HomeMy WebLinkAbout1991-2228.Jennings.93-03-29 ONTARIO EMPLOY~_S DE COURONNE
CROWN EMPLOYEES DE L "ON TA RIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
lEO DUNDAS 5TF~EET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1ZJ] TELEPHONE/TE£E~HONE:
150, RUE OUNOA$ OLJEST, BUREAU 2100, TORONTO (ONTARIO). M5G tZ8 FAC$fI'WfLE/T~-:L~COPIE
2228/91
IN TH~ MATTER OF AN [%RBITPJ%TION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BO/%RD
BETWEEN
OPSEU (Jennings)
Grievor
The Crown in Right of Ontario
(Ministry of Revenue)
Employer
BEFORE: S. Stewart Vice-Chairperson
E. Seymour Member
M. O'Toole Member
FOR TH~ A. Ryder
UNION Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE A. Rae
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
EEARIN~ June 1, 30, 1992
DECISION
In a grievance dated September 30, 1991 Ms. D.
Jennings claims that she was improperly dismissed. At the
time of her termination Ms. Jennings was a member of the
unclassified service. It is the position of the'Employer
that Ms. Jennings is not entitled to challenge the
termination of her employment as the matter is simply one
of the expiry of an unclassified contract. It is the
position of the Union, on the basis 'of the Beresford line
of cases, that there was permanent ongoing work performed
by the grievor, that the position of the grievor was
improperly designated as an unclassified position and that
it ought to have been designated as a classified position.
it is the Union's alternative position that the Employer
was obliged to convert the grievor's unclassified position
to a classified position by virtue of Article 3.15.1 of the
Collective Agreement.
Ms. Jennings commenced her employment with the
Guaranteed Income and Tax Credit Branch of the Ministry of
Revenue as a qo-temp in January, 1988. She entered into
the first of a successive series of unclassified term
contracts in the position of word processing operator on
September 25, 1989. Ms. Jennings' position was established
to fill the position of a classified employee on
secondment. Ms. Jennings' first contract was for the term
September 21, 1989 to March 23, 1990. This 'contract, as
well as the subsequent contracts, indicates that it is in
relation to a Group 4 appointment. Shortly before the
expiry of a contract scheduled to terminate on September
30, 1991, Ms. Jennings was advised that her contract would
not be renewed. A request had been made for the funding of
the position however approval had not been received. This
aspect of the evidence will be discussed in further detail
below. Ms. Jennings wa~ asked to return to her former
position, which she did on February 3, 1992. At the time
of the hearing Ms. Jennings had completed the term of one
unclassified contract and had entered into a second
unclassified contract, the term of which had not yet
expired.
The Board heard evidence from both Ms. Jennings and Ms.
D. Oliver, supervisor of office support with the department
between August, 1989 and November, .1991. When Ms. Jennings
commenced her employment in the unclassified service there
was a complement of seven full-time classified word
processing operator positions. However, only four of those
positions were filled. Of the four that were filled, three
of the incumbents were on acting assignments elsewhere.
Accordingly, the work was performed by one permanent
classified employee, five unclassified employees and a go-
temp. The three positions that were not filled were posted
in October 1989. The grievor applied but she was not one
of the successful applicants. Following the posting the
department was staffed nominally by seven classified
employees, however because of continuing acting assignments
two unclassified staff remained. In April, 1991 the
complement of seven was reduced to six. The grievor
remained on staff in her unclassified capacity until
September, 1991, when, as previously noted, she was advised
that her contract would not be renewed. Another
unclassified employee who had been employed longer than the
grievor remained on staff. The go-temp who had been
employed in the department was terminated effective two
days following the departure of Ms. Jennings~ Ms. Oliver
testified that three persons in classified positions were
scheduled to return to the unit at the time Ms. Jennings'
contract expired. Two returned shortly after she left and
one returned in about January, i992. Ms. Oliver testified
that approval was requested for the two unclassified
positions to continue. Approval was obtained for the
continuation of one unclassified position hoWever she did
not receive approval for the continuation of Ms. Jennings'
unclassified position. Ms. Oliver stated that funding
restraints was the reason that she did not receive approval
for Ms. Jennings' position, i
In summary then, at the time of Ms. Jennings' departure
the Employer was operating on the basis of one less than
complement, with the work of the department being performed
by five persons, two classified employees, two unclassified
employees and a go-temp. In November, 1991, Ms. Oliver
assumed an acting position and.one of the classified
employees assumed her position on an acting basis. One of
the ~lassified employees who had been in the department
accepted an acting assignment commencing February 1, 1992.
In or around December, 1991, one of the six classified
employees who was on a secondment and out of the department
successfully applied for a vacant position elsewhere,
leaving a vacancy in a classified position.
Ms. Jennings testified that Ms. A. Anderson, a member
of the bargaining unit who was acting manager of the
department following Ms. Oliver's departure in November,
1991, advised her that the department ~s busy following
her departure, that some overtime work was performed and
that some work was performed by a go-temp when she was
available. Ms. Oliver testified that during the time that
she was manager of the department subsequent to Ms.
Jennings' departure there was no work performed on an
overtime basis. Some assistance was obtained from persons
in other areas of the organizatibn, some of whom had
previously provided assistance to the department, however
this assistance was minimal. Ms. Oliver stated that the
department was busy but that a longer turnaround time for
the work was accepted.
5
Ms. Jennings testified that she was contacted on or
about December 15, 1991 and asked to return to her former
position on January 6,. 1992. She initially rejected that
offer as she had accepted another position at that time and
did not wish to return, however subsequently she was
notified of her lay-off in that other position and
contacted the Employer to accept the offer. It was
arranged that she would return on Feburary 3, 1992. Ms.
Oliver testified that she obtained funding for Ms.
Jennings' position in order to backfill because of the
secondment of the one classified employee into her position
and the secondment of another employee in February.
The position for the vacancy resulting from the
departure of the full-time employee~was posted in January,
1991. The grievor applied for this position but was
unsuccessful. The successful applicant was the other
unclassified employee who had remained when Ms. Jennings
had left. In February, 1992 there were five word
Drocessing operators in the department, four of whom were
in classified positions and one, Ms. Jennings, in an
unclassified position.
There was some evidence adduced~about the reduced
prospects for work in this department in the future,
relating to the facts that one of the programs that the
6
grievor was working on will cease at the end of 1993, that
another of the programs that she was working on will be
taken over by the Federal government in December, 1992, and
that other employees of the Branch are being trained to
carry out their own word processing. We need not deal with
this aspect of the evidence as it is our view that the
relevant prospects for the future are the circumstances
existing at the time of the expiry of Ms. Jennings' final
contract in 1991. However, the subsequent events relating
to the staffing and the recall of Ms. Jennings are relevant
to the extent that they are of assistance in determining
the nature of the Employer's staffing requirements and how
they were dealt with.
We will first deal with the Union's Beresford
· argument. The relevant statutory provisions are sections
6, 7, 8 and 9 of the Public Service Act and Regulation
881/89 made pursuant to that Act. These provisions state
as follows:
6 (1) When a vacancy exists in the classified
service, the deputy minister of the
ministry in which the vacancy exists
shall nominate in writing from the
list of eligibles of the Commission
a person to fill the vacancy.
(2) The Commission shall appoint the person
nominated under subsection (1) to a
position on the probationary staff of the
classified service for not more than
one year at a time.
7 The Commission shall, if requested in writing
7
by the deputy minister, recommend to the
Lieutenant Governor in Council the appointment
of a person on the probationary staff of the
classified service to the regular staff of the
classified service, and the recommendation
shall be accompanied by the certificate of
qualification and assignment of the Commission.
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.
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.
Regulation 881
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,
(iv) for fewer than fourteen hours.per week or fewer
than nine full days in four consecutive weeks
or on an irregular on on-callbasis,
(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 consecutive months and
for fewer than,
(a) 36 1/4 hours per week where the position, if
filled by a civil servant, would be
classified as a position requiring 36 1/4
hours 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 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 consisting 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. O. Reg, 24/86, s. 3(1), part; O.Reg. 1
129/89, s. 1.
We heard extensive submissions from counsel with
respect to the Beresfor~ decision of this Board and its
9
progeny. In Beresford, su_~up_~, which was decided prior to
the amendment to section 6 of the Regulation by the
addition of Group 4, the Board found that an Unclassified
employee whose contract was not renewed had been improperly
appointed to the unclassified seruice as the position did
not involve duties that fell within any of the three groups
referred to in section 6 of the Regulation as it existed at
that time. The groups as defined were considered to be
exhaustive and the Board held that an appointment which did
not fall within one of those groups was not contemplated by
section 8 of the Public Service Act and was therefore
improper. There is reference in that decision to the fact
that the work performed by that grievor was not of a
temporary or non-recurring position. The Beresford
decision was upheld on judicial review and was followed in
a number of subsequent decisions of the Grievance
Settlement Board. Following the amendment of Regulation
881 to include Group 4 the issue of whether the use of
unclassified employees for work that is not temporary in
nature was revisited by this Board.
In Parry, 237/9I, (Low), the Union's submission that
an appointment of the unclassified service'must be in
relation to work that is temporary in nature in order for
such an appointment to have been made in accordance with
section 8 of the Public Service Act was rejected. At p. 5
10
of that decision the Board state% that:
The provisions of section 6 (1) (d) defining
Group 4 of the unclassified service is [sic]
unambiguous in that it appears to catch all
employees who do not belong to Groups 1, 2 or 3,
and includes employees whether or not their duties
are similar to those performed by civil servants
(i.e. classified employees) provided that the
appointment was pursuant to section 8 of the Act which
requires that the first appointment be for no more
than one year.
rAside from this restriction with respect to the first
appointment, as well as the restriction contained in
Article 3.15.1 of the Collective Agreement, reproduced
above, the conclusion of the majority in the Parry case is
that the Employer is not restricted in its authority to
appoint to the unclassified service.
The effect of the amendment to the regulation was
considered by another panel of this Board in Lavoie.441/91
(Keller'). In that decision, the majority concluded that
Parry was wrongly decided. At p. 13 the Board states as
follows:
...we must conclude that in both Beresford and
Bressette the Board was saying that an appointment
to the unclassified service must be of the type
that distinguishes it from the "normal" "permanent"
positions in the classified service. In our view
Group 4 appointments, 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 [service]".
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. Thus 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.
The matter was further considered by this Board in
Porter, 428/90, 1640/90 and 1641/90. (Brandt), Sinah 331/91,
(Dissanayake), Justus, 879/91 (Knopf) and Jafri, 933/91,
935/91 (Dissanayake). In all of those decisions the Board
was dealing with a situation of an individual who alleged
that he or she was improperly appointed to the unclassified
service by virtue of the ongoing work of the position. In
all of those cases the Board took the same approach that
was taken in Parr~. The decisions contain somewhat
different reasons, however the essence of these decisions
is that the amendment to s. 6(1) of Regulation 881 which
created Group 4 authorizes the appointment of persons to
the unclassified service notwithstanding the fact that the
work performed is of a permanent, ongoing nature. These
decisions all focus on the provisions of s. 8 of the Public
Service Act and conclude that there is nothing in the
provisions of s. 8 that restricts the application of the
appointment power to "work of an irregular, unusual or
12
temporary nature" as it is referred to at p. 25 of the
Jafri decision.
The analysis contained in these decisions is somewhat
different, however in the Jafri decision, commencing at
p.22, the Board states as follows:
We agree with Re Lavoie and Re Bressette that the
regulatory power cannot be used to expand the
statutory power of appointment in section 8. However,
the more fundamental question is whether group 4
in fact constitutes an expansion of the statutory
power. In other words, is group 4 inconsistent
with section 8 of the Act?
Neither Bressette nor Lavoie points to any particular
language in section 8 which gives rise to a conclusion
that an appointment under that section is limited to
duties that do not form part of the employer's regular.
and on-going needs. Instead, both cases rely on the
now often-quoted statement in Re Beresford which is
quoted in the passage from Re Bressette set out above.
There, Vice-Chairperson Mitchnick observes that the
wording of section 8 of the Act would tend to support
Mr. Ryder's argument that" ... there must be some-
thing about the job in its initial Conception which
distinguishes it from the normal "permanent" position
in the unclassified service." [emphasis in the
original]
In our respectful opinion the foregoing observation
does not form part of the ratio decidendi in Re
Beresford. This view is supported by the language
used by the Vice-Chairperson Mitchnick. He makes no
definitive.finding in this passage. He simply
observes that the wording "tends to support" a
certain interpretation. Then he moves on to deal
with what he considers to be the "more important"
issue, namely the question of whether the appointment
fits within one of the groups in section 6 of the
regulations.
The Board goes on to refer to the conclusions in Beresford,
at p. 16, where that panel states, inter alia:
... 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 of the various situations encompassed by
the 3 Groups set out in the regulations, and
as contemplated by section 8 of the Public
Service Act. We find, therefore, that the
purported appointment of the grievor to the
"unclassified" as opposed to the "classified"
service was improper.
The Jafri decision goes on to state at p. 25:
Even if we consider that statement in question
from Beresford to be part of its ratio, we are
not at all convinced that "the something" that
distinguishes an unclassified appointment alluded
to by the Board is a reference to the natutre of the
duties to be performed by the appointee. It is of
note that what the Board envisaged was something
different about the job "in its initial conception".
[emphasis in the original]
At best, the observation in Beresford is vague.
Beresford, Bressett~ and. Lavoie do not point to
any statutory language that may suggest that section
8 appointments are limited to work of an irregular,
unusual or temporary nature. As already noted, we
are not able to find any such language. In the
absence of any statutory language to support such
a finding, we cannto agree that the words "something
different about the job in its initial conception" is
a finding by the Board that appointments under section
8 cannot be made for positions performing duties
required to carry on the employer's normal operations.
The use of the words "in its initial conception"
suggests that the Board may have been merely alluding
to the limitation in section 8 that the initial
appointment to the unclassified service must be for
no longer than one year.
The decision goes on to review some'of the decisions that
followed Beresford. At pp. 29-30 the decision concludes as
follows:
We find that there is no restriction in section 8
of the Act that appointments t6 the unclassified
service are limited to positions that perform duties
that are not a regular or ongoing part of the
employer's operation. To read such a limitation
into section 8 would in our view be to give the
provision a meaning that the language could not
reasonably bear. It follows from that finding that
we must also find that group 4 of the regulation
not inconsistent or in conflict with section 8 and
must be given effect to.
In Justus, the Board reached the same conclusion a~ in
Jafri. The argument that the amendment of Regulation 881
is beyond the scope of section 8 of the Public Service ~ct
and that there is a conflict between the Beresford decision
and the decisions in Parry and Porter was addressed at pp.
18-20 as follows:
Clearly, the regulations cannot repeal or amend the
enabling legislation. The Porter decision reviewed
these principles and concluded that the regulatory
amendment did not amend Section 8 of the Act because
nothing within the Act limits the duration of
appointments or requires them to be limited in
duration. But Porter and Parr~ suggested that the
·
Minister's powers had been expanded. The Union's
frustration with this conclusion is based on theI
fact that it seems in conflict with the conclu~ign
in Beresford that indicated that the language
Section 8.was significant:
· there must be something about the job
i~ its initial conception which distinguishes
it from the normal "permanent" position in
the classified srevice. (page 14)
Yet that same panel in the Beresfo~d decision
continued its analysis by mentioning that a
more persuasive interpreting factor was that
Section 6 of the Regulations set out various
fixed term type of appointments. It is further
to be recalled that when the Divisional Court
considered the Beresford/Mille¥ issue, it also
saw [section 6 of the Regulation] as an inter-
pretive guide, "elaborating upon and perhaps
defining the unclassified service to which Section
8 refers."
It is therefore clear that the Regulations can id
in the interpretation of, but not amend Section 8
of the Act. What then is the effect of the creation
of the Group 4 category? This Board came to
recognize that Groups 1-3 all have a temporary
nature to them by virtue of the time and sequential
references throughout the section. But Group 4 then
allows that anyone not within the Groups could fall
within Group 4. This effectively broadens the
concept and eliminates the ~lements of similarity
and/or the "temporary" characterization of the
unclassified appointments.
Thus we have to ask whether anything in Section 8
of the Act confines unclassified appointments to
a concept of a "temporary" nature as the Union
wishes us to accept. It does at the outset by
requiring that the first appointment may only be
for one year, but it specifically allows that
"subsequent" appointments may be for "any period".
This allows the Ministy to appoint people to
unclassified service for "any period". This allows
the Ministry to appoint people to unclassified
service for "any period" whether it falls within the
frames of Groups 1 to 3 or not.
But Section 8 does also demand that the appointment
be for a designated "period". It does at the
outset by requiring that the first appointment may
only be for one year, but it specifically allows
that subsequent appointments may be for "any
period". This allows the Ministry to appoint people
to unclassified service for "'any period" whether it
falls within the frames of Groups 1 to 3 or not.
But Section 8 does also demand that the appointment
be for a designated "period". It does not allow for
open-ended, unlimited or permanent type of
appointment to the unclassified staff. Otherwise
there would be no purpose to the language "for any
period on any subsequent appointment" [emphasis
added]. The period of the appointment is a critical
component to the appointment itself.
The Justus decision then goes on to!depart from the
conclusion in Porter that section 8:does not impose a
requirement that the appointment be.'for jobs that are
limited in duration. The decision goes on to state:
This panel finds, in Section 8, the requirement
that the "subsequent" appointment be for a
"period", but that the nature of that period
is not limited as it previously was to the
16
time restrictions set out in Groups 1 through 3.
This interpretation preserves the distinction
between the status of classified and unclassified
staff that is apparent in the nature of the bargain
between OPSEU and the government through their
collective agreement and that was so ably pointed
out by Mr. Ryder in his argument. It recognizes
the permanent ongoing nature of appointments to
the classified or civil service as distinct from
the limited appointments and employment claims of
the unclassified staff. This interpretation also
seems logical in light of the newly negotiated
Article 3.15.1 that allows, effective April 1, 1991,
that if the same work is being done on a full-time
basis, the position will have to be recognized as
within the classified service and duly posted and
filled as a vacancy within the classified work
force. This is a sensible balancing by the parties
of the right of the Employer to make contractually
limited, yet long-term unclassified appointments,
but checking it with the requirement to acknowledge
a situation where a full-time permanent position
exists if the need for the work continues beyond
two years.
In Ministry of Correctional Services & OPSEU (Union
Grievance) 1140/91 the Vice-chair of this Panel reviewed
these decisions and concluded that the analysis in Justus
and Jafri was correct and that it was to be preferred to
the approach taken taken in Lavoie. We note that the same
approach was taken in Ministry of Transportation & OPSEU
(Broom) 2293/90 (Gorsky). We are not persuaded that the
provisions of the Public Service Act compel the conclusion
that there was an obligation on the Employer to fill a
vacancy with classified staff in this instance. As well,
we are not persuaded that this conclusion compels the
conclusion that Bressette and Beresford were wrongly
decided. We note, as was noted in these latter two
17
decisions, that this matter is the subject of judicial
review at the present time, which will hopefully result in
its final resolution.
We now turn to the Union's second argument, relating to
Article 3.15.1 of the Collective Agreement which provides
as follows:
CONVERSION OF UNCLASSIFIED
POSITIONS TO CLASSIFIED POSITIONS
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 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 o~
Vacancies of New Positions).
Following its effective date, April 1, 1991, there are
two requirements that must be met before Article 3.15.1 can
have application. The first is that the same work has been
performed by an employee in the unclassified service for
two consecutive years and the second is that the ministry
has determined that there is a continuing need for the work
to be performed on a full-time basis. It is clear that the
first requirement was met. As of September 21, 1991, Ms.
Jenmings had been performing the work on a full-time basis
'for two consecutive years. However, we are not persuaded
that the second requirement, that there has been a
determination that there is a continuing need for the work
18
to be performed on a full-time basis, has been met. Ms.
Jennings was hired as a secondment replacement and three
of the classified employees who had been on se¢ondment were
scheduled to return at the time her contract was not
renewed. While it is apparent that there was work to be
performed that could have continued to have been performed
by Ms. Jennings, it is clear from the evidence of Ms.
Oliver that there was an acceptance of a longer turnaround
time. Whether or not work was performed by other persons
on overtime at some point during Ms. Jennings' absence, the
Employer is entitled to make a good faith decision to
decide to carry out the work on this basis. The evidence
did not establish that work equivalent to a full-time
position was carried out in this manner. Mr. Ryder
emphasized the facts that the request for the extension of
Ms. Jennings' position was made prior to the termination of
her contract, that there was no response and that her
return to employment on a full-time basis was finally
approved in support of his position that there had in fact
been a determination by the Employer to have the work
performed on a full-time basis. We are unable to accept
this position in the circumstances of this case. We agree
with Ms. Rae that the request for funding for a position
which was not approved for the reasons referred to by Ms.
Oliver in her evidence does not constitute a determination
by the Employer that there is a continuing need for the
19
work to be performed on a full-time basis. If there had
been no change in circumstances at the place of employment
.pending Ms. Jennings' departure and the subsequent approval
of her positon with the ensuing request for her to return
Mr. Ryder's argument would have been more persuasive. If
the ~ituation were a mere hiatus in full-time employment
pending approval of a position we would tend to agree with
Mr. Ryder that the second requirement in Article 3.15.1 had
been met. We think that he is correct in his submission
that a mere delay in approval should not affect the
characterization of the events as circumstances in which
the Employer had determined that there was a continuing
need to have the work performed on a full-time basis.
However, the essence of the situation of this case is that
Ms. Jennings was originally hired to replace employees on
secondments and thee return of full-time classified
employees in the fall of 1991 allowed the Employer to staff
the department at the same level that it had when Ms.
Jennings was on staff in September, 1991, thus obviating
the need for her position. Subsequent developments within
the department resulted in a decrease in staff which
allowed for Ms. Jennings' return, with. the staffing level
remaining at fiue employees. The request for her return
coincided with the departure of a classified employee to
assume Ms. Oliver's position. We agree with Mr. Ryder that
the fact that a position arises as a result of a secondment
2O
or secondments is not fatal to a claim by the Union that
Article 3.15.1 applies. However, in the case before us it
is our conclusion that the second requiremnt in Article
3.15.1 of the Collective Agreement, that the Employer had
determined that there was a continuing need for the work to
be performed on a full-time basis, has not been met and
therefore the Union's argument pursuant to Article 3.15.1
.must fail.
For all of these reasons, the grievance is hereby
dismissed.
Dated at Toronto, this 29day of ~arch , 1993.
S. L. Stewart - Vice-Chairperson
"I Dissent" (dissent attached>
E. Seymour - Member
M. O'Toole - Member
G.$.B. FILE 2228/91 - O.P.S.E~U. (Jennings)
- and-
THE CROWN IN RIGHT OF ONTARIO
(Ministry of Revenue)
DISSENT
Edward E. Se~our, Union Nominee
have read the Majority award and, with regret, I must dissent.
As stated by the Majority, the issues raised in this case were
initially addressed in the Beresford decision. As also stated by
the Majority, Regulation 881/89 was amended to include a new Group
4.
Following the amendment to 881, several cases have come before the
Grievance Settlement Board, and most of the decisions have gone
against the Union's position.
In response to those decisions, several union nominees, myself
included, have written dissents.
In view of this, t can add nothing to that which has already been
addressed with regard to previous awards.
EdWard E. SeYmour, Unnion Nominee