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Home My WebLink About1993-2040.Archer.94-07-15 ; - -4~> - EMPLOYES DE LA COURONNE ONTARIO CROWN EMPLOYEES DEL 'ONTARIO ,. GRIEVANCE COMMISSION DE } 1111 , .. SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREELWEST SUITf' 2100, TORONTO, ONTARIO, M5G lZ8 ,TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2/00 TORONTO (ONTARIO) MSG lZ8 FACSIMILE/TELECOPIE (4/6) 326-1396 2040/93 IN THE MATTER OF AN ARBITRATION J Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSE;U (Archer et al) Grievor ( - and - The Crown in Right of Ontario (Management Board secretariat) Employer BEFORE M. watters Vice-Chairperson ) FOR,THE B. Ahad GRIEVOR - Grievance Officer Ontario Public Service Employees Union FOR THE C. Currie EMPLOYER Staff Relations Officer ~anagement Board Secretariat HEARING June 30, 1994 .J \ - ..~ i I This proceeding arises as a consequence of grievances filed \ by seven (7) unclassified employees who at the _material time were employed by the Management Board Secretariat The grievances, all dated October 1 , 1993, read in part STATEMENT OF GRIEVANCE I The Employer is in violation of Article 3 and Article 4 of the collective agreement I was dismissed without cause SET~LEMENT DESIRED Reinstatement with full entitlement to all rights and benefits The grievances were processed and heard pursuant to the Expedited Arbitration Procedure agreed to by the parties \ ) At the commencement of the hearing, I was advised that one \ , [, ( 1 ) of the employees had given written notice of his d~sire to withdraw the grievance I was further advised that the parties were awaiting written confirmation to ~he same effett from two (2) other grievors The hearing continued with respect to the grievances of John Rego, Abdool Shameer and Leon Archer The representative of the Un i.on informed this Arbitrator that another grievor, Vincent Man, could not be present at theh'earing She indicated that Mr Man would reserve on his options until he had an opportunity to review any declsion made with respect' to Mr Rego and Mr Shameer '~ ,. 1 - - I '-. rhe gr' i evors I who are the subject of this Aw~rd, each received notice dated June 17, 1993 that their unclassified - contracts would be terminated effective September 18, 1993 Thi~ notice was gi~en by the Employer pursuant ~o Regul~tion 327 under the Employment Standards Act Sixteen ( 1 6 ) weeks prior notice w~s given to each grievor The Uninn did not challen~e the propriety of the notices The history of the grievors unclassified status isas follows 1 John Re~w Contract from June 1/92 - Nov 30/92 as Clerk 2 Supply Superseded by Contract from Sept 1/92 - Nov 30/92 as OA-6 Contract from Dec 1/92 - Jan 31/93 as OA-6 Contract from Feb 1/93 - July 31/93 as OA-6 Contract from Aug 1/93 - Sept 18/93 as OA-6 Mr R,ego 's last contract was terminated as a classifted employee returned to her home position Each of the above unclassified I contracts reflected appointments to Group 4 under section 6 of Regulation 977 of the Public Service Act. 2 Abdool Shameer Contract from June 1/92 - Nov 30/92 as Clerk 2 Supply Contract from Dec 1/92 - Jan 31/93 as Clerk 2 Supply Contract from Feb 1/93 - July 31/93 as Clerk 2 Supply Contract from Aug 1/93 - Sept 18/93 as Clerk 2 Supply Mr Shameer I s last contract was terminated due to the elimination of the position Each of the above unclassified contracts also reflected appointments to Group 4 2 ,- \ 3 Leon Archer Contract from Oct 31/88 - Apr 30/89 as Clerk 2 Supply Contract from May 1/8i - Oct 31/89 as Clerk 2 Supply Contract from Nov 1/89 - Apr 30/90 as Clerk 2 Supply Contract from May 1/90 - Oct 31/90 as Clerk 2 Supply Contract from Nov 1/90 - April 30/91 as Clerk 2 Supply Contract from Apr 21/91 - Aug 31/91 as Clerk 2 Supply ) Contract from Sept 1/91 - March 31/92 as Clerk 2 Supply Contract from Apr 1/92 - June 30/92 as Clerk 2 Supply Contract from/July 1/92 - Oct 30/92 as Clerk 2 Supply Contract from \Oct 30/92 - Dec 31/92 as Clerk 2 Supply Contract from Dec 31/92 - Mar 31/93 as Clerk 2 Supply Contract from Mar 31/93 - July 31/93 as Clerk 2 Supply \ I Contract from Aug 1/93 - Sept 18/93 as Cler~ 2 Supply I Mr Archer's final contract was terminated due to the elimination of the position The first six (6) of the above contracts reflected appointments to Group 3 The two (2} following reappointments did not refer to a specific Group The contracts did, however, note no change in status The balance of the contracts from J~ly 1 , 1~92 onwards referred specifically to Group 4 At the outset of the hearing, the Employer's representative raised a preliminary question as to my jurisdiction over the grievances Simply stated, she asserted that each of the grievors had been properly appointed to Group 4 and that they simply ceased to be a pUblic servant at the end of their final contractual term pursuant to section 9 of the Public Service Act r' I was, in substance, urged to conclude that they were not ') entitled to any remedy given that proper notice of termination of employment had been provided in each case The Employer relied on the Divisional Court's disposition of the Judicial review \ 3 -, applications in Parry, 237/91 ( Low) , SinQh, 333/91 (Dissanayake), \ Porter, 428/90 et al (Brandt) , and Lavoie, 441/91 (Keller) in support of this position The Orders of the Divisional)Court ln "- respect of these matter~ are dated March 15, 1993 The Union's representative ackn9wledged that the Divisional Court decisions are ap~licable to the grievances of Mr Rego and Mr Shameer She stated, however, that these grievors felt they were unfairly treated by the Employer given that they had been good employees in the past Mr Rego gave evidence as to his I prior attendance and performance record The Employer's representative acknowledged that the grievors were all good I employees She maintained, however, that the decisions in issue were taken for valid financial and organizational reasons It was the Unionl~ further position that Mr Archer's situation was distinguishable from that of the above two ( 2 ) grievors The Union's representative emphasiz~d ,that the first six (6) of his unclassified appointments were to Group 3 She submitted that these appointmeQts were improper as Mr Archer, in that period, did not work on a seasonal basis but, rather, worked continuously I between October 31 , 1988 and August 31, 1991 The Union alsa referenced article 3 15 1 of the collective agreement It was suggested that this provision may have obligated the Employer to post the position filled by Mr Archer and that, if so, he would be entitled to a remedy similar to that awarded in 4 '. ( , J Canete, 2192/90 (Simmons) In that instance the Board ordered ) that the unclassified em~loy~e be placed on the surplus 1 i'st in the classified service It was suggested that, if I found merit in these arguments, the matter should be referred back to the parties so that they would have a fuller opportunity to assess the relevant evidence, or to possibly resolve the dispute After considering the respective positions~ I find as follows .-J ( i ) the final unclassified contracts of Mr Rega and Mr Shallleer were properly terminated for valid financial and otganizational 1 reasons effective September 18, 1'993 Pursuant to section 9 of ! the PUblic Service Act, they ceased to be a pUblic servant on that date They are, therefqre, not entitled to any relief I accept that the Divisional Court's decision is applicable to these two t 2 ) grievors J ( i i ) Mr Archer was appointed as a Gro~p 3 unclassified emp~oyee for his initial six (6 ) contracts These appointments occupied the, period October 1 , 1988 to August 31, 1991 It would seem I that these appointments were improper as he then worked on a cont'; nuous, rather than a seasonal, basis Tn any event, I have not been persuaded that this grievor now possesses any rights or entitlement flowing from the nature of those appointments Clearly, they could have been Challenged at the time Further, I think it material that the last five ( 5 ) appointments, commencing I July 1 , 1 992 , were properly made to Group 4 ) 5 ) -- I "? (J I It is unclear from a reading of Mr Archer's contracts whether he performed the same work in the unclassified service / for a period of at least twq ( 2 ) consecutive yeats The contracts consistently fa i 1 to record the reason for contract, the employee replaced, the position code of vacancy ( if app 1 i cab 1 e) J the schedule number, and the organizational chart number Additionally, the documentation filed does not disclose when, if ever, Mr Ardher was told that the Employer determined there was no longer a continuing need for the work to be performed The termination notice simply speaks to the termination date without providing a reason for the decision Accordingly, I am satisfied that ,?-"y rights Mr Archer may have \ vis a vis article 3 15 1 may be determined through the instant grievance If th~ Employer's determination had been clearly stated in the notice of termination, it lS very likely that the grievor's present claim would be untimely In view of the above, I elect to remit the matter back to the parties to detetmine whether the evidence supports a claim , ), that thlS grievor performed the same work for a perlod of at least two ( 2 ) consecutive years within the meaning of article I 3 15 1 I reserve on the preliminary issue, until Mr Archer's rights under 3 15 1 are clarified It appears to this Arbitrator that the two ( 2 ) issues cannot be neatly separated If the aforementioned provision is found to be applicable to Mr I Archer's circumstances, r will need to hear further argument on 6 { ~ ,~ ,I the issue of remedy Clearly, such issue 1S complicated by the fact, that the position has been eliminated Additionally, I have some reservations that the remedy claimed by the Union would p-ffectively by-pass arti,rle 4 of the collective agreement In my judgment, the dec i s -j on 1n Canete is distingulshable from this case as, there, the unclassified employee was working pursuant to an improper appointment as of the date of terminati'on That I award also did not address the impact of article 3 15 1 \ For all of the above the grievances of Mr Rego and reasons, Mr Shameer are denied I refer Mr Archer's case back to th~ parties for the purpose noted above The matter may be reschedul~d for an expedited hearing at the request of either party I remain seized of this matter ) Dated at Windsor, Ontario this 15th day of J u 1 Y , 1,994 (io. V Wca:;b;,-5, I M V Watters j I 7