Loading...
HomeMy WebLinkAbout1991-1679.Gosse.93-12-21 '*i ", , . ....- , ,,:,~ ':, ONTARIO EMPLOY£S DE LA COURONNE CROWN EMPLOYEES OE [.'ONTARIO ....... GRIEVANCE C,OMMISSION DE ', SETTLEMENT REGLEMENT BOARD DES GRIEFS ~$0 DUNI~A$ STREET WEST, suITE 2100, TOI~ONTO, ONTARIO. M5G ?Z8 TELEPHONE/T~LEPHOtqE: (41~) 326r ~$8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO)· MSG IZ8 FACSIMILEITELECOPIE : {4 ~6) 326- t396 ZN THE MATTER OF ~/~ ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before · THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gosse) Grievor The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFOREt M. Gorsky Vice-Chairperson M. Lyons Member M. O'Toole Member FOR THE M. McFadden UNION Counsel Koskie & Minsky Barristers & Solicitors POR THE M. Fleishman EMPLOYER Counsel Crown Law office - Civil Ministry of the Attorney General HEARING February 27, 1992 July 20, 1992 November 3, 1993 ' 1 INTERIM DECISION The Grievances and Backqround The Grievor, Katherine Gosse, was at all material times a member of the unclassified service, employed in the Supp0~t & Custody Order Enforcement Office of the Ministry of the Attorney General, having the position title of Mail/File Clerk, and was placed at the OAG 2 classification. Ms. Gosse had. been employed under five consecutive contracts of employment in the unclassified service, which are as follows: 1. Exhibit 3, dated March 1, 1990, effective March 6, 1990; with an expiry date of Ma~ch 31, 1990. 2. Exhibit 4, also dated March 1, 1990, effective from April 1, 1990; with an expiry date of June 30, 1990. 3. Exhibit 5, dated June 21, 1990, with an effective date from July 1, 1990; with an expiry date of October 31, 1990. 4. Exhibit 7, dated October 8, .1990, with' an effective date November 1, 1990; with an.expiry date of March 31, 1991. 2 5. Exhibit 8, dated February 1, 1991, having an effective date of April 10, 199'1; with an expiry date of September 30, 1991. As part of Part V of each of the contracts, pgragraph (M) provides: "This contract of empl'oyment may be terminated by either party~upon giving one week's notice of such intention, otherwise it will expire on the date specified above." Exhibit 11 is a letter dated July 8, 1991, addr-essed to Ms~ Gosse, written by Ms. K.A. Beal, shown as Regional Manager of the Support'and Custody Enforcement 'Branch, Central West Region of the Ministry of the Attorney General, which letter states: Please be advised that effective July 9, 1991, you will not be required to attend work. However you will be paid up to and including July 19, 1991. The parties filed with the Board a document in the form of an agreed statement of facts entitled: "Chronology Re Mail/file Position," which is as foll0ws: CHRONOLOGY RE MAIL/FILE POSITION Jan. 1, 1990 -Mar. 31, i990 Maryann MacDonald was contracted to assist' Penny Johnson , the '. classified mail/file clerk who was. assigned part-time to clerk/typist duties. Mar. 6, 1990- Mar. 31, 1990 Katherine Gosse was hired on contract as a mail/file clerk. Apr. 1, 1990- Mar. 31, 1991 Ma ryann MacDona ld c, ontract renewed to backfill Penny Johnson. 3 Apr. 1, 1990 - Jun. 30, 1990 Katherine Gosse contract renewed. Jul. 1, 1990 ~ Oct. 31, 1990 Katherine Gosse contract renewed. Oct. 30, 1990 M a i 1 / f i 1 e c 1 e r k competition posted (freeze had been imposed from March 1990). Nov. 1, 1990 ~ Mar. 31, 1991 Katherine Gosse contract renewed. Nov. 30, 1990 Clerk/typist position posted. Jan. 1991 interviews held for ma i 1 / f i 1 e · c 1-erk competition. Feb. i,. 1991 Katherine Gosse s~gned mail/file clerk contract effective April 1, 1991. Feb. 4, 1991 Penny Johnson.' successful candidate in clerk/typist competition. Therefore, another vacancy existed for the mail/file clerk position. Feb. 18, 1991 Ma r ya nn Ma c Do na 1 d successful candidate in ma i I / f i i e c.1 e r k competition. Katherine Gosse was an unsuccessful candidate. Mar. 27, 1991 Second mail/~file clerk competition posted. July 22, 1991 Mail/file clerk vacancy filled. Katherine Gosse was unsuccessful candidate. The successful candidate in the competition with which we are concerned was Mr. Shane Burry, who was given notice of the 4 hearings, and who attended on the first day of hearing, but did not attend on the second day. On July 24, 1991, Ms. Gosse filed a grievance, Exhibit 2, claiming that her "qualifications, ability and seniority were not given fair and unbiased consideration and~that [she] was not the successful applicant in [the noted competition].''~ She requested that she: "... be awarded the' competition with full seniority, pay & vacation benefits and pension credits ~retroactive to July 12, 1991 and the current bank rate of interest paid on all monies owing." On August 8, 1991, Ms. Gosse filed a grievance, Exhibit 1, grieving that~ she had: "been unjustly dismissed." The settlement desired was: "That I be reinstated with full retroactive pay, seniority, vacation and benefits and pension credits and the current bank rate of interest paid on all monies owing." Objectiong to A~bitra~lity After the.opening statements of counsel for the parties, counsel for the Employer raised two preliminary objections: i. That if the Board found that Ms. Gosse had been properly appointed to the unclassified service, then her comPetition grievance was not arbitrable. 5 That the non-renewal of a contract of a member of the unclassified service was also not arbitrable. The Termination GrievanGe In the case before us, it was submitted that Ms. Gosse·'s contract was Germinated because the position that she had been assigned to as an unclassified contract employee had been filled as a classified position. It was submitted that it was understood that she was hired to fill the unclassified position only until it was filled as a classified position. It was further submitted that the termination of the contract was not in the nature of a disciplinary measure, and there was no suggestion that the termination was for cause. Counsel for the Employer proposed to call evidence with resPect to the preliminary objections in order to clarify the circumstances surrounding the hiring of the Grievor; that her appointment to the unclassified service was proper; and that her termination took place sglely as a result of the unclassified position that she occupied on a contract basis being filled through the competition process on a classified basis. As counsel for the Union acknowledged that he would ~ot be arguing that the Grievor had not been properly appointed to the unclassified service, it is unnecessary to review the evidence called'by counsel for the Employer in that regard. 6 Evidence was adduced as to whether paragraph (M) of the terms and conditions of employment (Part V), set out in ail of the employment contracts, above referred to, had been explained to the Grievor by Ms. Pasqualina Iapaolo, the Assistant Regional Manager of the Support & Custody 'Orders Enforcement Branch, in the Hamilton Re'gional Office of the Employer, who, as part of her responsibilities, was required to' review contracts with contract employees prior to their signing them, to .ensure that they understood their provisions. We are satisfied that Ms. Gosse was given an opportunity to read over the contracts~ and that she did .so. Ms. Iapaolo testified that she had explained the terms and conditions to Ms. Gosse, who 'denied this assertion. We conclude that nothing turns on which version of what took place is accepted. We do not regard Ms. Gosse as having been mislead as to the nature of the obligation she was undertaking, and the provisions of paragraph (M) are straightforward. We also accept that it was the practice of the Employer, when purporting to rely upon the said provision, to give two weeks' notice to' affected employees, which was also its intention in this case when notice of termination (Exhibit 11) was given to Ms. Gosse. Counsel. for the Employer also relied on art. 3.12 of the collective agreement: Employment may be terminated by the Employer at any time with one (1) week's notice, or pay in lieu thereof. 7 Counsel argued that that is what was done in this case, except that the Grievor was 9iven two weeks' notice with pay. counsel for the Employer also.relied on the provisions of s.9 of the Publ%c,Servic~ Act, R.S.O. 1980 c. 418, which provides: 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. Relying on the provisions of paragraph (M) of the terms and conditions of employment and article 3.12 of the collective agreement, it was submitted that the Grievor had no status to grieve the termination of her contract. Reference was made to R.G. COrey, 377/86 (Gandz). In that ease, the Board found' that the grievor was an unclassified Correctional Officer 1, and that he had been appointed as a public servant in the unclassified service under section 8 of the Public Service~Act for the period October 16, 1985 to APril 15, 1986; that he ceased to be a public servant at the expiry of his contract on April .15, 1986; and that he had been'notified in writing by the employer on April 7, !986 that his'contrac~ would not be renewed when it expired. Relying on the distinction'made between non- renewal and termination in Cascag%ette, 1246/85, Humeniu~, 614/84, · and Skalesky, 429/81, the Board stated, at p.3, that 'iThey set up a simple matrix," which was set out at p.4: REASONS FOR SEVERANCE FORM OF ' Performance- No__~t SEVERANCE OF related Performance- EMPLOYMENT related Termination Grievable Not Grievable during contract Non-renewal at Not 'Grievable Not Grievable end of contract There'was no suggestion, in Core~, that the termination of the contract during its operation was performance related, and ther'e was no basis, for that termination being grieved in accordance with the j~risprudenee of the Board as there set out. We are satisfied, from the evidence in the case before us, that there was no further need for the Grievor's services as a Mail/file Clerk after the appointment of Mr. BUrry to the position, which had been converted from an unclassified to a classified one.· This was not a ease where just cause had to be shown,.as would be the case if the termination was performance related. The need for an incumbent~ in the unc~lassified position ended when it was converted to a classified one. Reference was also,made to Singh, 333/91 (DiSsanayake), where the grievor, a member of the unclassified service, ~laimed that he had been dismissed without just cause and sought reinstatement with full redress. The employer, in that case, as does the Employer.in the case before us, took the position that the grievor was not~ dismissed at all, and that what occurred was a decision by the employer not to' renew his fixed-term contract. At p. 15 of the same case, the Board noted the fact that it was "faced with the new fourth category of unclassified employees included in subsection (d) of section 6(1) [of the Regulations to the Public Serv~c9 Act]." The Board added, at pp. 15-16, that an appointment~to the unclassified service need only be made "pursuant to and in compliance with, section 8 of the Public Service Act. As we have noted, there was no attempt to demonstrate that ~the Grievor was appointed otherwise than as an unclassified employee. The Board (at p. 18) concluded that it had no jurisdiction to deal with the grievance once it was ascertained that the grievor~ ceased to be a public servant. Although,· in that case, this occurred on "the expiry of his contract ... ," the same result would apply in the case before us as the contract expired under the terms of paragraph (M) or under article 3.12 of the collective agreement. Termination under the latter article is to be distinguished from a termination for cause. The situation before us is analogous·to a case, at common law~ or .under the Employment Standards Act, where a contract of employment can be terminated subject to compliance with·specified notice. Referrence was also made t0 Porter 428/90·etc. (Brandt), to the same~effect, and also with respect to the right to pursue a competition grievance. There, the Board concluded, at p.17: · / In summary, we find that the Grievor was properly appointed in accordance with section 8 of the Public Service AGt and O.Reg. 129/89. Therefore, she has no status to pursue the competition grievance. Nor, in'the absence of any claim that the non-renewal of' her contract, is a disguised dismissal for culpable conduct, does she have any status to pursue the dismissal grievance. Although, on the facts of the Porter case, the decision related to a contract that had expired by effluxion of time, we regard the principle to be the same in the case before us: that jurisdiction in the case of a grievance by an unclassified employee relating to the termination of his contract, whether by effluxion of time, or notice, is dependent on a finding that what'actually took place was a "disguised dismissal for culpable conduct." On the facts of the case before us, there is no basis for a finding other than that the Grievor's contract was terminated because the Employer had no need for anyone to perform the work that was now to be performed by the incumbent, Mr. Burry as a classified employee. The Competition Grievance There was a considerable hiatus between the second day of hearing, July 20, 1992, and 'the reconvening of the final day of hearing on Novembe~ 3, 1993. During that time, a decision of the Board in Not,and, 3160/9'2 (Gorsky) was released. That case was heard on August 27, 1993, and the decision is dated September 21, 1993, and it is On this decision that counsel for the Union relied as a basis .for th~ Board concluding that it had jurisdiction to hear the competition grievance. The Norlan~ case dealt with whether the provisions of article 3.15.1, when considered in the light of the purpose of that article and in the context of other articles in the collective agreement, had the effect of changing the previous jurisprudence of the Board which denied unclassified employees the right to grieve competition cases. The article considered in the No~and case is found in.the collective agreement between the parties from January 1, 1992 to December 31, 1993, and is found in the same language'in the agreement before us, being from January 1, 1989 to December 31, 1991. The article is as follows: Effective April 1, 1991, where the same work has been .performed by an employee in the Unclassified Service for a period of at least two (2) consecutive years, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work, and shall post a vacancy in accordance with Article 4 (Posting and Filling of Vacancies or New Positioas). Although counsel for the Employer regarded the decision in Nor~a~d to be wrong (which decision, coincidentally, was delivered by the same panel seized of the instant case), his position was that it was unnecessary for us to reject our earlier decision in order to find in his favour. We were asked to find that the Grievor ~had not passed the threshold established in art. 3.15~.1, so as to make its provisions applicable to the facts of her case. in Norland, the Board'concluded that if article 3.15.1 did not apply to th~ facts before it, then, the jurisprudence of the Board, 1'2 which was referred to, indicated that the grievor would'not have been able to grieve the competition. Does article 3.1'5.1 apply to the facts of this case? Article 3.15.1 obliges, "the Ministry ... [to] establish a position within the Classified Service to perform" "the same work [that] has been performed by an employee in th~ unclassified service for a period of at least two (2) consecutive years.., where the Ministry has determined that there is a continuing need for that work to be performed on a full-time basis .... " The Board can only find that article 3.15.1 applies to a case before it in accordance with its express ~terms, but cannot expand the terms to apply to a case because it may seem reasonable to do so. Given the specific requirements of the language found in article 3.15.1, it is not possible for us to ~ay that it applies to the facts before us. This is because it does not require, the Employer to post the vacancy in accordance with artiole 4 until the employee performing "the same work" - the Grievor in this case - has done so "for a period of at least two (2) consecutive years. .... " On the facts before us, this was not the case, even if all of the other conditions for the application of the article have been met~ If the conditions for the application of art. 3.15.1 are to be expanded, this wil. 1 have to be done'by agreement of the parties. 13 Decision Accordingly, and for the above reasons, we have no jurisdiction to adjudicate the grievances, and they are not arbitrable, Dated at Toronto this 21sc day of December, 1993. M. Gorsky - Vice Chairperson .-~-~~~' ~ ,~~/ Addendum · attached. :~. Lyons ~ Mem~r 'Toole - Member RE: 1679/91, 1741/91 OOSSE (OPS~3 & Ministry of the Attorney General) Although I concur with the decision in this matter, two issues that arose during the hearing concern me.. Firstly, it seems clear, that the reason the' parties negotiated Article 3.15.1 was to end a practice whereby an pe[son would be appointed to the Unclassified Service and then perform the same work for many years under a series of contracts. If there was a continuing need for the work, the parties wanted to ensure that the employee performing the work received the additional benefits available to Classified employees. However, the possibility for abuse has not been ccmpletely eliminated. For example, it is possible for the ~nployer to appoint a series of people to the Unclassified Service under a series of contracts over many years to perform work for which there is a continuing need, providing no employee performs the work for at least two consecutive years.. It seems to me that if the same work has been performed for a period of at least two .years, whether~ by one person or a series of people in the Unclassified Service, and it has been determined that there is a continuing need for that work to be performed, then a position in the Classified Service ought to be created. Secondly, I am concerned about the fact that Ms. Beal's cC~ments about the Grievor during the c<X~Petition process effectively served to veto the Grievor's appointment to the Classified Service. Following the interviews, the Grievor was ranked first by every member 'of the selection panel. Her overall marks were more than 10~ greater than the second ranked candidate, Mr. Burry, who was an external candidate with no experience in the position. As w~tl, the Grievor's contract was renewed four times during her sixteen months of employment, which would indicate that she was performing her work ' satisfactorily. Yet, despite the objective evidence it had that the Grievor had superior qualifications, ability and experience, the selection panel chose to deny the Grievor the position based on Ms. Beal's co~mentso In effect, Ms. Beal was able to Veto the Grievor ' s selection as the successful candidate in the ccmpetition. Had we found that the Grievor had the right to grieve the results of the ccmpetition, I believe we would also have found that the Grievor should have ~been appointed to the position. Dated,~at Toronto this 30th day of November, 1993.