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HomeMy WebLinkAbout1981-0429.Skalesky.82-12-21IN THE MATTER OF ANARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Ms. Ann Skalesky) Grievor -And - The Crown in, Right of Ontario (Ministry of Natural Resources) Employer Before: P. Draper Vice Chairman M. M. Perrin Member F. T. Collict Member For the Grievor: M. Pratt Grievance/Classification Officer Ontario Public Service Employees Union For the' Employer: P. Mooney Staff Relations Officer Civil Service Commission 'Hearing: November 10, 1982 _’ -2- DECISION The Grievor, Ann Skalesky, states that she has been unjustly dismissed and requests reinstatement to the posi- tion held by her at the time of the alleged dismissal. , At the outset of the hearing, the representative' of the Employer raised the preliminary objection that then matter is not arbitrable. A Statement of Fact was filed with the Board in which the parties agree that: Over a period of some five years the Grievor was given a series of appointments as a public servant ins the unclassified service under section 8 of the Public Service Act, the last of which was for the period March 3, 1981-March 31, 1981; The griever ceased to be a public servant at the ex- piration of her last appointment, that is, on March 31, 1981, under section 9 of the Public Service Act; The terms and conditions of the Griever's employment were in accordance with the applicable provisions of the. collective agreement between the Union and the Employer in effect at the material time and the Grievor does not allege a contravention of that agreement. Sections 8 and 9 of the Public Service? Act read as follows: 8. (1) A minister or any public servant who is designated in writing for the purpose by him may appoint for-a period of not more than one year on the first appointment and for any period on any subsequent appointment a person to a position in the unclas- sified service in any Ministry over which he presides. (2) Any appointment made by a designee under subsection (1) shall be deemed to have been made by his minister. R.S.O. 1980, C. 418, 5. 8. 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. R.S.O. 1980, C. 418, S. 9. -3 - Article 3 of the collective agreement sets out a number of terms and conditions of employment. Section 1 of the article reads as follows: The only terms of this Agreement that apply to em- ployees who are not civil servants are those that are set out in this Article. By definition under the Public Service Act the Grievor, upon her appointment, became a publics servant‘but not a civil servant. The Appointment to Unclassified Staff form signed by the Grievor on the occasion of her last appointment contains the following declaration: I understand that this appointment is of a temporary nature and is not to be considered as leading to continuous or regular employment. I have read and understand the terms and conditions governing my em- ployment and have received my copy of these terms and conditions. I also understand that my period of em- ployment will be concurrent with the duration of the seasonal job-non-recurring project as shown on this form. The issue raised by the present case was dealt with by the Board in Bond, 173/78, and in Johnson and Szpakowski, 72/16. In dismissing the grievances-in question,the Board found that a person who is employed as a public servant by way of appointment for a specified period to a position in the unclassified service under section 8 of the Public service nct,.and whose employment ceases by operation of section 9 of that Act and in accordance with the terms of the appointment, cannot be said to have been dismissed within the meaning of section 18(Z) Cc) of The crown Employees Collective Bargaining Act. :;. _I. . . ‘7: .‘.. .‘ ::: -4- The limits of the Board's jurisdiction are clearly expressed in .Haladay, 94/78: First, we are vested with jurisdiction to hear and determine disputes about the interpretation, application, administration or alleged contravention of the collective agreement; this jurisdiction arises'under s. 18 bow s. 193 Of The Crown Employees Collective Bargaining Act. Second, .beyond that jurisdiction and independent of it, we have the I5 'urisdiction set out in s. 17(2) ow s. 18(2) 3 . . . There can be no doubt that neither head of jurisdiction is applicable in the circumstances of this case. It fol- lows that the decision taken by the Employer nqt to re- appoint the Grievor at the expiration of her last appoint- ment on March 31, 1981 (in effect, to cause her employment to terminate) is not amenable to review by the Board. The "why" of that decision, which is the aspect'of the matter-that most concerns the Grievor, is,.of course, similarly beyond our reach. The grievance is dismissed. .~ DATED at Consecon, Ontario, this 21st day of December, 1982. 2: 1100 0. 11. Draper, Vice Chairman l M. M. Perrin, Member F. T. Collict, Member