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HomeMy WebLinkAbout1976-0072.Johnson and Szpakowski.79-07-04IN. THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Johnson and Szpakowski) and The Crown in Right of Ontario Ministry of Culture and Recreation (Ontario Science Centre) Before: Professor K. P. Swan Vice-Chairman Mr.'A. Fortier Member Mr. R. Cochrane Member For the Grievor: Mr. 6. Richards Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario MPS 225 For the Employer: Ms. D. Nagel Senior Staff Relations Officer Staff Relations Branch Civil Service Conmission 2nd Floor Frost S. Queen's Park, Toronto Hearing: December 15th, 1979 Suite 2iO0, lB0 Dundas St. W. Toronto, Ontario 72/76 -2- This'matter first came before the Board for hearing on March 14, 1977 at which time it was adjourned pending the decision of the Board in Re O.P.S.E.U. (Fitzsimns and Vice) and Ministry of the Attorney General, l/77. Unfortunately, the parties were unable to resolve their differences upon receipt of that award, and the matter is therefore before us again. The,panel which sat on ,the original hearing date did not become seized of the matter, and no objection was taken to the jurisdiction of the present panel to. hear and determine the dispute. The parties were able to produce a joint statement of fact for us at the hearing. That statement reads: 1. 2. 3. 4. 5. Ms. M. Szpakowski and Ms. R. Johnson, during their employment with the Ontario Science Centre, were public servants, appointed to the unclassified service, in accordance with Section 8 of The Public service Act. Ms. Szpakowski and KS. Johnson were appointed to the unclassified service on several oc- casions . The last such appointments were for the period June 1, 1976 - June 30, 1976 (appointment documents attached). Ms. Szpakowski and Hs. Johnson ceased to be public servants on June 30, 1976 at the expiration of their appointments, in accordance with Section 9 of The Public Service Act. Ms. Szpakowski and Ms. Johnson were notified, in writing, on April 23, 1976 that they would not be appointed to the unclassified service for a further period beyond June 30, 1976, due to “the recent budgetary and manpower constraints imposed on all areas of the Ontario Government”. The Collective Agreement with respect to Working Conditions, dated March 12, 1976 was in effect at the times material to this grievance. -3- 6. 7. 8. 9. Msi’ Szpakowski and Ms. Johnson, during the relevant times, were included in the public service bargaining unit represented by the Ontario Public Service Employees Union and described in Article 1.1 of the Workings Conditions Agreement. The terms and conditions of employment enjoyed by Ms. Szpakowski and Ms. Johnson were, at all relevant times, in accordance with the applicable provisions of the Working Conditions Agreement. During their employment, Ms. Szpakowski and Ms. Johnson were viewed by the Ontario Science Centre as satisfactory employees and were not subject to discipline, including dismissal, at any time. Ms. M. Heel, also named in the Union grievance, continues to be employed at the Ontario Science centre. This is another in a series of cases by which the interaction of the Public Service Act, R..s.o. 1970, c.386, as amended, the Crown Employees Collective Bargaining Act, R.S.O. 1972, c.67, as amended and the Working Conditions Collective Agreement binding the parties at the relevant time (in this case the 1976 agreement) falls to be determined. Specifically. sections 8 and 9 of the Public Service Act are here at issue. They provide: 8.-(l) A minister or any public servant who is designated in writing for the purpose by him may appoint for a period of not mire 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. -4- (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. This case iS very Similar to Re Bond and Ministry of Natural Resources, 173/78, a case heard just one week prior to the present. In that decision another panel of the Board found: It is our opinion that the griever's employment ceased by operation of section 9 of the Public Service Act and by virtue of this section and the terms of his appoint- ment, it cannot be said that he was "dismissed" within the meaning of s. 17(2) of the Crown Employees Collective Bargaining Act. - The main argument advanced by the Union is that an appointment for a specified term under s.8 of the Public Service Act is contrary to the spirit of the applicable collective agreement, - and that, at least after the first appointment (which is limited to terms of one year or 1ess)the Employer should be found to have agreed to make further appointments subject only to dismissal for just cause or termination otherwise in accordance with the collective agreement. To expand slightly on the Bond decision, it is our view that, for the Union successfully to alter the impact of ss.8 and 9 of the Public Service dc:,it would need to negotiate express provisions in the collective agreement requiring such appointments to be entirely -5- on the same basis as appointments to the classified service. Even in private sector labour relations, agreements are generally considered to be negotiated in the context of an ordered statutory framework. Here, the Public Service Act is part of that framework. Ministers only have authority to appoint public servants to the extent that they are authorized to do so by the Legislature; all other purported appointments to the public service are without statutory sanction. If the Union wishes to influence the way in which a Minister (or the Employer in general) will administer his or her (or its) statutory authority, the Union must do so through collective bargaining, if at all. In the result, we find that the action complained of is not a dismissal, and is not subject to a test of just cause. The grievances are therefore denied. Dated at Toronto. Ontario this 4th day of July, 1979. K. P. Swan Vice-Chairman I concur A. Fortier Member I concur R. Cochrane Member b.q.