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HomeMy WebLinkAbout2001-0884.Balachandran.03-04-08 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0884/01 0885/01 0886/01 0887/01 UNION# 01B289 01B290 01B291 01B292 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Balachandran) Grievor - and - The Crown In RIght of Ontano (Mimstry of Consumer and BusIness ServIces) Employer BEFORE Bram HerlIch Vice-Chair FOR THE UNION George RIchards Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER MeredIth Brown Counsel Management Board Secretanat HEARING March 12,2003 2 DECISION Background Four gnevances have been referred to me for determmatIOn. The gnevor commenced her employment wIth the Mimstry on January 24 2000 She was appomted to the publIc servIce under the terms of an employment contract whIch was effectIve from January 24 2000 and was to expIre on March 31 2000 Through a senes of renewals, however her status as an unclassIfied employee contmued untIl August 24 2001 when her most recent contract expIred. By letter dated Apnl 26 2001 the employer had advIsed the gnevor that her contract (then set to expIre on Apnl 30 2001) was bemg renewed untIl August 24 2001 In that same letter she was also explIcItly advIsed at that her contract would not be renewed beyond August 24 2001 As had been mdIcated, the gnevor's contract expIred on August 24 2001 and her employment was consequently termmated. On the day pnor to the contract's scheduled expIry four gnevances were filed on behalf of the gnevor Each of these seeks, m varymg ways, to dIrectly or at least effectIvely reverse that termmatIOn. In the first gnevance (whIch I wIll refer to as the termmatIOn gnevance) the gnevor's termmatIOn IS dIrectly challenged. The Umon also suggested that the employer had not acted m good faith m effectmg that termmatIOn. In the second gnevance (whIch I wIll refer to as the postmg gnevance) It IS alleged that the gnevor was demed her nghts to compete for classIfied posItIOns under the terms of ArtIcle 6 of the collectIve agreement. The thIrd gnevance (whIch I wIll refer to as the converSIOn gnevance) refers to ArtIcle 31 15 of the collectIve agreement m support of the claim that, pnor to the termmatIOn of her contract, the gnevor's status ought to have been converted to that of a classIfied employee under the terms of the collectIve agreement. 3 In the fourth and final gnevance (whIch I wIll refer to as the dISCnmInatIOn gnevance) It IS alleged (as amplIfied by the umon representatIves at the heanng) that the employer's treatment of the gnevor and ItS deCIsIOn to termInate her employment were taInted by dISCnmInatory motIves prohIbIted under the terms of ArtIcle 3 of the collectIve agreement. The employer IndIcated that It wIshed to advance prelImInary obJectIOns seekIng to dIsmIss each of these gnevances as InarbItrable In essence, the employer claimed that the four gnevances were but four separate attempts to challenge the propnety of the gnevor's termInatIOn. As an unclassIfied employee, however the employer asserts that the gnevor's termInatIOn sImply flows from the conclusIOn of her contract and (relYIng on legal authonty whIch wIll be canvassed below) thIS Board sImply lacks the JunsdIctIOn to InqUIre Into the matter DespIte that general opemng posItIOn, It also became clear that the employer was equally of the VIew that, even If thIS Board has the JunsdIctIOn to InqUIre Into some or all aspects of some or all of the gnevances, the facts whIch the umon asserts, even If accepted as true and provable, do not make out any case for concludIng that there has been any vIOlatIOn of the collectIve agreement. In that context the heanng proceeded as follows Both partIes were provIded wIth a full opportumty to descnbe the nature of the eVIdence they Intended to call and rely upon. We heard legal submIssIOns from the partIes both wIth respect to the employer's prelImInary obJectIOns and the claim that the umon' s gnevances, even acceptIng the facts asserted as true and provable, faIled to establIsh any vIOlatIOn of the collectIve agreement. Thus, to the extent the employer's prelImInary obJectIOns have not fully dIsposed of these matters (and, as wIll be clear shortly they have not) I have accepted the umon's allegatIOns as true and provable for the purposes of determInIng whether the gnevances dIsclose any vIOlatIOn of the collectIve agreement. The Preliminary Objection(s) SubJect to certaIn claims about the gnevor's employment pnor to January 2000 (whIch wIll be dealt wIth In the specIfic context of the conversIOn gnevance later In thIS decIsIOn), It was common 4 ground that the gnevor's employment as an unclassIfied employee ran from January 24 2000 to August 24 2001 The employer relIes on sectIOn 9 of the Public Service Act. It provIdes 9 Termination of Employment - A person who IS appoInted to a posItIOn In the publIc servIce for a specIfied penod ceases to be a publIc servant at the eXpIratIOn of that penod, We were also referred to the decIsIOns of thIS Board In Merson 16/93 299/93 and 1162/93 (Gray) Gallagher 152/94 (Gray) and Gagnon 1067/96 (Roberts) as support for the proposItIOn that the non-renewal of an unclassIfied employee cannot be the subJ ect of the gnevance and, more partIcularly even where the non-renewal IS said to have been effected In bad faith, that thIS Board IS wIthout JunsdIctIOn to reVIew that decIsIOn. I have carefully revIewed the authontIes relIed upon by the employer as well as a number of other decIsIOns of thIS Board (whIch are cIted and dIscussed In the authontIes presented by the employer) Those addItIOnal decIsIOns Include Milks 1000/92 (Low) Pitirri 1685/92 et al (Kaplan) and Ghiandoni 518/94 519/94 (Mikus) A reVIew of those authontIes certaInly confirms the soundness of the general proposItIOn that the non-renewal of the contract of an unclassIfied employee IS beyond reVIew by thIS Board. That general proposItIOn IS not, however wIthout exceptIOns And there may be some lack of utter clanty regardIng the eXIstence and scope of those exceptIOns A very bnef reVIew of the cases wIll serve to elaborate Each of these cases Involved the non- renewal of the contract of an unclassIfied employee I consIder them In chronologIcal order It IS undoubtedly the earlIest of these cases, Milks whIch provIdes the strongest support for the employer's posItIOn. In that case the gnevance challengIng the non-renewal of an unclassIfied employee was dIsmIssed pursuant to a prelImInary obJectIOn much lIke the one currently before me The Board clearly artIculated the VIew that where an unclassIfied employee's fixed term contract expIres, the employment relatIOnshIp IS severed by operatIOn of sectIOn 9 of the Public Service Act The Board went on, however to reJect the proposItIOn that the presence of bad faith (as was alleged In 5 that case) would gIve thIS Board JunsdIctIOn to renew the contract or to Impose a new one upon the partIes In the Pitirri case, however a sImIlar prelImInary obJectIOn was dIsmIssed where the gnevance alleged Improper dISCnmInatIOn In vIOlatIOn of the collectIve agreement. That Impugned conduct was alleged to have transpIred pnor to the expIry of the unclassIfied contract and was dIrectly related to the gnevor's ultImate claim of unJust dIsmIssal SImIlarly In the Merson case the prelImInary obJectIOn was dIsmIssed where the facts relIed upon arose pnor to the expIry of the contract and where It was alleged that the non-renewal was motIvated by grounds specIfically prohIbIted under the collectIve agreement. The Board's decIsIOn In Ghiandoni contaIns perhaps the clearest authonty supportIng thIS Board's abIlIty to reVIew a non-renewal agaInst the standard of bad faith. The Board, reVIeWIng an earlIer decIsIOn (Jafri 933/91 (DIssanayake)) offered the folloWIng at page 14 DealIng first wIth the Issue of the JunsdIctIOn of the Board, It IS clear that the Jafri decIsIOn stands for the proposItIOn that If an employer's decIsIOn not to renew the contract of an unclassIfied employee was made for reasons whIch resulted In the undermInIng or abndgment of any nghts of an employee under the collectIve agreement, the employer's actIOns are revIewable by a Board of ArbItratIOn. If the employer acted In such a manner the Jafri Board equated It to "bad faith" That panel stated that If the employer was retalIatIng agaInst the gnevor for seekIng assIstance from the Umon by not reneWIng hIS contract, the exerCIse of the employer's authonty would have the effect of undermInIng the gnevor's nghts to gneve If the Umon can prove that the employer's decIsIOn In the Instant case was made In bad faith, It would be a dIrect lInk to the undermInIng of the gnevor's collectIve agreement nghts On these grounds, thIS board has the JunsdIctIOn to reVIew the reasons for the Employer's decIsIOn not to renew the gnevor's contract. In ultImately upholdIng the ments of gnevance the Board In that case concluded that the gnevor's contract was not renewed, In part, because of the exerCIse of hIS nghts under the collectIve agreement. The Gallagher decIsIOn IS perhaps less useful for our purposes In that case the Board determIned that the Impugned conduct - alleged to be contrary to the dISCnmInatIOn provIsIOns of the collectIve agreement - occurred after the expIry of the unclassIfied contract. The gnevance was 6 therefore dIsmIssed on the basIs that the employer's treatment of an employee (presumably even If It IS otherwIse prohIbIted by the collectIve agreement) whIch occurs after the expIry of the contract (and hence the employment relatIOnshIp) IS sImply not governed by the collectIve agreement. I note that the specIfic questIOn of whether an alleged collectIve agreement vIOlatIOn occurs pnor or subsequent to the expIry of the employment contract IS one whIch may Itself be the subJect of controversy Does the complaInt tYPIcally anse only after the contract has expIred and not been renewed? Or IS there logIcally a pOInt at whIch, pnor to ItS expIry an actIve decIsIOn IS made not to renew? Fortunately thIS IS one Issue we need not address In thIS case The decIsIOn to not renew the gnevor's contract was clearly taken and commumcated to the gnevor well before ItS expIry and at a tIme when the gnevor enJoyed the protectIOn of the collectIve agreement. The most recent of the cases consIdered IS Gagnon The Board In thIS case appears to have deftly combIned an apparent antIpathy towards the general proposItIOn that all claims of bad faith non- renewal of fixed term contracts wIll be revIewed by thIS Board wIth the dIsmIssal of the employer's prelImInary obJ ectIOn In that case The Board descnbed ItS approach as follows I have decIded to take JunsdIctIOn of the ments of thIS gnevance but not because I am persuaded that claims of "bad faith" non-renewals of the contracts of members of the unclassIfied servIce are revIewable upon theIr ments In the present case, Mr McFadden alleged that management was In bad faith when It delayed untIl It was too late for the gnevor to Improve notIce that the number of tImes she declIned avaIlable work had become a matter of senous concern. The Gnevance Settlement Board certaInly has JunsdIctIOn to entertaIn the ments of a claim of bad faith exerCIse of management nghts Later In the decIsIon, the Board specIfically reJected the assertIon that ItS JunsdIctIon extends to the pOInt of reVIeWIng all claims of bad faith non-renewal of fixed term contracts but also offered the folloWIng When, however the umon claims that a decIsIOn not to renew was part-and- parcel of a bad faith abndgment of a collectIve agreement nght possessed by a member of the unclassIfied servIce whIle employed, the Board, of course, wIll take JunsdIctIOn. HavIng revIewed thIS Junsprudence and the provIsIOns of the Public Service Act and havIng consIdered the submIssIOns of the partIes, I come to the folloWIng conclusIOns 7 As a general proposItIOn, the non-renewal of the fixed term contract of an unclassIfied employee IS not the proper subJect of a gnevance And whIle It may be equally sound law that there IS no automatIc reVIew of such a decIsIOn agaInst a standard of bad faith, there IS ample authonty to support the VIew that where the non-renewal of a contract IS "part and parcel" of a bad faith abndgment of a collectIve agreement nght possessed by a gnevor or where the decIsIOn not to renew the contract was made for reasons whIch resulted In the undermInIng or abndgment of any other collectIve agreement nght, the Board wIll InqUIre Into the complaInt. Further I note and adopt the specIfic acknowledgment In Gagnon that the GSB has the JunsdIctIOn to entertaIn the ments of a claim of bad faith exerCIse of management's nghts Put perhaps somewhat more sImply where the non-renewal of a contract engages an alleged vIOlatIOn of some other provIsIOn of the collectIve agreement (whIch may Include an alleged bad faith exerCIse of management's nghts dIStInct from the non-renewal Itself), thIS Board wIll InqUIre Into all of the CIrcumstances to determIne whether there has been any vIOlatIOn of the collectIve agreement. In applYIng those conclusIOns to the Instant case I am persuaded that the employer's prelImInary obJectIOn(s) must be dIsmIssed. FIrst of all, whIle there may be practIcal ment and substance to the employer's claim that each of the four gnevances before me duplIcates the essentIal umon effort aimed at preservIng or reInstatIng the gnevor's employment relatIOnshIp each of the gnevances IS dIfferently framed and raises Issues whIch warrant separate treatment. In partIcular the claims asserted In the converSIOn and postIng gnevances (whatever theIr ments) raise specIfic provIsIOns of the collectIve agreement apart from the Issue of non-renewal Those Issues cannot be dIsmIssed by the broad sweep of the prelImInary obJectIOn urged by the employer The termInatIOn and dISCnmInatIOn gnevances are perhaps more readIly subJect to the employer's motIOn. However each of these gnevances, as filed and presented by the umon, fit the mould of cases whIch wIll engage thIS Board's reVIew ThIS IS clearly the case where It IS alleged (in the dISCnmInatIOn gnevance) that the decIsIOn to not renew the gnevor's contract was part and parcel of the employer's alleged contraventIOn of ArtIcle 3 I confess that I am less confident In arnVIng at a sImIlar conclusIOn In respect of the termInatIOn gnevance, largely because the specIfic nature of the alleged vIOlatIOn of the collectIve agreement (presumably In the nature of bad faith - perhaps even an 8 alleged bad faith exerCIse of management' s nghts) remaIns less than clear to me (thIS wIll be explored a lIttle more fully below) In the cIrcumstances, the employer's prelImInary obJectIOn In relatIOn to each of the gnevances IS hereby dIsmIssed. I turn now to consIder the ments of each of the gnevances and, In partIcular to determIne whether these gnevances, assumIng and acceptIng the facts alleged by the umon, can be seen to dIsclose any vIOlatIOn of the collectIve agreement. The Termination Grievance I have already IndIcated my confirmatIOn of the general pnncIple that the non-renewal of the contract of an unclassIfied employee IS not the proper subJect of a gnevance Thus, to the extent that thIS gnevance has survIved the employer's prelImInary obJectIOn, that IS because It alleges bad faith was part and parcel of the employer's decIsIOn to not renew the gnevor's contract. However I find It extremely sIgmficant that the umon dId not explIcItly allege a vIOlatIOn of any specIfic provIsIOn of the collectIve agreement In support of ItS posItIOn. In that regard (and as perhaps suggested earlIer In thIS decIsIOn), I may have been overly generous to the umon In declImng to allow the employer's prelImInary obJectIOn In relatIOn to thIS gnevance In consIdenng the nature of the umon's claim under thIS gnevance, there IS, however sImply no doubt In my mInd that the gnevance must be dIsmIssed. The umon acknowledges It has no specIfic eVIdence establIshIng bad faith, but asks me to Infer bad faith from the facts It asserts And, essentIally the umon' s case In that regard amounts to no more than the folloWIng. EVIdence (whIch mIght have to be gleaned to some extent from employer records the umon would seek to have produced) wIll demonstrate that the work the gnevor performed or work sImIlar to It contInued to be performed after her departure to an extent that would establIsh an ongOIng need for the work. In that context, I am asked to conclude that the decIsIOn to not renew the gnevor's contract was made In bad faith. 9 I need not provIde a full catalogue of the shortcomIngs of the umon' s posItIOn. It IS sufficIent to note that, even assumIng the umon could establIsh an ongOIng need to perform the gnevor's work (a proposItIOn not embraced by the employer) It IS not clear to me that such a conclusIOn, In turn, leads to a findIng of employer bad faith. The Junsprudence surroundIng the non-renewal of unclassIfied contracts IS rooted In the proposItIOn that there IS no nght or entItlement to renewal It straInS lOgIC to accept on the one hand, that contracts need not be renewed and to assert, on the other that when they are not, bad faith ought therefore to be Inferred. Moreover there IS a multIplIcIty of avenues avaIlable to the employer both wIth respect to the manner In whIch It orgamzes ItS work and the tImIng of ItS deCISIOns In the absence of specIfic eVIdence suggestIng bad faith, I do not see how the assertIOn that work sImIlar to the gnevor's was performed after the expIry of her contract can, In and of Itself, support any conclusIOn of bad faith. The termInatIOn gnevance must therefore be dIsmIssed. The Job Posting Grievance The J ob postIng gnevance refers to a number of postIngs and "non-postIngs" To the extent any actual Job competItIOns are referred to they occurred well after the termInatIOn of the gnevor's employment and entItlement to claim the benefit of the collectIve agreement. The umon pOInts, however to a number of Instances where It asserts that J ob competItIOns ought to have but dId not occur Had the competItIOns taken place dunng the gnevor's tenure, she would have been entItled to compete And whIle that entItlement IS, of course no guarantee of success, the gnevance claims, among other thIngs, that the gnevor ought to be awarded a full-tIme classIfied posItIOn as a remedy for the alleged vIOlatIOn. EssentIally the umon pOInts to the departure of three classIfied employees (due to permanent reassIgnment or retIrement) to claim that up to 3 vacanCIes ought to have been posted dunng the course of the year 2000 There IS no questIOn that when posItIOns are posted, bargaInIng umt employees (includIng unclassIfied employees) have the nght to partIcIpate In the competItIOn. But whIle ArtIcle 6 of the collectIve agreement clearly sets out what IS to happen (by way of postIng and competItIOn) once a 10 vacancy occurs or a new classIfied posItIOn IS created, I was not pOInted to anythIng In the collectIve agreement whIch determInes precIsely when there IS such a vacancy As already noted, the employer has a broad range of optIOns avaIlable to It - both wIth respect to tImIng and the manner In whIch It opts to get ItS work done There are no provIsIOns In the collectIve agreement - at least none were pOInted to - whIch eIther freeze employee complement or specIfically regulate ratIOs of employee categones or oblIge the employer to "declare a vacancy" In specIfied cIrcumstances (compare the converSIOn provIsIOns of the agreement, dIscussed below) No authontIes were advanced to support any such proposItIOn. In the absence of any such specIfic collectIve agreement provIsIOns or any senous argument that the relevant movements of classIfied employees automatIcally and ImmedIately gIve nse to an oblIgatIOn to declare and therefore post a vacancy I am not persuaded that there IS any basIs for the postIng gnevance to succeed. The postIng gnevance must therefore be dIsmIssed. The Conversion Grievance In the converSIOn gnevance, the umon relIes on the provIsIOns of ArtIcle 31 15 It IS unnecessary for me to set out or consIder that provIsIOn In great detaIl It IS sufficIent for our present purposes to note that, In certaIn prescnbed cIrcumstances, the artIcle contemplates the creatIOn of a posItIOn WIthIn the ClassIfied ServIce and the converSIOn of the status of the Incumbent In the posItIOn from unclassIfied to classIfied. However among the vanous condItIOns reqUIred for such a converSIOn IS the one found In the opemng words of the artIcle Where the same work has been performed by an employee In the UnclassIfied ServIce for a penod of at least two (2) consecutIve years In sImple terms, an unclassIfied employee must perform the same work for at least 2 years In order to be elIgIble to benefit from any converSIOn. It IS clear from the facts outlIned above that the gnevor's tenure wIthIn the UnclassIfied ServIce dId not meet thIS mImmum servIce reqUIrement and that she therefore has no basIs upon whIch to claim any entItlement under the artIcle 11 NeIther am I persuaded that the gnevor's pnor employment yt,ith a different employer IS of any relevance even where that employment resulted In the gnevor performIng the same work (a fact whIch, I note IS dIsputed) for the reqUIsIte penod. The collectIve agreement refers to an employee who has been in the unclassified service for at least two years Further and despIte the valIant argument advanced by the umon representatIve that I consIder more tradItIOnal common law approaches to IdentIfYIng the employment relatIOnshIp I cannot Ignore the provIsIOns of sectIOns 8 1 (2) and 8 1 (10) of the Public Service Act (2) Status as a public servant - An IndIVIdual IS not consIdered to be a publIc servant unless he or she has been expressly appoInted as such by the LIeutenant Governor In CouncIl, the CommIssIOn, a mImster or a desIgnee of a mImster (10) No implied appointment - In the absence of an express appoIntment of an IndIVIdual as a cIvIl servant, publIc servant or Crown employee the IndIVIdual's appoIntment shall not be Inferred solely from the CIrcumstances of hIS or her employment. In short, there IS sImply no basIs to conclude that the gnevor had the reqUIsIte servIce as an unclassIfied employee to qualIfy for converSIOn under the collectIve agreement. There IS no basIs to conclude that the duratIOn of her unclassIfied servIce IS anythIng dIfferent from or addItIOnal to the penod from January 2000 to August 2001 The converSIOn gnevance must therefore be dIsmIssed. The Discrimination Grievance The dISCnmInatIOn gnevance makes reference to ArtIcle 3 of the collectIve agreement. ArtIcle 3 1 provIdes 3 1 There shall be no dISCnmInatIOn practIced by reason of the race, ancestry place of ongIn, colour ethmc ongIn, cItIzenshIp creed, sex, sexual onentatIOn, age, mantal status, famIly status, or handIcap as defined In sectIOn 10 (1) of the Ontano Human Rights Code (OHRC) 12 The umon (as It dId In relatIOn to the allegatIOns of bad faith) conceded that It had no specIfic eVIdence of dISCnmInatIOn upon whIch It relIed. Rather It suggested that dISCnmInatIOn was to be Inferred from the facts of the case In that regard, the umon pOInted to the fact that the gnevor was demed an IntervIew In a J ob competItIOn whIch took place In March 2002 and to the demal of the gnevor's request to partIcIpate In certaIn career development opportumtIes/assIgnments dunng her tenure as an unclassIfied employee Of course, the competItIOn pOInted to took place some 7 months after the termInatIOn of her employment at a tIme when the gnevor had long ceased to be covered by the terms of the collectIve agreement. And as far as the career development opportumtIes were concerned, there IS sImply nothIng In the facts asserted by the umon whIch IS InCOnsIstent WIth the conclusIOn that such a demal was a functIOn of the gnevor's status (as an unclassIfied employee hIred, accordIng to the employer to perform a partIcular set of tasks) not an example of Improper dISCnmInatIOn. But even more dammng to the umon' s posItIOn IS the fact that It was unable to clearly IdentIfy any prohIbIted ground of dISCnmInatIOn said to be at play The umon suggested somewhat tentatIvely that perhaps It was the gnevor's status as a member of a vIsIble mInonty whIch was operatIve But the umon conceded almost ImmedIately that the gnevor was less than umque among her fellow employees In that regard and no specIfic comparator was posIted to found any basIs for a claim of Improper dISCnmInatIOn. Indeed, the employer advIsed (and the umon dId not dIspute) that another employee was hIred Into an unclassIfied posItIOn sImIlar to the gnevor's at the same tIme as the gnevor and that both of theIr contracts were subsequently termInated at the same tIme There was nothIng In the umon's presentatIOn whIch suggested that the gnevor was treated any dIfferently from the other employee wIth respect to eIther her hmng or tenure In short, I am sImply not persuaded that there IS anythIng In the facts asserted by the umon whIch can support any findIng of Improper dISCnmInatIOn. The dISCnmInatIOn gnevance must therefore be dIsmIssed. 13 Summary In summary and for the reasons set out above, both the employer's prelImInary obJectIOns and the umon' s gnevances are all hereby dIsmIssed. Dated at Toronto thIS 8th day of Apnl 2003 ~ ~L~~~~l: _. , ... .. r~ . :.. I ... .. .:" Bram HerlIch Vice-Chair