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HomeMy WebLinkAbout1982-0531.Miller and MacPhail.87-03-02531182 4 532182 IN THE MATTER OF AN ARBITRATION - Under - THE CROW?4 EMF’LOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Brian Miller and Clair MacPhail) - and - The Crown in Right of Ontario (Ministry of Correctional Services) Grievers R.L. Veritv. Q.C., Vice-Chairman Employer L. Robbins; .Membe; W.A. Lobraico, Member FOR THE GRIEVORS: C.G. Paliare, Esq. Cowling and Henderson Barristers and Solicitors FOR THE EHPLOYER: L. McIntosh Barrister and Solicitor Crown Law Off’ice, Civil Ministry of the Attorney General NEARING DATE: July~ 16, 1986 SUPPLERENTARY DECISION On April 7, 1983, this panel of the Board issued a Decision which characterized the termination of employment of Messrs. Miller and MacPhail as. dismissals without just cause and not bona fide releases, as alleged. A majority of the Board then went on to find that the provisions of Article 3.,ll,of the Collective Agreement limited the fashioning of a remedy. The matter proceeded to Judicial Review on the issue of remedy. The Ontario Divisional Court quashed the Board's remedial finding in a unanimous Decision dated March 21, 1984. Mr.,Justice Craig gave the following reasons: "The Collective Agreement distinguishes clearly between 'dismissal' and 'termination' (see Art. 3.11 and Art. 27.6.2). In addition the Act (Crown Employees Collective Bargaining Act) provides for grievance in the event of dismissal (Section .18(2 disputes by the Grievance 19(l)). Employment was terminated found as a fact thattermi without cause. ) and Arbitrationof Settlement Board (S: by Notice and the Board nation was a dismissal The Board then came to the question of 'remedy' and held that Art. 3.11 prevented it from re-instating the Grievors and also from making an award forlost wages - In our opinion the Board gave Art. 3.11 an interpretation which is patently unreasonable (the highest possible test) in so~doing that is in the -3 - light of Art. 27.6.2 of the Collective Agreement and Sections 18(2) and 19(l) of the Act. It is our view that the Board was not limited to a remedy of one week's pay or one week's notice by Art. 3.11. Also, it is our opinion that, in holding that it could not fashion a remedy beyond Art. 3.11, the Board impliedly erred in 'j'urisdiction pursuant to the Act. That is, the Act clearly provides for discretion to fashion a remedy for the applicants in the circumstances. The Board recognized the distinction between 'dismissal' and 'termination' in finding dismissal without cause, but when it turned its attention to remedy, it indicated that termination included dismissal. We would add th.at the Board cannot amend the Collective Agreement (Art. 27.12) The Application is therefore allowed; the Award herein is set aside and the matter is remitted to the Board to be dealt with according 'to law. costs to the Applicant." On February 18, 1986, the Ontario Court of Appe'al dismissed an appeal from the Judgment of the Ontario Divisional Court. This Board is now called upon to fashion an appropriate ,... ~.~ ~~. remedy. In that determination, the following facts are relevant by of background information. Brian Miller and Clair MacPhail were public servants appointed to the unclassified service in accordance with then provisions of S. 8 of the Public Service Act, R.S.O. 1980, c. 418; under a series of term appointments. These employees were part-time employees as contemplated by Article. 3 of the Collective Agreement. Both Miller and MacPhail were appointed to the position of Correctional Officer 1 at the Cornwall Jail. Miller was.first appointed under a term appointment which commenced Cctober 24, 1977. MacPhail's initial r I~‘j\cl. t:. 7 - 4- .- term appointment dates back to November 20, 1978. Each Grievor continued to be employed under a series of term appointments. The final appointments, as the facts established, were for the period April 1, 1982 to March 31; 1983. On August 12, 1982, Cornwall ~Jail,,,;Superintendent Richard Dagenais terminated both contracts of employment apparently for the . sole reason of unavailability of either Grievor to work when requested. At the Hearing, Superintendent Dagenais testified that between January and July 1982, Brian Miller had worked an average of only one shift per month. Similarly, during the same time frame Clair MacPhail worked an average of only two shrifts per month. - The Board makes no attempt to repeat the able arguments presented by Counsel, except in summary form. On behalf of the Grievors, Mr. Paliare advanced several novel arguments in support cf the contention that, in the absence of culpable conduct, the Grievors were entitled to the normal remedial award - namely, reinstatement with full compensation for lost wages and benefits. In addition, he requested interest. Mr. Paliare contended that following the enactment of.the Crown Employees Collective Bargaining Act, an exclusive bargaining relationship was established between the Employer and the Union under which individual contracts of employment were null and voids. In support of that argument, Mr. Paliare submitted a series of cases based on the rationale of Chief- Justice Laskin in McGavin Toastmaster Ltd. v. Ainscough et al. (1975) 54 D.L.R. (3d) 1. Mr. Paliare argued that with the enactment of the Crown Employees Collective Bargaining Act a complete code or regime was established for regulating employer-employee relationships for all employees covered by that Act. To/that proposition, he acknowledged one exception.- namely, at the hiring stage an Employer had the unfettered right to hire under either the classified or unclassified service. Once hired, the terms and conditions of employment for those employees were regulated by the combined effect of the Collective Agreement and the Crown Employees Collective Bargaining Act. Alternat~ively, he argued that if it were possible to have individual contracts of employment, it had to be on matters not covered by the Collective Agreement. .Mr. Paliare contended ~that any conflict or inconsistency between the Public Service Act and the Crown Employees Collective Bargaining Act must be resolved in favour of the latter Act as a general rule of statutory construction.. In these circumstances, he argued that' there was no inconsistency between the two Acts. Specifically, Mr. Paliare contended that Section 9 of the Public Service Act did not apply to employees governed by the Crown Employees Collective Bargaining Act. _. On behalf of the Employer, Ms. McIntosh acknowledged that the Board had jurisdiction to compensate Miller and MacPhail for the remainder of their term appointments. In suppo.rt, she placed heavy reliance upon the provisions of ss. 8 and 9 of the Public Service Act. Ms. McIntosh contended' that fol lowing the exp iration of a term ~_:. ,, .’ -6 - appointment, the Board had no jurisdiction to make an appointment to the public service by way of remedial relief. In sum, her position that the Board was without jurisdiction to revive a term appointment. Ms. McIntosh contended that the Ontario Divisional Court established the principle in Re Attorney-General for Ontario and Keeling et al. (1980), 20 0.~. (2d) 662, that the substantive right to be dismissed except for- just cause arises only from s. 18(2) of the Crown Employees Collective Bargaining Act and not from the Collective Agreement. Accordingly, she contended that the notion of individual contracts was irrelevant because the employment limitation arose from the Public Service Act in the right, con,tained in s. 9, to limit term appointments. MS; McIntosh'argued that there was no inconsistency in the provisions of the Public Service Act and the Crown Employee.5 Collective Bargaining Act. Clearly, the Employer has the exclusive right of appointment under' s. 18(l) of the Crown Employees Collective Bargaining Act. The statutory authority for appointment to the unclassified service arises from s; 8 of the Public Service Act. Authority for appointments to classified service arises from ss. 6 and 7 of that. Act. The Judgment of Chief Justice Laskin in McGavin Toastmaster stands for the proposition that there is little, if any, room for individual contracts of employment once there is a-collective bargaining regime in place. Ms. McIntosh does not dispute that :3 I. -7 - proposition. In our opinion, any limitation of employment of these Grievors arises under ss, 8 and 9 of the Public Service Act and not from individual contracts of employment that may have been and were negotiated in this case by the Employer. Accordingly, we would agree with the Employer's argument that the notion of individual contracts irrelevant because of.the statutory limitation. The Board cannot find that s. 9 of the Public Service Act inconsistent with any provision of the Crown Employees Collective Bargaining Act or the Collective Agreement. In summary, there is simply no provision in either the Crown Employees Collective Bargaining Act or the Collective Agreement which states or implies that - appointments to the unclassified service cannot be by way of appointments for specified periods. In our opinion, the,Union's contention that, once a collective bargaining regime is established there is no limitation in the term of appointment for uncla.ssified employees governed by the Crown Employees Collective, Bargaining Act, contrary to the provisions of c.: 9 of the Publ-ic Service Act. In addition, we note that the Public Service Act has been amended from time to time to conform with the provisions of the Crown Employees Collective Bargaining Act. Despite the attractiveness of the Union's arguments, we cannot agree that, within the framework of the.-legislation, there is _ room for individual contracts of employment for unclassified employees. Similarly, we are unable to agree that s. 9 of the Public Service Act is not applicable to employees who fall within Article 3 the Crown Employees Collective Bargaining Act. Numerous Decisions of the Grievance Settlement Board have established that there is an interrelationship between the Collective Agreement, the Crown Employees Collective Bargaining Act and the Public Service Act - a relationship that is well known to the Parties. See, for example, Johnson and I Szpakowski, 72/76 (Swan); Bond, 173/78 (Adams); Skalesky, 429/81 (Draper); O’Hara, 1596/84 (Verity); Simpson, 694/85 (Kennedy); and Mousseau, 1182/85 (Jolliffe). Chairman Adams commented on that relationship in the Bond Decision, referred to above, at p. 3: “As the parties have provided, the only portion of the col-lective agreement that applies to employees who are not civil servants is Article 3. Thus, the parties were fully aware of this particular interrelationship between the Public Service Act and the Crown Employees Collective Bargaining Act...” - Vice-Chairman Swan extended that rationale in Johnson and Szpakowski at pp. 3, 4 and 5: “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.... . . ..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 less) 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 sl~ightly eon the Bond decision, it isour view that, for,the Union successfully to alter the impact of ss. 8 and 9 of the Public Service Act, it would need to negotiate express provisions in the collective agreement requiring such appointments to be entirely 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." With respect,. we do not accept Mr. Paliare's contention that Vice-Chairman Swan's 'rationale is incorrect. To accept the Union's arguments in this case would cast serious doubt as to the validity of numerous previous Decisions of the Grievance Settlement Board. It is useful to set out the relevant provisions of the Collective Agreement within the legislative framework of the Public Service Act and the Crown Employees Collective Bargaining Act. Certain provisions of the Public Service Act, R.S.O. 1980, c. 418 are to be considered in relation to this grievance: - 10 - 1. In this Act, (a) (b le . . (g) ~(’ i 1 ~6. - ‘civ.ii servant’ means a person appointed to the service of the Crown by the Lieutenant Governor in Council on the certificate of the Commission or by the Commission, and ‘civil service’ has a corresponding meaning; ‘classified service’ means the part of the public service to which civil servants are appointed; “Crown employee’ means a person employed in the service of the Crown or any agency of the Crown, but does not include an employee of Ontario Rydro or the Ontario Northland Transportation Commission; “. ‘public servant’ means a person appointed under- this Act to the service of the Crown by the Lieutenant Governor in Council, by the Commission or by a minister, and ‘public service’ has a corresponding meanings; ‘unclassified service’ means the part of 7~” the public service that is composed of positions to which persons are appointed by a minister under this Act. R.S.O. 1980, k. 418, s. 1. (1) When a vacancy exists in the classified service, the deputy minister of the ministry in which the vacancy exists shall nominate in writing from the list of eligibles of the Commission a person to fill the vacancy. (2) The Commission shall appoint the person nominated under subsection (1) to a position on the probationary staff of the classified service for ngt more than one year at a time. R.S.O. 1980, c. 418, s. 6. .~ 7. The Commission shall, if requested in writing by the deputy minister, recommend to the Lieutenant Governor in Council the appointment of a person on the probationary staff oft the classified - 11 - service to the regular staff of the classified service, and the recommendation shall be accompanied by the certificate of,..qualification and assignment of the Commission. R.S.O. 1980, c. 418, S. 7. 8. - (1) A minister or any public servant who is designated in writing for the purpose of 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 positionin the unclassified service in any Ministry over which he presides. ., i_.. (2) ~,~ny appointment made by a designee under subsection (1) shall be deemed to have been made by his minister. R.S.O. 198O,.c. 418, s. 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." Reference may also be made to the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108 as follows: 1. - (1) In this Act, (f) '.~employee' means a Crown employee as defined in the Public Service Act but does not include, (i)-- ~a member of the Ontario Provincial Police Force, (ii) an employee of a college of applied arts and technology, (iii) a Person employed in a:managerial or confidential capacity, (iv) a person who is .a member of the' architectural, dental, engineering, legal or medical profession entitled to~practise in Ontario and employed in a professional capacity, - 12 i (VI a student employed during the student’s regular vacation period or on a co-operative educational training program, (vi) a person not ordinarily required to work more than one-third of the normal period for persons performing similar work except where the person works on a regular and continuing basis. (vii) a person engaged under contract in a professional or other special .capacity, or for a-project of a non-recurring kind, or on a temporary work assignment arranged by the Civil Service Commission in accordance with its program for ,providing temporary help, (viii) a person engaged and ,employed outside Ontario, >L (ixj a’ person employed in the office of the Provincial Auditor, or. (xj a person employed by or’ under the Tribunal or the Grievance Settlement Board ; (ml ‘public servant’. means a public servant as defined in the PublJc Service Act and ‘public service’ has a corresponding meaning; 18 - (1 j Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage,, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and clagsification of positions: and (bj merit ‘system, training and development,. appraisal and superannuation, the governing principles of which are subject to rev,iew by the employer width the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. ” (2) In addition to any other rights of grievanc~e under a collective agreement, an employee claiming, (a) that his position has been improperly classified: (bl that he has been appraised contrary to the governing principles and standards:. .or Cc) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement; and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final : determination applicable under section 19. R.S.O. 1980, c. 108, s. 18.” 19. - (1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to ‘present their evidence and to make their submissions, shall decide the .matter and its decision is final and binding upon the parties and the employees covered by the agreement.” In addition, reference should also be made to relevant parts of .the Collective Agreement. - 14 - "ARTICLE 1 - RECOGNITION 1.1 In accordance with The Crown Employees Collective Bargaining Act, the Ontario Public Service Employees Union is recognized as the exclusive collective bargaining agent for all public servants other than persons who are not employees within the meaning' of clause f of subsection 1 of Section 1 of The Crown Employees Collective Bargaining Act." L "ARTICLE 3 - SEASONAL OR PART-TIME EMPLQYEES 3.1 The only terms of this Agreement that apply t:o employees who are not civil servants are those that are set out in this Article. .~. 3.11 Employment may be terminated by the Employer at any time with one (1) week's notice, or pay in lieu thereof. 3 .,l 4 The following Articles shall also apply to r9 seasonal or part-time employees: Articles 1, 9, 11, 12, 15, 16, 17, 2,l, 22, 23, 25, 27, 32, 36 and 57." "ARTICLE 27 - GRIEVANCE PROCEDURE 27.6.2 Any employee other than a probationary employee who is dismissed shall be entitled to file a grievance at the second ., stage of the grievance procedure provided he does so within twenty (20) days of the date of the dismissal." Article 3 of the Collective Agreement applies to employees, such as the Grievors, who are not civil servants. The Grievors were public servants appointed to the unclassified service pursuant to s. 8 of the Public Service Act. They - 15 - would have ceased to have been ~public servants at the expiration of their appointments on March 31, 1983, pursuant to s. 9 of the Public Service Act. In sum, but for the dismissals, the employment status of Messrs. Miller and MacPhail would have ceased by operation of statute on March 31, 1983, in the absence of furtherappointments. In this matter, the Union's strongest argument in support of a meaningful remedy is the Board's all encompassing remedial jurisdiction. Under s. 19(l) of the Crown Employees 'Collective Bargaining Act, the Board has broad remedial authority to fashion an appropriate remedy in all the circumstances. The Ontario Divisional Court has adopted that position on several occasions.- In addition to the Judgment of the Ontario Divisional Court in the instant Grievances, C.-z. 6-r .2yi.r;z1Ff, the Judicial Review of Zuibrycki in Regina v Ont.?T-,r __.- .,... A. Public Service Employees' Union et al (19b2), 35 O.R. (2d) 670. Specifically, s. 19[‘1) of the Crown Employees Collective Bargaining Act empowers the Board "to decide the matter and its decision is final and binding upon the parties and the employees covered by this Agreement". In the absence of just cause for dismissal, the usual remedy is reinstatement with compensation for all lost wages and benefits. The p&pose of this remedy, of course, is not tb penalize the Employer for a bona fide mistake, but to place an innocent party in the same position he or she would have been, in but for the Employer's action. - 16 - As noted above, the broad remedial powers of a Board of Arbitration under s. 19 of the Crown Employeees Collective Bargaining Act has been confirmed by the Courts. - In our opinion, the Board does have the remedial authority to reinstate the Grievors with full compensation. The question, however, is whether it would be appropriate to do so in these circumstances. Clearly, our mandate is remedial. In the exercise of that mandate, the Board's jurisdiction under s. 19(l) is unrestricted. Support for that proposition is set Out in the Ontario Divisional Court Judgment of Mr. Justice Reid , released March 13, 1986 in Ontario Public Service Employees Union and Carol Berry et al and the Crown in Right of Ontario (Ministry of Communitv and Social Services).. .~ The significant fact in this case is that there was no evidence of any blameworthy conduct on the part of the Grievors. The evidence disclosed that they were. terminated for the sole reason of their lack of availability to attend at the workplace. -Superintendent Dagenais acknowledged th;at he did not warn either Grievor that lack of availability for work could lead to~termination of employment. There was no evidence that either Grievor was warned'of the possible consequences. On the evidence presented the Board characterized the terminations as discharges withoutjust cause. In the absence of such evidence, the Board cannot concludes b:, -~ way of an assumption that Miller and MacPhail would not.have been reappointed to the public service subsequent to the termination of 1 their appointments on March 31, 1983. Simply stated, there was no evidence to that effect. In fact, the proposition that Miller and Y MacPhail would not have been reappointed was not addressed in argument. It would be improper for a Board-of Arbitration to deny the Grievors full remedial redress by making assumptions which are not based on the evidence adduced. -But for the dismissals, the Grievors may well have been reappointed to the public service and subsequently reappointed up to and including the present date. As indicated previously, this is not a case where a term appointment has allowed to expire in the absence of a further appointment. Accordingly, the Board exercises its remedial'?uri under s. 19(l) of the Crown Employees Collective Bargaining j been sdiction Act in - reinstating the Grievors to their positions as Correctional Officers 1 at the Cornwall Jail in the capacity of public servants in the unclassified service for the remainder of the period to which they would have been entitled, but for the dismissals. In addition, they shall receive compensation from the date of their dismissals (August 72, 1982) to the date of reinstatement, together with interest calculated in accordance with the formula determined in Hallowell House Ltd. and Service Employees Int'l Union, Local 18'3 (1980), 1 0.L.R.b. Rep.'35. Miller will be. compensated on the basis of one shift per month and MacPhail on the basis of two shifts per month. The Board shall.retain jurisdiction in the event df any difficulty in implementing this Award. t’l-I!: 1. IT .- I. - 18 - In fashioning.this remedy, the Board has attempted to devise a meaningful and appropriate remedy in this prolonged matter. The .appropriate remedy, we think, is to place the Grievors in the same position as they would have been in, but for the Employer's actions. Accordingly, this remedy will compensate them for the lost opportunity to demonstrate suitability for reappointment. DATED at Erantford, Ontario, this 2nd day of March, A.D., 1987. Richard L. Verity, Q.C. - Vice-Chairman / /-, .” “see Addendum attache L. Robbins- I--- W. A. Lobraico - Member a i :, ..~ <, : IN THE HATTER OF THE ARBITRATION BETWEEN: UINISTRP OF CORRECTIONAL SERVICES - and -, 531/82 and 5?2/82 ONTARIO. PUBLIC SERVICE EMPLOYEES UNION AND IN THE UATTER OF THE GRIEVANCES OF BRIAN MILLER b CLAIR HACPHAIL A DDENDUU I have reviewed the Award of the Chairman in the.above <loted matter. I concur with the remedy to the extent that the two grievors are reinstated with full~compensation. I do not agree however with the Chairman's analysis of Sece~ions 8 h ,9 of the Public Service Act. :I would have found that those sections are superceded and would not apply to employees covered by the Crown Employees' Collective Bargaining A& - PAGE 2 - It follows from that that I would not have added the words "for the remainder of the period to which they would have been entitled, but for the dismissals" to the remedy in this case. That is, the grievors should simply have been.reinstated with no limit to their subsequent employment. I understand that C.~...~... ._c _. the actual result is in keeping with the Chairman's conclusions with respect to the application of the P.S.A. HOWeVer, the larger issue is that the practice of having employees continued on within the unclassified service through a series of revolving door contracts year after year is completely inappropriate to begin with. I agree with the Union's view that these contracts should not be of any force and effect, that the only contract is the collective agreement, and that there -should be..seen to be one enduring employment relationship. Bated at. Toronto, Ontario this 2nd day of March, 1987,. Al .- .l of which is respectfully submitted, LARRY ROBEINS UNION NOMINEE