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HomeMy WebLinkAbout1991-0441.Lavoie.92-01-31, fi~'i '. :!.~! ONT,~RIO EMPLOYES D~ L.A COu~oNNE · ,. CROWN EMPLOYE~S ~L 'ONT.4',IaJO ' ' ~" GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DLINDAS STREET WES1'. SLI;TE 21~, ~OR~O, ON~AR~ M5G ~Ze ~ELE~O~E/~E~O~E ~4~ ~-~3~ 441/91 ZN THE MATTER OF ~N ~RBITRATION Unde~ TH~ CROWN EMPLOYEES COLLECTIVE BAJ~GAINING ACT Befo~e THE GRIEV~CE SETTLEltENT BO;~RD BETIT~EN OPSEU ~ (Lavoie) Grievor The Crow~ in Right of Ontario (Ministry of Correctional Se~rices) Employer BEFORE: B. Keller Vice-Chairperson I. Thomson Member " G. Milley. Member FOR THE A. Ryder GRTEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR ~ J. Ravenscroft EMPLOYE~ Grievance Officer Ministry of Correctional Services HEARING Septe~er 3, 1991 - 2 - The instant decision deals with the non-renewal of a limited term contract appointment. What makes it somewhat novel at this time is that the employer conceded that it is not made under Group 1, 2, or 3 of s.6 of the Regulations but under Group 4 which was added in March 1989. Section 6 of the Regulations is, as everyone knows by now, that section which "fleshes-out" section 8 of the Public Service Act. 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. 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 assignment arranged by the commission in accordance with its program for providing temporary help, - 3 - (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 ~ho are employed on a project of a recurring kind, (i) for fewer than twelve consecutive months and for fewer than,~i (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 classified as a position requiring 40 hours of woF~ per week, (ii) for fewer than eight~consecutive weeks per year where the contract· of the employee provides that the employee is to work eitlher 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. O.Reg. 129/89, s. 1. The grievor, a Correctional Officer, was hired to the unclassified service at the Vanier Centre for Women. The method of hiring was by temporary contract of which there were two. The first ran from June 25 to September 30, 1990 and the second from October 1, 1990 ~ntil March 31, 1991. There was no renewal of the second contract. On behalf of the grievor it is submitted, firstly, that the grievor was improperly, appointed to the'unclassified service thus giving the Board jurisdiction to deal with the merits of the grievance and secondly, that the non-renewal of the griewor's contract was a disguised discharge, the employer being without just cause and acting in bad faith. The employer takes the position that the grievo~ was properly appointed to the unclassified service, his appointment falling within Group 4 of s.6 of the Regulations. As a result, it is - 5 - submitted, 'this Board is without jurisdiction to deal with the merits o~_~be grievance. Lt is fur~her~ submitted-that) if the Board finds it has.jurisdiction, the decision ~f the employer not to renew-the grievor~s contract was a proper one. Subsequent to the hearing in the instant case, another panel of the Board issued a decision dealing with Group 4 appointment [Parry, 237/91, October i6, 1991 (Low)]. The Board in that case reviews the debate to this point and conclude~ that, inter alia, the Beresford decision (1429/86) does~not impor~ a connotation of temporariness when interpreting s.'8 of the Act and s.6 of the Regulations. The Board in ~ar~¥, after analyzing the 3 Groups found before the latest amendment concludes that: "It is apparent from the languages of Section 6 of the Regulation that while some types of positio~%s which comprised the unclassified service prior to 1'98.9 were positions of a temporary nature, there were others which were prina ~ permanent". The Board concludes by saying: As we construe the provisions of section 8 of the Statute, there is no circumscription of the power to - 6 - appoint to the unclassified service except that: (a) the firs~_apDointment_.must be for.a-period-of les~ than a year; and (b) the "unclassified service" is defined by the Regulation. As the regulation stood at the date of Mr. Parry's appointment, there existed a fourth group within the unclassified service which consists of appointees pursuant to section 8 of the Act whether or not their duties are similar to those performed by civil servants and who are not employees belonging to Groups 1, 2 or 3 or the Regulation. In effect, section 6 of the Regulation creates a full circle if read together with section 8 of the Statute, the net effect of which is to permit the Minister to appoint any employee to the unclassified service provided the first contract is for less than one year. In short, the Minister may appoint a person to the unclassified service and a person in the unclassified service is defined as anyone appointed by the Minister under section 8 to the unclassified service. While the draftsmanship is not elegant, we are unable to escape the conclusion that the intent of the legislation is to expand the ~inister's powers of appointment under section 8 of the Statute. .The parties to the instant case subsequently commented on the Parry decision. The employer submitted that the decision in Parry was directly relevant to the decision to be made by this Board and urged that we give it due consideration. The response of Mr. Ryder, who has argued all the seminal cases in this area, was fairly lengthy. Rather than trying to paraphrase it, we - 7 - chose to reproduce the salient aspects of it below. 1. it is respectfully submitted that the majority decision in Parrv is manifestly incorrect. There are two main points made by the majority in ParitY. a. First, it has interpreted s.8 of the PSA on p.8 as permitting appointments to meet permanent staffing requirements and does not limit the power to appoint for temporary purposes. In short, it obliterates the difference in substance (permanent/temporary) between the classified and unclassified services. b. Secondly, on pp. 9 and 10, it finds that s.6 of the Regulation can be used to expand the Minister's powers of' appointment under $.8 of the statute. 1. It is submitted that Parry is wrong in overruling the Board's jurisprudencel in Beresford, Mi~le¥, Beresford/Mil'lev (Remedy, at pp. 5 and 6) Wa~ner, Bresse~te (1682/87), Un,on (1480/89), B~ondin (78/89), Union (3il/88), Ryder (3413/87), Canete and a number of other decisions, all based on a recognition of the difference in substance between the unclassified and classified services. It cannot be said that Beresfo~d and the other decisions referred to above are manifestly incorrect. Indeed, Bressette at p. 22 describe:Beresford as manifestly correct. Furthermore the Beresford interpretation was endorsed by the Divisional Court. 2. Also the difference in Substance between the services is reinforced by the different treatment accorded to civi.1, servants (Classified) in the PSA. - 8 - 3. It is also important to observe that the difference in substance is confirmed by the difference in the manner o~ appointment. 4. Further confirmation is provided by the fact that the Collective Agreement has been negotiated on the ' basis of the temporary/permanent distinction between the two services. For example, Article ¢ assumes that all permanent positions will be appointed under it. It was surely never intended that Article 4 would be by-passed by a parallel permanent service appointed under s.8. Similarly, unclassified employees receive reduced benefits and job security ' under the' Collective Agreement in some twenty-seven different instances.. This can be justified only if the unclassified consists of temporary employees because %heir employment claims are not as great as permanent employees. They do not. look to the employer for the.full range of their economic benefits. The justification for treating the unclassified differently than the classified disappears if both services are used to fill permanent positions. 5. Accordingly, it simply cannot be said (ad does Parry) that the only difference between the two services relates to the manner of appointment. THE REGULATION CAN BE USED TO EXPAND THE MINISTER'S POWERS OF APPOINTMENT UNDER S.$ OF THE STATUTE Underlying the Parry decision on this point is the notion that the scope of the appointment power under s.8 of the Act is defined by the Regulations. For example p. 6 of the Parry decision states that the Beresford interpretation of s.8 is "found at s.6 of the Regulation". Again at p. 9, ~arrv sates that "no where else is there a definition of unclassified service" ... except in s.6 of the Regulation. - 9 - 2. Dressette confirms the law. that the power to appoint to the unclassified service comes from s.8 of the Act. At pages 17 and 18 the.Board stated: "the authority of the DePuty Minister to appoint to the unclassified service exists in the Public Service Act, s.8. The Bergsford panel found, that it is not an unlimited power.., the limitation therefore appears to find its source in s.8 of the Public Service Act itself. The regulation appears only to flesh out the.! terms 0of that limited power... Only the legislature can change the Public Service Act". , 3. The Board in Beresford and Miller.also referred to the original, groups in Regulation 6 as ~an interpretive guide to the mganing of s.8. In ~~ at p. 11, the Board stated: "the Board concluded that s.6 of Regulation 881 which the Government had. found it appropriate to pass, thus served to inform as to the intent and purpose of s.$ of the Act ..." 4. The original Groups (1, 2. and 3) had a temporary flavour about them and therefore indicated that even the Civil Service Commission recognized that. the intention of the legislature, in creating the unclassified service, Was to meet temporary employment requirements. As noted, the Board made it clear that its reference to the groups was. for the purpose of interpreting the intention of the legislature when it drafted, the Act. The Board has never said that the score of s.8 of the Act can be enlarged by the Regulations. As noted above, ~ressette confirms that only the legislature can change the Act. Rather, what the Board has said, is that the Government itself, by regulation, can limit the exercise of the s.8 power. Through Groups I,. 2 and 3, the Government did in fact restrict the exercise of its s.8 powers because it is possible to make temporary appointments within the meaning of - 10 - s.8 and still not fall within one of these groups. In Milley, the Board found that the Government is bound by_its own_Regulation,_even though, a private citizen may not be in that the Regulation may be LL~ v_~ the Act. 5. Accordingly, it is submitted that the definition of the un'classified service comes from the Board's interpretation of s.8 of the statute and that the Regulation was only used as an interpretive guide. In addition, as noted, the Regulation creates a further limitation by dividing the s.8 appointees into narrowly defined groups, but this does not mean -- that the Regulation can be used to expand the definition of s.8. 6. it is trite law that the regulation power cannot be used to expand the powers given by the legislature in a statute (E. v. Slater Steel Industries [1971] 1 O.R. 760). 'In the particular case of the PSA, the power to pass regulations in s.30(1) does not purport to give that power. It is submitted that it would be very unusual for a legislature to create an unclassified service in s.8 of the PSA and then give the Civil Service Commission the right to enlarge on the definition which'the legislature enacted. For such a power to exist it would have to be given in the most explicit terms. An example of such a power in the PSA is provided by s.13(2) which expressly delegates to the regulation power under s.30(1)(u) the right to designate the positions captured by · this section of the Act. A similar power does not exist in 7. It is submitted that Management's argument that the Regulations can be used to expand the Act is similar to an earlier argument that was made in ~icks. As the Board knows, when the PSA was first enacted, there was no CE'CBA or Collective Agreement. The Regulations to the PSA provided the terms and conditions of employment for public servants. However with the enactment of CECBA a collective - 11 - bargaining regime was catv'ed out for a portion of the public service. Accordingly, in many ways the Collective Agreement displaced the-Regulations and therefore s.30(3) was added to the PSA to ensure that, in a conflict, the. Collective Agreement prevailed over the Regulations. 8. In Hicks, Management argued that because the Collective Agreement appeared to recognize the existence of non-temporary unclassified appointments, then it must follow that s.8 authorized such appointment~. Bres~ette deals with this fully at p. 18 where the Board stated: "However, the panel in Hicks in fact .used subsection 30(3) to "read', Regulation 881 in such a way as to substantially change the appointment power in s.8 of the Act as it had been defined by the Beresford Panel. Obviously, ss. 30(3) cannot be used to expand the appointment, power beyond the statutory mandate in the PSA. The Beresford language defines the statutorv power to appoint to the unclassified service as something ~'distinguished ... from the "normal" "permanent" position of the classified service" ... there is no legal authority for the. Boa. rd to use ss. 30(3) to expand the statutory authority of the Deputy Minister. Furthermore, I add that the bargaining parties Cannot through th'e Collective Agreement expand those statutory powers, of appointment. Only the legislature can change the PSA". THE PROPER SCOPE OF GROUP 4 1. Group 4 did not exist at thel time of the originally Beresford decision. Before Group 4 the origilnal groups (Groups 1, 2 and 3) were so narrowly defined that it was possible to be appointed for a temporary purpose and therefore be within the scope of s.8 of the Act but still not fall within any of the groups. Accordingly Group 4 can be interpreted as an attempt to regularize appointments to the unclassified - 12 - service which do not fit into. Group 1, 2 and 3. It is submitted therefore that Group 4 should be interpr__e._ted .in_ this _~ay_~hecause_ such. an interpretation does not conflict with s' 8 of the Act. After a careful analysis of the Act, and Regulations, the previous Board decision of BeresfQr~, supra and B~essette (1687/87), the parrv, supra, decision as well as the submission of the parties we find that we must respectfully disagree with the conclusion reached in The power to appoint to the unclassified service comes from Section 8 of the Act. Section 6 of the Regulation can do nothing more than flesh out the Act - it can not expand the statutory provision. In our view the proper approach to take is the one that was taken in Bressette, supra. In that decision the Board says, in part: The second issue is a broader and more serious one than that of interpreting the collective agreement. The authority of the deputy minister to appoint to the unclassified service exists in the Public Service Act_ section 8. The Berg~ord panel found that it is not an unlimited power. At page 14 it interprets section 8: "That wording would, therefore, tend to support Mr. - 13 - Ryder's agrument that, in order to fall within the contemplation of the Legislature as to what constitut~s_a "proper'ka~Dpintmen~ term basis, there must be something, about the job in its initial conception which distinguishes it from the normal "permanent" position in the unclassified source." The limitation therefore appears to find its source, in section 8 of the Public Service Ac9 itself. The Regulation appears only'to flesh out the terms of that limited power. There does not seem to be any open- ended residue of power of appointment remaining in section 8. The existing regulation at the time of Beresford appears to exhauts the general scope of the. appointment power. However, the panel in Hicks in fact used subsection 30(3) to "read" Regulation 881 in such a way as to substantially change the appointment power in section 8 of the Act as it had been defined by the Beresford panel. Obviously, subsection 30(3) cannot be used to. expand the appointment power beyond the statutory mandate in the Public Service Act. The Beresford language' defines the statutory power to appoint to the unclassified service as something "distingu~ihed · · · from the ,'normal" "permanent" position in.the classified source." Apart from the question of the propel techniques for "reading down" of statutes o'r regulations - a constitutional law doctrine, - there is n~o legal authority for the Board. to use subsection 30(3) to expand the statutory authority of the deputy minister. Furthermore, I add that the bargaining parties cannot through the collective agreement expand those statutory powers of appointmemt. Only the Legislature can change the Public Service Act. Flowing from the above, we must conclude that in both Beresford and Bressette the Board was saying that an appointment to the - 14 - unclassified service must be of the type that distinguishes it from the "normal" "P.9.rman__ent" .positions-in the classified~ service. In our view Group 4 aDpointments, even though wider in nature than those in Group 1, 2, or 3 nevertheless are equally restricted and the addition of the Group can not, of itself, expand the meaning, of Section 6 of the Act. It can create a new category of appointments which must continue to be, as stated in, Beresford "distinguished ... from the "normal" "permanent" position in the classified source". The Board in Bressette stated that the parties could not in the collective agreement expand the statutory powers of appointment. The same holds~ true for the employer. It can not expand the statutory powers of appointment indirectly through the Regulation. The latter must · conform to the Act and not vice-versa. ~hus it is our conclusion that Group 4 does nothing more than expand on the types of appointments that may be made to the unclassified service but can not be said to negate the previous decisions of the Board that have defined the scope of s.~8 of the Act. The end result, then, is that an inquiry must still be made to determine the nature of the appointment as that will determine whether it is properly a s.8 appointment or not - 15 - In th~ ins~9~._¢ase neither_of_~Lhe gDievor's appointment-fall properly within s.8 of the Act in that he was not employed or appointed to meet temporary staffing requirements. He was, as submitted by the union, "used to meet the continuous,.ongoing staffing requirements of the institUtion. Some of his hours may have been irregular and for some weeks he may have worked less'- than full time hours, but throughout his employment he was meeting permanent.employment requirements not temporary ones". As a result we have the reqUisite ju~isdictio'n, to inquire into the merits of the g~i'evance. According to the evidence of the employer, the grievor's contract was not renewed because he had been~involved in three incidents which were viewed as "serious". According to Mr. D.M. Oliver the Deputy Superintendent of Operations who made the decision not to renew the contract, one of the reasons persons are employed on contract is to ascertain if they are suitable for full-time employment. As a result of the three incidents he had concerns about the suitability of the grievor to adequately perform the work and decided not to.renew the con'tracts. The first incident de_a~_t._.with_an_allegation-made-by--eome inmates of the Centre that the grievor didn't like two classified officers. The grievor met with the two officers and told them he had never made any such remarks. Thd grievor never received anything in writing about the matter nor was he ever counselled or verbally reprimanded. -. Some time later the grievor made an inappropriate comment to a young offender. He was counselled for it and a note put in his fact file, On December 24, 1990 a female inmate made certain allegations' against the grievor. She complained that the grievor entered her 'bedroom, sat on the edge of her bed and engaged in a conversation that involved personal information. The grievor testified that he was doing his rounds when he came to a bedroom door that was closed, contrary to the regulations. He opened it, startling the inmate. A brief conversation then took place. Among other subjects discussed was the grievor's wife. The griev0r stated that he never entered the bedroom. The Centre invest~.g~t~%h__e~ci~ent, add_ ~e_ ~h~_ results._krLQwn_ to the grievor on February 1, 1991. The letter to him upheld the allegation, admitted by him, that he had talked with the inmate about deter, is of his personal life. It found no support for the claim he had sat on the bed. It concluded no dimciplinary action was warranted. A further incident took place this time regarding t~e grievor's pay. In mid-December 1990 a pay cheque was short of hours. He went and talked to the secretary Who informed him it would be rectified on the next cheque. It wasn't and he was informed by the secretary that because it was Christmas time only scheduled hours and not overtime would be.pald on the cheque~. The grievor, who was experiencing financial difficulties, arranged to postpone the payment of his rent until his next pay. When it arrived it was short even more than the previous ones. He then proceeded through the chain of command to see if the matter could be straightened out. He was told"by the office Director, the Deputy Superintendent of Operations:and the Superintendent of the Centre that nothing could be done, - 18 - He went to see the ~oc~] Union. Pnasident.--Three-days.:l~ter--he was given an advance cheque by his superv.isor. 'Shortly after that he-was called to Oliver's office. He was told that he had not been successful in a competition he had entered. According to the grievor Oliver also told him to watch who he was speaking " to and that certain people in the union like to use casuals. He was also told, he testified, that because there were too many casuals some would have to be laid-off including him. Oliver denied making any comment about the contract renewal. He testified that he told the grievor he should seek advice from management as well as the union. He agreed that he had been asked for his held as had other members of management. The grievor had two Performance Planning and Reviews (PPR) conducted. The first, covering the period June 25, 1990 to September 1, 1990 was prepared by Mr.' Linton - OM16 Supervisor. Linton supervises about eight employees and has been doing PPRs since .1986. He rated the grievor as satisfactory in all areas except Offender Supervision (needs improvement) and Dress and Deportment (commendable). His written comments were positive. The grievor testified Linton showed him his next appraisal covering the period to December 31, 1990 on December 23. He was asked to review it and sign it, wh!ich he did. All ratings were satisfactory, except one commendable. In January he was called into Linton's office and told that Oliver was not impressed with Lint°n's PPR of him. Linton said that he would not change the PPR but would append a letter to it reg&rdinH the incidents ~referred to above in this 4ecision. The grievor stated that Linton told him he was an asset to the institution and recommended him for 'full-time employment. The grievor never saw the second PPR again. He was called to Oliver's office on February 14, 1991 and shown a PPR covering the period September 30, 1990 - January 31, 1991. It rated the grievor as satisfactory in all areas except Counselling and Control of Offenders and Offender Supervision in whiclh he was rated "needs improvement". The three incidents were again discussed and he was told his cont'ract would not be renewed. Oliver also told the grievor that Linton hadn't been aware of the incidents ~nd that was why the ratinqs were chanqed. ~he gr~evor responded that Linton had known of the incidents because they had d~scussed them previouslY. Oliver testified Linton hadn't reviewed the second appraisal with him and that when he saw that the incidents weren't mentioned he contacted Linton who said he hadn't been aware of them, He told Lin'ton to go to the fact file, review the documents on it and re-write the PPR. The fac% file is used to store letters and other notations to be used in preparing the PPR. The third appraisal followed. Linton did not testify. It was Oliver's evidence that he decided not to renew the employment of the grievor because of the three incidents. His concern with the first incident was that a meeting had to take place and the concerns expressed by the two officers. Me did not know the statements that were allegedly made or if the inmates were questioned. He agreed that if the allegations were sustained a counselling letter would have followed. Oliver acknowledged that the gr'ievor was counselled, not disciplined over the second incident. In assessing the last incident Oliwer testified that he relied heavily on the inmate's statement. He stated initially that the allegation about the grievor sitting on the bed affected his decision although he later changed his evidence to say he didn't consider it. He agreed that a l~t of what was alleged and. considered by him was stated too be unfounded in the Centre's investigation of the incident. He agreed that Linton would know what was supposed to be in a fact file, would know to review it before preparing a PPR and so should have known of ~he incidents when preparing his appraisal. On reviewing the above evidence it.is our determination that there was not just cause to terminate the grievor as wa:~ done. He had never been disciplined. He iwas counselled only once. Linton, the person preparing his appraisal, rated him fairly - 22 ~ highly in the P~Rs. Oliver's decision was, according to his own testimogy, ba3e~ o_gn alleg~t~on~ a~d i~cidents.~hat a~te= investigation by his own staff were determined to not warrant discipline.- His decision was not based on any sustainable rationa~.e. This, combined with the pay cheque incident leads us to conclude that Oliver's decision was not a reasonable one and that the grievor was unjustly dismissed. In the instant case we have found that the grievor's position was an ongoing one with the work being p.erformed the same as that performed by classified employees. What is to be done with the grievor. A whole raft of decisions have dealt with this issue over the last few years. (See, for example, W. aqoer 351/89, Canete, 2192/90). As was stated in ~anete, the remedy to be fashioned must be remedial and not punitive, we are satisfied that the grievor was improperly in the unclassified service as the position was a continuing one. Accordingly we are prepared to exercise our jurisdiction to force the appointment'~ of the grievor to the classified service, our reasoning is quite simple: the grievor Was appointed to a position .that was improperly designated as part of the unclassified service. While in that position he was rated satisfactorily and, before Linton by Linton that he was recommending him for full-time employment. We can assume, on the balance of probabilities that, but for the unlawful act of the employer this would have taken ~,lace. The only question is when. It is not unreasonable to take the position that he would have been renewed for a further six month period. Given Linton's statement" to the grievor he then would have been entitled to seek full-time employment. Accordingly we order: 1) The grievor is to be appointed to the classified service effective September 30, 1991. 2) The grievor is to De entitled to compensation, as a contract employee, from April 1, 1991 to September 30, 1991, the whole with interest.. 3) The grievor is to be placedlon the surplus list with ~n effective seniority date of September ~0 19!)1 Nepean,~ this 3tsc day of January, Mi Brian Keller, Vice-'Chair ~Jhomson, Union Nominee G. Mill,y, Employer Nominee LAVOIE 441/91 DISSENT I have read the majority award and] with respect, I am unable to agree with the co~clusioas of my colleagues. I am of the opinion that the addition of Group 4 appointments to the regulations adds a new dimension to the Beresford line of cases that cannot lightly be dismissed. The majority award (pl4) bases its conclusions on two proposit- ions said to flow from Beresford and Bressette: 1. That an appointment to the unclassified service must be of the type that distinguishes it from the "normal" "permanent" positions in the classified service; and 2. That the civil service Commission ca'not expand the statutory powers of appointment indirectly through the Regulatioas. : With respect, an analysis of Beresfor~ and Brissette will nob, in my view, support either of those pro~ositions. The main reason the board in Beresford said the grievor was improperly appointed to the unclassified service was b~ause the wordin~ of section 6 of the Regulations restricted the appointment of unclassified employees %o Groups I,~, and 3 as described in ~hat Section of the Regulations. The ~rlevor, the Board said, did not fall into -any of these categories and, thus, the appointment was improper. Bissette followed the same reasoning. This is borne out by Beresford (DI~): "Yet,as discussed, we are compelled to conclude that section 6 of the regulations, by its very terms, requires the appointment to the unclass- ified service under section 8 to fall within one of the categories set out in the regulations" "... 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 page of the various situations encompassed by the 3 groups set out in the regulations, and as contemplated by section 8 of the Pubi~c Service Act. We find, therefore, that the purported appointment of the griever to the "unclassified" as opposed to the "classified" service was improper." The Board's reason for its decision is crystallized in the above excerpts from its award. I do not see how it can be ignored. What would have happened if the griev0r's appointment to the unclassified position had been a proper one~? The Beresfo~ board answers this question on page 5. After guoting Section 8(1) of The Act the board continued: "And then, 'section 9, the key to the employer's pos- ition, expressly provides: A pe~son who is appointed.to a posit{on in the public service for ~ specified period ceases to be a public servant at the expiration of that period. Thus, if one assumes that a minister or other designated person acting within his or her authority to appoint an individual to a fixed-term employment contract in the "unclassified service", that person by · operation of the Statute ceases to be employed (or ceases to be a"public servant?) upon the expiration of the period of the contract. There is, in other words, in the language of the Board's lengthy juris- prudence dealing with this point, no "dismissal". In the instant case, therefore, thel evidence is that the griever (Lavoie) was properly appointed to a fixed term employment contract in the "unclassifie~"service. As stated, the second proposition .~ the majority award relies on is that the Civil service Commis'~sion cannot expand the stat- utory powers of appointment indirectly through the regulations. page 3 However, a review of Beresford and Bressette fails to reveal evidence to support this proposition. Nor does the majority in the instant case itself cite any jurisprudence to support it. On page 14, the award says: "The Board in Bressette stated that the parties could not in the collective agreement expand the statutory powers of appointment. The same holds true for the employer." In the broad sense, this implies that because the Government ' is also the employer it is debarred from making regulations under section 30 of the Act "(w) Respecting any matter necessary or advisable to carry on effectively the intent and purpose of (the) Act" If the government is so restricted, then what process is available to make regulations under section 30 of the act? In fact, there would appear to be no limitation in section 30 to make changes in the regulations proveded there is no conflict between the regulations and section 8 of the Act. On this matter, Bressette says (pS): "In the decision of the Divisional Court, which relates to Beresford and the subsequent'Board decision in Milley and Ministry of revenue (GSB 1972/87) which followed Beresford, Mr. Justice Osler for the Court wrote: ?The attack upon the Board has been made on the basis that section 6 of ontario Regulation 881 of the Public S~rvice Actis in conflict with section 8 thereof. It was submitted that these two enactments are in conflict. That is not the view of this court and we see Regulation 6 as elaborating upon and, perhaps defining the unclassified service to which section 8 refers. As no conflict exists, we see no error in the finding of the Board or in the methods by which they proceeded and, accordingly, both applications will be dismissed" pat_re 4 This matter was also reviewed in Parry 237/91 (p9): " It seems to be common qround that an appointment made by the Minister under section 8 of the statute can only be properly made provided that it is also in compliance with section 6 of the Re~ulatic2n since nowhere else is there a definition of "unclassified service". The issue then is whether section 6 (1) (d) of the regulation is contradictory to or inconsistent with s'ection 8 of the statute. As we construe the provis, i~ns of section 8 of the Statute, there is no circumscription of the power to appoint to the unclassified service except that: (a) the first appointment must be for a period of less than a year; and (b) the "unclassified service" is defined by the Regulation." It would appear, therefore, that section 6(1)(d) of 'bhe Regul- ation is not contradictory or inconsistent with section 8 of the Statute in the same sense that the establishment of groups 1,2 a~d 3 is not c~ntradictor¥ o'r inconsistent. Thus, if section 6 can serve to establish groups 1, 2, and 3 to flesh out the Act, why can it not serve to establish group 4 to flesh it out further? On the basis of the evidence, I would conclude that the appoint- ment of the grievor (Lavoie) to ithe unclassified service is valid and proper and the Board i's without jurisdictiun to hear the merits of the case. Respectfully submitte~L% ~eorge ~ f~ey-~ / Board Member