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HomeMy WebLinkAbout1991-1651.Payne.93-04-19 ONTARIO EMPL 0 YES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE ·: SETTLEMENT REGLEMENT BOARD DES GRIEFS I80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONt'ARRD, MSG ;Z8 TELEPHONE/T~L~PHONE: {416) .326-1388 180, RUE DUNDAS OUEST, BUREAU 2~00. TORONTO (ONTARIO). MSG tZ'E FACSIM)LE/TEL~cOPIE : [4~6J 326-1396 1651/91 IN THE MATTER OF ANARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE ~RGAINING ~CT Before THE GRIEVANCESETTLEMENT BOARD OPSEU (Payne) Grievor - and - The Crown.in Right of Ontario (Ministry of Revenue) Employer BEFORE R. Verity Vice-Chairperson M. Lyons Member F. Collict Member FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE A. Rae %tI~gt:~3tM3~N~ Counsel Winkler, Filion &.Wakely Barristers & Solicitors HEARING February 19, 1992 June 3, 1992 2 DECISION The grievor, Colin Payne, a member of 'the unclassified service, alleges that the non-renewal of a term contract which expired August 16, 1991 violates the provisions of Article 3.15.1 of the collective agreement. The Union characterizes the issue as a dismissal without just cause. By way of preliminary objection, the Employer contends that the Board lacks jurisdiction to consider the merits of the non-renewal of a contract of an unclassified employee. The Employer relies upon the provisions of sections 8 and 9 of the Public Service Act and section 6 of Regulation 881/89: 8. (1) A minister or any public servant who is designated in writing for the purpose by him may appoint for a period of not more than one year on the first appointment and for any period on any subsequent appointment a person to a position in the unclassified service in any Ministry over which he presides. (2) Any appointment made by a designee under subsection (1) shall be deemed to have been made by his minister. R.S.0. 1980, c.418, S.8. 9. A person who is appointed to a position in the public service for a specified period ceases to be a public servant at the expiration of that period, R.S.O. 1980, c.418, s.9. 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, ' 3 (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, (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 who are employed on a project of a recurring kind, (i) for fewer than twelve coosecutive months and for fewer than, (A) 36 1/4 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 36 1/4 hours of work per week, (B) 40 hours per week where the position, if filled by a civil servant, would be classified as a position requiring 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 to work either 36 1/4 hours per week or 40 hours per week, (c) Group 3 consisting of employees appointed on a seasonal basis for a period of at least eight consecutive weeks but less than twelve consecutive months to an annually recurring position where the contract provides that the employee is to work either 36 1/4 hours per week or 40 hours per week; (d) Group 4, consist£ng of employees, (i) who are appointed pursuant to s.8 of the Act, whether or not the duties performed by them are, or are similar to, duties performed by civil servants, and (ii) who are not employees that belong to Group 1, 2 or 3. 0. Reg. 24/86, s. 3(1)', Dart; O. Reg. 129/89, $.t. The matter proceeded on agreed facts followed by submissions of counsel. The facts can be briefly summarized. The grievor commenced employment as a-member of the unclassified service under a term contract from January 30 to April 28, 1989. Subsequently, his employment continued under a series of eleven term contracts until the last contract expired on August 16, 1991. On August 2, 1991, Mr. Payne received written notice that his. contract would not be renewed.. Throughout his employment, the grievor held the position of Validation Officer in the Ministry's unit responsible for the administration of the Ontario Home Ownership Savings Plan, a legislative enactment designed to benefit first time purchasers of residential property. The Ontario Home 0wnershiD Savinqs Plan Act, 1988 effectively commenced September 1, 1988; it provided that the last Plan must be registered by December 31, 1993, and terminated by'January 1, 1999 at which time the program ends. Apparently, there are some 55,000 applications for registration under the Act 5 'each year. The grievor has a background i~ public accounting. The grievor's position involved public accounting duties to ensure that individual plans were designed and managed in compliance with the legislation. The grievor performed the identical work of a classified Validation Specialist at the O.A.G. 8 level. The grievor applied for one of three posted unilingual Validation Specialist positions in the classified service, but was unsuccessful in the competition. .The grievor was one of the last contract staff whose services were deemed to be. no longer required. No further contract employees have been hired in the unit since August 1991. The issue is whether or not the grievor was properly appointed to the unclassified service. In that regard, the submissions of counsel can be briefly summarized. The Employer contends that the grievor was properly appointed' to the unclassified service under s.8 of the Public Service Act in accordance with the criteria of appointments specified in s.6 of Regulation 881/89. The Employer argues that the grievor ceased to 'be a public servant on the expiry of his contract on August 16, 1991, and accordingly, the Board has no jurisdiction to hear the merits of the purported dismissal. Ms. Rae contends tha% the grievor is properly characterized as~a Group 4 employee, said to be a general, catch-all provision, 'although the employment contracts characterized him as a Group 2 employee. The thrust of the 6 Employer's submission is that the distinction that separates classified and unclassified employees is the method of appointment under the Public Service Act, and that the temporary-permanent nature of the position is an irrelevant consideration. Ms. Rae argues that the issue in the instant grievance is "on all fours" with the G.S.B. decisions in OPSEU (Parry) and Ministry of Financial Institutions 237/91 (Low); and OPSEU (Porter) and Ministry of Skills Development 428/90, 1640/90, 1641/90 (Brandt). In addition, the following authorities were submitted: OPSEU ~Sinqh/Mohamed) and Ministry of Transportation 721/89, 730/89 (Kirkwood); OPSEU (O'Breza) and Ministry.of Aqriculture and Food 1101/88 (Fisher); OPSEU (Sinqh) and Ministry of the Attorney General 333/91 (Dissanayake); OPSEU. (Jafri) and Ministry of Correctional Services 933/91, 935/91 (Dissanayake); OPSEU (Justus) and Ministry of Revenue 879/91 (Knopf.); the-Supreme Court of Canada Judgment in Public Service Alliance of Canada v. Her Majesty The 0ueen Represented by the Attorney General of Canada and Econosult Inc. (March 21, 1991); and OPSEU (Arellano) and Ministry of Community and Social Services 2401/90, 2402/90 (Fisher). The Union argued that the grievor was improperly appointed to the unclassified service because the grievor's position was in the nature of a permanent position, in effect, part of an on-going permanent, package of services that the 'Ministry provides to the public. It was the Union's position that the grievor should have been appointed to the classified service as of August 1, 1991, the 7 date of his final contract. Mr. Whitaker maintains that the grievor's appointment to the unclassified service is contrary to the proper interpretation of s.8 of the Public Service Act, apart from s.6 of Regulation 881/89, and that the grievor did not fall within any of the four groups specified in that regulation. Union counsel reviewed numerous sections of the Public Service Act ~and urged the Board to conclude that there is a clear legislative intent to limit the power of appointment under s.8 of the Public Service Act to positions that are .temporary in nature. Mr. Whitaker contended that the Parry and Porter decisions were wrongly decided. He cited 'the G.S.B. decision in OPSEU (Lavoie) and Ministry of Correctional Services 441/91 (Keller) which found that the Parry analysis was manifestly wrong. The Union made reference · to the following additional authorities: OPSEU (Beresford) and Ministry of Government Services 1429/86 (Mitchnick); OPSEU (Bressette et al) and Ministry of Natural Resources 1682/87 (Wilson); OPSEU (Canete) and Ministry of Financial Institutions 2192/90 (Simmons); and 'OPSEU (Blondin et al) and Ministry of Community and Social Services~ 78/89 (Keller). The request for remedial relief is as follows: (1) appointment to the classified service on the finding that the grievor was improperly appointed to the unclassified service; (2) that the grievor be placed on the surplus list under Article 24 of the collective agreement; and (3) that the grievor be compensated for lost wages and benefits retroactive to the date of his 8 dismissal. The apparent conflict in the G.S.B.'s jurisdiction has now been resolved. Applications for judicial review of Parry, Porter, Singh and Lavoie came on together for hearing before the Ontario Court of Justice (Divisional Court). On February 4, 1993, Mr. Justice Carruthers, speaking for a unanimous court, dismissed the Union's application in Parry, Porter and Singh and endorsed the record as follows: We see no error in law in the following statement of the Board: ... We a~e of the view, therefore, that the Minister did have the power under section 8 to appoint Mr. Parry to the unclassified service at the date that he was first appointed,'and that that being the case, Mr. Parry ceased to be a public servant- pursuant to the provisions of section 9 of the Act upon the expiry of his last contract. Subsequently, on February 12, 1993, the Ontario Divisional Court allowed the Employer's application in Lavoie. Justice Carruther's endorsement reads: As in the Porter, Parry and Singh matters, all of which we have disposed of as above, the Lavoie matter involves an interpretation of section 8 of the PSA. The Board in Lavoie determined that he had not been properly appointed to the unclassified service because "he was not employed or appointed to meet temporary staffing requirements" In the course of reaching this conclusion, the Board said that "in the instant case we have found the grievor's position was an ongoing one ~with the work being performed the same as that performed by classified employees" The Board found that Lavoie was to be appointed to the classified service effective September 30, 1991, being the end of a six month period f6tlowing the termination of his second contract. Lavoie was appointed by the Minister, under section 8,' to the unclassified service. The first contract ran from 25 june 90 to 30 Sept 90 and the second from October 1, 1990 until March 31, 1991. There was no renewal of the second contract, and thus, according to section 9 of the PSA, he ceased "to be a public servant" at that time. It is our opinion that the Board's interpretation of section 8 is not correct and that its conclusion is patently. unreasonable. It is our view that the decision of this Court in OPSEU (Beresford) doesn't require us to conclude otherwise. The application insofar as it relates to Lavoie is therefore allowed. Despite the attractiveness of Mr. Whitaker's argument, judicial review has effectively disposed of the issue before us. Accordingly, we must find that the g~ievor was properly appointed to the unclassified service in accordance with s.8 of the Public Service Act and s.6 of Regulation 881/89 and that the grievor ceased to be a public servant upon the expiry of his contract on August 16, 1991. In the result, the preliminary objection is allowed and the grievance must ba dismissed. DATED at Bran%ford, Ontario, ,~thislgth day of ApriI, 1993. ~ L. V~RITY, Q.C. - VICE-CHAIRPERSON . ..,.(. .. Z/ .......... -~'. ......... ..............