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HomeMy WebLinkAbout2001-0433.Group Grievance Stephens et al.02-11-25 Decision ~~~ om~o EA1PLOYES DE L4 COURONNE _Wi iii~~~i~T DE L ONTARIO COMMISSION DE REGLEMENT ~_II'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILEITELECOPIE. (416) 326-1396 GSB#0433/01 UNION#01B191 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Group Gnevance, Stephens et al ) Grievor -and- The Crown III RIght of Ontano (Mimstry of Commumty and SocIal ServIces) Employer BEFORE Owen V Gray Vice-Chair FOR THE UNION RIchrd Blair Counsel Ryder Wnght Blair and Doyle FOR THE EMPLOYER F erIlla MUIJ I Counsel Management Board Secretanat HEARING November 22,2002 2 Decision [1] Each of the gnevors has the same complamt. that her or hIS contmuous serVIce date does not take mto account employment at the Southwest RegIOnal Centre m the perIOd 1983 86 They say that for the first part of that penod the MmIstry treated them as "self-employed" contractors For the latter part of the perIOd they were paId by Chatham Kent FamIly ServIces from funds provIded by the MmIstry At the end of the penod they were appomted to the unclassIfied serVIce They allege that m legal substance they were m an employment relatIOnshIp wIth the MmIstry throughout the penod, and should have receIved credIt for It when they were later appomted to the classIfied serVIce [2] The employer says that the gnevances are untimely, that the gnevors were not m substance employees of the Crown durmg the perIOd m questIOn and that, m any event, they would not have been entitled to credIt for that perIOd even If they were m substance employees of the Crown. I was asked to address the latter pomt as a prehmmary Issue [3] Over the years, collective agreements between these parties have provIded that m calculatmg the length of contmuous serVIce of someone appomted to the classIfied serVIce, credIt wIll be gIven m certam cIrcumstances for certam kmds of Crown employment pnor to the appomtment to the classIfied serVIce Those collective agreements have not gIven and do not gIve credIt for every conceIvable form of employment by the Crown, however Except when the employer and umon have agreed otherwIse (and no such sIde agreement IS apphcable here) the only kmd of Crown employment that may be credIted m thIS way (dependmg on the cIrcumstances) IS employment m the "unclassIfied servIce", or the "pubhc servIce" as the unclassIfied serVIce was described for thIS purpose m collective agreements pnor to 1992 3 [4] VIce ChaIr Robert's 1985 decIsIOn m Konya, 494/83 made It clear that a Crown employee could only be regarded as employed m the "publIc servIce" If she or he had been appomted to that serVIce m the manner contemplated by the Public Service Act - that IS, the employee must have been appomted to that serVIce under that act by the LIeutenant Governor m CouncIl, the CIVIl SerVIce CommISSIOn or a mmIster The same IS true of employment m the "unclassIfied " serVIce [5] In Hood, 113/95, the gnevor sought credIt for a perIOd durmg whIch he had been employed by the MetropolItan Toronto and RegIOn ConservatIOn Authonty m a program funded by the MmIstry of Natural Resources The umon took the posItIOn there that, on the legal tests normally applIed to determme who the employer IS, the gnevor was m substance employed by the MmIstry m that penod. The umon recogmzed, however, that If that were true It would not be enough. To be mcluded m the gnevor's perIOd of contmuous serVIce the perIOd of employment m questIOn had to be employment m the unclassIfied serVIce The gnevor had not been formally appomted to the unclassIfied serVIce for the perIOd m questIOn. So the umon argued that because the gnevor was m substance an employee of the MmIstry and was performmg the sort of work that would be performed by employees m the classIfied or unclassIfied serVIce, he should have been appomted to the unclassIfied serVIce for the penod m questIOn and should therefore be treated for semonty purposes as though he had been so appomted [6] Although I found m Hood that the perIOd of employment m questIOn was not employment by the Crown on the usual tests, I also concluded that Moreover and m any event I am not persuaded that the Crown would have had an obhgatIOn to appomt the gnevor to the unclassIfied servIce even If the degree to whIch It funded hIS salary and dIrected hIs work had made hIm ItS employee from the perspectIve of tests apphed for other purposes m labour and employment law matters The umon s representatIve (hd not IdentIfy any provIsIOn of the collectIve agreement or of the PSA or of any other apphcable statute that supports the eXIstence of such an obhgatIon. [7] Umon counsel noted that Hood dealt wIth an allegatIOn that nommal employment by a thIrd party was m substance employment by the MmIstry, but 4 not wIth a sItuatIOn hke thIS one m whIch nommal self-employment was alleged to be m substance employment by the Mmlstry He acknowledged that he could IdentIfy nothmg pertment m the dlstmctIOn. Nor can I The allegatIOn IS the same that whatever the form of the arrangement, the gnevor was m substance an employee of the Crown. The dIfficulty IS the same whether they were Crown employees or not, the gnevors here were not appomtees to the unclassIfied serVIce durmg the perIOd m questIOn. [8] No doubt the gnevors feel that It IS unfmr that they could be engaged between 1983 and 1986 to do the very work they dId thereafter as unclassIfied employees wIth out gettmg credIt for that mltIal perIOd. In the hearmg, umon counsel stated that the umon does too If there IS unfmrness, It IS m proVISIOns of the collectIve agreements, whIch the Gnevance Settlement Board has no JunsdlctIOn to change [9] As I observed m Hood, m formulatmg theIr test for credIt for employment pnor to appomtment to the classIfied serVIce m the calculatIOn of semonty, the umon and the employer have agreed that employees wIll get credIt only for certam kmds of employment by the Crown. Even If the gnevors here could be saId to have been m an employment relatIOnshIp wIth the Crown m the perIOd m questIOn, It was not the kmd of employment for whIch credIt was or IS to be gIven under the partIes' collectIve agreements [10] Accordmgly, thIS gnevance was dIsmIssed orally at hearmg Dated at Toronto thIS 25th day of November, 2002 ~V VIce ChaIr