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HomeMy WebLinkAbout1980-0320.Doe.81-02-03, Between: Before: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Ms. Gloria Doe - And - The Crown in Right of Ontario Ministry of Consumer and Commercial Relations IEL@HONE: m/599- 0688 32o/ao For the Grievor: For the Employer: - Hearing: Prof+ P. G. Barton Vice Chairman Mr. A:. Reistetter .Member Mr. .R. Russell Member Mr. G. Richards, Grievance Officer, OPSEU Mrs. G. Doe Mr. J. Zarudny, Counsel Ministry of the Attorney General Mr. R. Aldous, Oeputy Oirector Ontario Racing Conmission L. Dorff January 9th, 1981 Suite 2.100 180 Dundas Street West Toronto, Ontario M5G 128 Introduction Between 1973 and March 31st, 1979 the grievor was employed by the Ontario Racing Commission as a Clerk-Typist at ,the Windsor ~Racetiay. In March of each year starting with 1973 she was offered a job for a one year period, normally commencing on April 1st and ending on March 31st of the following : year. ' She was to be paid on a per diem with a living allowance if required. Her job was to work during the racing season and occasionally slightly beyond the racing season or on a part-time basis, atother tracks, as a Clerk issuing licenses to 'persons involved in standard-bred racing during the season. The racing season normally runs between mid-October and mid-June and most .of her work would be done during those periods. On March lth, 1979 she was offered a job by the Ontario Racing Commission in the above terms to run between April lst, 1979 and March 31st, 1980. On about April lst, l980 she was 'informed by letter or personally that because of moneta,ry restraints her job would not be offered to her for the subsequent one year period. On April 16th, 1980 she filed a grievance alleging that her termination was contrary to Section 17 of the Crown Employees Collectives. Bargaining Act (CECBA) and asked for "reinstatement to former position without loss o.f pay benefit". .Background This Board has jurisdiction to consider the matter if the grievor was a public servant within the meaning of Section l(l)(g) of the Public Service Act, in which case she would have ‘. . . _- 2 been covered by the relevant collective agreement and would be bringing a grievance under Article 27 thereof. We would also have jurisdiction to consider.the matter of her termination if she was an employee, which I shall refer to hereinafter as a Crown employee, pursuant to Section l(l)(g) of the Crown Employees Collective Bargaining Act (CECBA). If she was not a public servant but was nonetheless a Crown employee, she would have the statutory right to grieve found in Section 17(2) (c) of the CECA "that~ he has been disciplined or dismissed or suspended from his employment without just.cause". By way of general background it should be noted that person .employed by the Ontario Government fall into a number of categories. 'The three most relevant categories for our purposes are: Crown employees, public servants, and civil servants. By virtue of Section l(1) (g) of CECBA, employee which I take to mean a Crown employee, is defined as a Crown employee in the Public Service Act with certain exceptions. Crown employee is defined in the Public Service'Act Section l(e) as "a.person employed in the service of the Crown or an Agency of the Crown" ‘with certain exceptions. Some but not all of Crown employees will be public servants. These are persons who are defined in Section l(1) (g) of the Public,Service Act who have been appointed by the Lieutenant Governor in Council, the Civil.Service Com@ssion or by a Minister. Those,who are appointed by Minister are in the unclassified , service defined in Section l(l)(i) of the Public Service Act and they are broken into two groups by Section 5 of Regulations 749. . - 3 By virtue of the collective agreement.between Management Board of Cabinet and OPSEU, the latter organization is the exclusive bargaining'agent for all public servants other than those excluded by Section l(l)(g) of the CECBA. As I have suggested earlier if she was a public servant she would have been covered by the agreement. Some but not all of the public servants fall in the category of civil servant. This category is defined by Section l(a) of the Public Service Act and includes those.persons appointed by.the Lieutenant Governor in Council on certificate of the Civil Service Com&ssion. By virtue of Section l(l) (b) of the same statute they become part of the classified service. The other relevant material is found in the Racing Commission Act R.S.O. 1970, c.398. That statute provides for the setting up of the Ontario Racing Commission and Section 8 thereof provides that the Lieutenant Governor in Council shall fix 'the salaries of the Chairman;~Vice-Chairman and other members of the Commission. Section 9(l) of the statute provides as follows: "the Chairman of the Commission and all officers, clerks and other employees thereof are subject to the Public Service Act and are civil servants within the meaning of that Act". Section 11 of the statute provides that the Commission has the power, (m) *to employ stewards, veterinarians, analysts and such other persons as the Commission,considers expedient to attend the race meetings on behalf of the Commission". 4 Jurisdiction It was suggested by Mr. Zarudny.in argument that Ms. Doe had not been .a Crownemployee at~the time of her termination ,and therefore that we had no jurisdiction either under Section 17 of CECBA or under the terms of the collective agreement. This issue rose between the parties last summer and on October 24th, 1980 the Union requested a decision of the' Ontario Public Service Labour RelationsTribunal as to whether or not she had,been a Crown employee. Section 38(l) of CBCBA provides that a question as to whether a person is an employee "may be referred to the Tribunal and its decision thereon is final and binding for all purposes". On December 1, 1980 the Civil Service Commission wrot'e to the Registrar of the Tribunal and agreed that she had been an employee within the meaning of CECBA and that it was not neces.sary for the Tribunal to sit on that issue. On December Sth, the Ontario Public Service Labour Relations Tribunal terminated proceedings "having regard to the representations of the parties". On December 8th, 1980 the Union withdrew its request for a Tribunal hearing. We feel the effect of this proceeding was that, although the Tribunal did not rule.upon a question of whether. she was or was not an employee, the parties had agreed to that.and it was not open to them to re-open the issue at the hearing before us. It would make the process of resolving grievances particularly difficult if parties were not held to agreements made before the hearing.- In stating that she was an employee at the time, we do not wish to be taken to be stating that all persons in her position tiould'necessarily be considered as Crown employees. Xe did not hear evidence on this issue, and the question should be left to be decided in another case if it should arise. We feel that since reference to the Tribunal is permissive, we < might have the power in appropriate cases to determine for ourselves whether or not a person was an employee and therefore with= '0~u.r jurisdiction. Award The basic argument presented by Mr. Richards in his usually able argument, was that by virtue of Section 9(l) and Section 11(m) of the Racing Commission Act, the grievor &as a civil servant and could only be released pursuant to Section :22(4) of the Public Service Act governing releases of public servantswherenecessary because of shortage of work or funds, or that she should have been laid off pursuant~to Article 24 of the relevant agreement, rather than terminated. The position taken by the employer on this issue was that if she,was a civil servant, she was a civil servant on a one-year contract, and / at the'end of that one year could be terminated. The basic argument as to whether she was a civil servant depends upon interpretation of‘section 9(l) and Section 11 c&j . Prior to 1973, Sections 8 and 9 of the Racing Commission Act provided that the Lieutenant Governor in Council had the power to appoint officers, clerks or other employees and these persons 6 were civil servants. This power to appoint was removed in 1973 and the sections are in the form cited above. We feel that the Racing Commission,could.obtain the employment of officers, clerks and other employees through the normal procedures set out in Section 7 of the Public Service Act, by directing a request through the Ministry of Consumer and Commercial Relations, In ;:“~ the case of the grievor, her appointment does not appear to have been by the Lieutenant Governor in Council and on that basis alone it seems difficult to say that she.was a civil servant. The question is whether the word "emp~loy~'used in Section 11(m) means the same as "employees" within Section 9(l). A look at Section 11(m) shows that the persons contemplated within that provision are stewards, veterinarians, analysts and others persons required at race meetings. It seems to us that the grievoti might well have come within this category. It was conceded by Mr. Richards at the hearing that some of the persons employed under Section (m) might well be independent contractors. It seems to us that it follows that this not all those employed under Section 11(m) are civil servants. We suggest that the word,"employ" in Section 11(m) is not being used'as a term of art and'was not inteided by the legislature to be a reference to "employees"'under Section 9(l). To reach any other conclusion would be to reach,an absurd result.. It would mean that the Ontario Racing Commission was authorized. to bypass the entire Civil Service procedure and could appoint civil servants with the attendant financial-burdens upon the government without the approval of the Lieutenant Governor in - Council as required by Section 7 of the Public Servil which power would completely frustrate the entire sy: ins the Public Service Act. Such an absurd result WOI to be required by more precise language than is foun Il.(m). .~' ,._: Although finding that she was not a'civ. makes it unnecessary for us to consider the argument employer in this situation , we feel it is essential i upon it. The argument that the civil servant could 1 at the end ,of a.contract year was based upon referent case of Ba 173/78 and Johnson and Szpakowski 72/76 those cases involved termination of unclassified pub: under Section 9 of the Public Service Act. Because ( that civil servants are normally appointed to a probi year and then appointed to the full-time classified 1 and because we are unaware of any civil servants who contract from year to year , we do not think that the Public Service Act contemplates such an appointment i not think that the cases dealing with the unclassific servant resolve the issue. A decision on an issue o: 'magnitude should await a proper presentation of evidc argument. A recent decision of the. Chairman J. F. I Johnstoh, January 20, 1981, deals with an emp&oyee~wl the unclassified service on year to year contracts fc years. Eventually she was appointed to the classific 7 Act, am set up i, have in Sectjon servant f the comment removed to the Both 3 servants the fact ionary olic service, re on a theme of the i we do public such :e and Weatherill, wks in. a number of service 8 of the public service, i.e., as a civil servant and released within one year.~ This seems to us to be the normal way in which the empioyer handles year to year contracts and it could well have chosen to deal with MS. Doe as an unclassified public ~~2servant. It chose not to do so and in this hearing it was not 24 -'$argued by counsel for the employer that she had been a public servant. , Since we have decided that the grievor was not a civil servant, the sole remaining question is whether Section 17 of CECBA was violated. Since it was agreed that she Chad not-been terminated for any disciplinar-1 reason whatsoever and that the termination was for financial reasons, we do not feel there wgs'any violation of Section.l7(2). Indeed, since her contract had come to an end,,use of the word'termination may not be appropriate in any event. Accordingly the grievance is dismissed. At the hearing it became apparent to us that on . . . January 7th, 1981 an offer of reinstatement was made to then grievor. This reinstatement was to be in the terms of her previous contracts with adjustments for inflation and with a back payment for lost pay. Some issue was taken at the hearing concerning the calculation of this back pay. Because we have dismissed the grievance we .do not think that we have any jurisdiction to deal with the matter of whether the offer is an-appropriate one and whether or notthe back'pay calculation is an accurate one. We do feel however that, having made the offer the employer should stick ,to it despite the . . . ~7 9 outcome of this grievance and urge the employer to get together with the employee to ensure that the compensation offered is adequate. DATED AT London, Ontario this 3rd day of February, 1981. Peter‘d. Barton irice Chairman "E. Reistetter" E. Reistetter Member "R. R&&11" R. Russell Member I, I. . ,: Partial Dissent January 28.1981 ARSITRATIOX I BEFORE THE GRIEVWCE SETTLEMENT BOARD 320/00 Grievor; Ns. Gloria Doe, and The Crown in Right of Ontario Ministry of Consumer b Commercial Relations. Board members: Prof. P.B.Barton - vice chairman E.Reistetter 6, R. Russell - members. I have read thedraftaward of the chairman and while I agree with it in part , I find it necessary to record my differences.Xy major difference lies in the fact that thegrievance as set out in Exbibit 1, which reads as follows: ** Re-instatement'to former position with no loss of pay or benefits:' At the beginning of the hearing a Hand Delivered letter from John P. Zarudny, counsel for the employer was presented to.the Board, dated January 7,1981. This letter states in part: - "'Lo-accordance with the "settlement required" the Commission hereby agrees to re-instate Hrs. Doe by renewing her contract of employment, which expired iYarch 31st.1980, retroactive to April lst, 1980." The letter went on to say that the Commission agrees to pay IYrs. Doe $3,202.50 and they set out a kind of fotymula.which constituted the basis on which they made their calculation. It is my considered opinionthat the matter of Gloria Doe‘s re-instatement and the conditions thereto were settled and that the Board should remain seized with the matter only to the extent that the money settlement could,be argued based on the fonnula'submitted. The union's position was, as I understand it, that this was. alright as far as it goes, but it doesn't go far enough. The union relied heavily on the Racing Commission Act -section 9. to a&ue that the-griever should..be'classified as a civil senrant, in which case she would be entitled to additional benefits. I find the union's argument somewhat tenuous for such a major issue. One has the impression that the union may have been trying to bring in via the back door a matter that needs to be resolved in negotiations between the parties-to the collective agreement. Clearly, this is a matter that affectis many more empl- oyees than the grievor and consequently the wording of.section'9(1)., .needs to be more.clearly defined than at present to make it embrace the grievor. I, :i ,’ ~, . z Arbitration - Gloria Doe Under the sub-heading W JURISDICTION" the chairman has referred to the argument advanced only at the end of the hearing,that the the Board lacked jurisdiction. I concur with the remarks of the chairman and only wish to add that I consider the actions of Counsel for the employer, most unorthodox. This is particularly so when one realises that Counsel for the employer is very experienced in matters of procedure in regard to arbitration. I would therefore find that the qrievor isnot a Civil Servant as argued by the union. I also find that' the grievance has been resolved by virtue of the letter of the Employer of January 7,1981, that the qrievor be re-instated to her former position with no loss of pay or benefits. Also, that this Board remain seized with the matter only in so far as whether the calculation of back pay is fair and accurate.