that speculation. In this regard we adopt the approach taken in McClelland (865/88 (Stewart). There is, however, another aspect to the matter that deserves comment. The board has frequently expressed its concern about permitting employees to enter the classified service through a process other than by competition. That addresses an issue of basic fairness between and among the members of the bargaining unit as reflected explicitly in the conduct of the employer in Lethbridqe. It is for that reason that the board has said frequently that this remedy should be reserved for extreme cases where, on balance, the rights of the individual grievor ought to prevail over those of other members of the bargaining unit. We do not consider this to be an extreme case warranting extreme remedial action by the board. The length of the "improper appointment" was of the order of a year and a half, not uncommon in these cases. (See Senior where a similar period was found insufficient to warrant appointment to the classified service). Nor is there anything to indicate that the employer treated the grievor in an unfair or unconscionable fashion by, for example, representing to her that she would be employed in the classified service or inducing her to give up other opportunities for this position. What the employer did was to continue to employ the grievor for a period of time after she had been unsuccessful in the two 15 competitions. The employer might, at that time, have chosen not to renew the contract having regard to the results of the competition. However, as it continued to have need for her services until the vacancies were filled, it renewed her contract. That was an arrangement that was mutually beneficial. It extended the grievor's employment while at the same time permitting the employer to staff the unit until the vacancies could be filled. We do not consider this act of the employer to be of the sort that would warrant the ordering of extraordinary relief. Finally, when the position was finally posted the grievor was given full opportunity to apply for and be considered for the position. As she was unsuccessful on two competitions she cannot now seek entry into the classified service by board fiat. Nevertheless the grievor is entitled to some relief. The employer has effectively deprived her of an opportunity to compete for a position in the classified service through its failure to post the position for the period in question. While we have said that we do not wish to speculate as to the grievor's chances of success had such a competition been held we do not believe it is open to the employer, having wrongfully deprived the grievor of those opportunities, to now argue that she would not have succeeded in any event. Accordingly, we grant the relief that is normally granted in cases of this kind, that is, a direction to the employer to give the grievor notice of and an opportunity to compete in future competitions and to consider her application in good faith. We acknowledge that in recessionary times where government restraint and job freezing is the order of the day this relief may be somewhat less than adequate. Short of appointing the grievor to the classified service the only other effective relief would be to award her the differences between the wages and benefits of classified and unclassified employees for the period from November 1987 to'April 1989. However, to do so would be to assume that she would have been successful in any competition had it been held. As indicated that is a very speculative conclusion and one which is best addressed by the relief herein ordered. Dated at LONDON, Ont. this 19thday of April, , 1993. G. J. Brandt, Vice Chairperson "I Dissent" (dissent attached) J. Carruthers, Union Member J. Scott, Employer Member DISSENT OF J. CARRUTHERS 340/91 OPSEU - BROWARSKI Having read the decision of the majority in remedy in this case, I find I must disagree in part. While ~ agree that this is certainly a case in which a remedy is appropriate, I disagree with the particular remedy which has been chosen by the majority. I would have granted the same remedy as is found in the Canete case and als0 in Lavoie, ordering appointment to the classified service. I would also have directed that the grievor be given the rights of classified employees pursuant to Article 24 of the Collective Agreement. The Board has jurisdiction to order such an appointment. I would have found that to have been the appropriate remedy, given the fact that even after having been unsuccessful in competitions for her job, the grievor was kept on by the employer, performing exactly the same duties as she wou~d have done, had she won the competitions. In this respect, I disagree with the majority when they find that these facts do not permit the inference to be drawn ?[hat the employer regarded the grievor as competent in the position". I would have found that such an inference can be drawn, and that the employer clearly saw the grievor as competent in the position. Given that, as the majority of the Board observes, we are "in recessionary times, where government restraint and job freezing is the order of the day" the opportunity to compete in future competitions and to have her application considered in good faith is indeed "less than adequate". This grievor has served the employer faithfully, has provided service competent enough to have her continued in employment for a number of years, and has been deprived of an opportunity to compete for a position in the classified service for a substantial portion of that period of employment. I would have ordered that she be appointed to the classified service, given the rights of an employee under Article 24 of the Collective Agreement and awarded the difference in wages and benefits between classified and unclassified employees for the period from November 24, 1987 to April 1, 1989. Carruthers D