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HomeMy WebLinkAbout1983-0111.Keire.83-06-15IN THE MATTER OF AN ARBITRATIQN Under THE CROWN EMPLOYFES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: April 11, 1983 OPSEU (Harry H. Keire) Grievor - And - The Crown in Right of Ontario (Ministry of Government Services) Employer E. B. Jolliffe, Q.C. Vice Chairman R. Cochrane Member G. A. Peckham Member S. Laycock Grievance Officer Ontario Public Service Employees Union N. Robinson Staff Relations Officer Staff Relations Division Civil Service Commission -2- DECISION In this case a preliminary objection that the matter is not arbitrable was raised on behalf of the Empl.oyer. After it had been established that the facts are not in dispute, and after argument by both parties had been heard, it was agreed that the preliminary issue must be decided before the Board could proceed any further. On January 20, 1983, Mr. Harry H. Keire, classified' Property Agent 2, presented the following grievance: I grieve that I have been dismissed without just cause. Mr. Keire requested: That I be re-instated with full pay and ful.1 benefits effective January 31st. 1983, as per Artical sic 27.6.2 The provision in the collective agreement referred to by Mr. Keire is as follows: 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 (201 days of the date of the dismissal. - 3 - In brief, the Employer's objection is that there was no dismissal and that the griever's employment simply came to an end by operation of law. Op behalf of the griever, it is argued that in all the circumstances the Employer's failure to "reappoint" him for a further period of time was unfair and unjust and aonstituted a dismissal without just cause. The factual background of the matter is as follows. Mr. Keire became an employee in the classified service on September 30, 1974. He attained the age of 65 years on January 29, 1982. Section 17 of the Public Service Act provides as follows: Every civil servant shall retire at the end of the month in which he attains the age of sixty-five years, but, where in the opinion of the Commission special circumstances exist and where his deputy minister so reguests in writing, he may be reappointed by the Lieutenant Governor in Council for a period not exceeding one year at a time until the end of the month in tiich he attains the age of seventy years. The effect of Section 17 was that in the normal course Mr. Keire would retire on the last day of January, 1982. There * ? - 4 - is, however, a" exception to the rule. Pursuant to that exception, Mr. Keire was re-appointed for a period of one year: from February 1, 1982 to January 31, 1983. I" May, 1982, the griever requested that he be re- i appointed for a further period. At some point he became aware that his request would not be granted. On January 20, 1983, as previously noted, he grieved "that I have been dismissed without just cause, '1 although his one-year appointment did not actually expire until January 31, or 11 days later. That fact is now immaterial, the issue being whether he had any right to be re- appointed a second time or conversely, whether the Employer had any obligation to i-e-appoint him. No witness testified at the preliminary hearing he&d in this case. However, there is in evidence as Exhibit 4 a letter dated February 14, 1983, addressed to Mr. Keire and signed by Mr. J.W. Filby, Executive Director of the' Human Resource Services Division in the Ministry of Government Services. Responding to the grievance the letter set out the Ministry's position that retirement had become necessary under Section 17 of the Public Service Act, and continued to give the following explanation: . 7 - 5 - In yar case you Qecame 65 year,s of age on January 29, 1982. At that time you applied for a reappointment for one year. This one year reappointment was granted by the Deputy Minister on the basis that the work load in the Realty Services Branch was such that ycxlr services were required for the one year period. Wnen ycu applied for a second one year extension in May 1982, the matter was given very careful consideration.by this Ministry. A review of the work load and projected organizational needs of the Realty Services Branch indicated that the circumstances wxe such that your request for reappointment for a second year could not bs granted. The review further indicated that, based on a projected hoi-k load, your position would not be filled upon your retirement. You were advised on November 18, 1982, of the decision concerning your request for reappointment. It is regrettable that this decision could not have been passed cg to you at an earlier date, however, this was due in part to the review of projected organizational needs. You were advised on October 6, 1982, by the Director of Personnel, that your overage extension wxld expire on January 31, 1983, and that you would retire on that date. This letter offered assistance to you in preparation for retirement. The grievance was referred to arbitration on March 2. Later that month Ms. Robinson on behalf of the Employer notified the Union in writing that "the Grievance Settlement Board lacks jurisdiction in this matter and we shall so argue at the hearing. scheduled for April 11, 1983." In her submissions, Ms. Robinson said the collective agrement is silent on the matter of appointment or re-appointment after 65, but Article 25.3 recognizes the distinction between retirement and dismissal. She also suggested that Article 27.1 recognizes a distinction between a "complaint" and a "difference," which shethoughtimp.lies that a mere complaint is not .a difference. Ms. Robinson, relied, however, on the language of Section 17. There could be np appointment after 65~unless three conditions are met: !a) the pepyty M:nister pakes a request in writing; (0) the Civil Service Comm+ssion considers that special circumstances exist; (cl the Lieutenant-Governor in Council makes the appointment for not more than 12 months. Further, Ms. Robinson argued, there is nothing in The Crown Employees Collective Bargaining Act which modifies in any way the law established in Section 17 of the Public Service Act. In the cqurse of her argument she referred to this Board's decisions on two policy grievances, the Meal Allowances case, 112/78: the Parking Case, 455/80; also, Haladay, 94/78 and Tsiang, ?52/81. .This was not a question of management rights or obligations, she said: it was governed by a statutory requirement. -7- In her submissions on behalf of the griever, Ms. Laycock said that Mr. Keire continued to be "an employee" after February 1, 1982, and as long as he was an employee he had the right to present a grievance and refer it to arbitration under Sections 18 and 19 of The,Crown Employees Collective Bargaining Act. The agreement applied to h~im just as it did to other employees. Ms. Laycock said that the Supreme Court's majority decision in Bell Canada (1973) 37 D.L.R. (3d) 561 had been "slavishly followed" and there was a tendency to overlook the dissenting view of Laskin J. that the issue asp to whether retirement was a form of dismissal did not raise any question of arbitrability but was an issue involving the interpretation of the agreement. Further, he had held.that where services were terminated by action of the Employer, it might be concluded that the employee had been "dismissed." It was also argued by Ms. Laycock that under Section 17 of the Public Service Act a "discretion" had been vested in the Employer and it was essential that such a'discretion should be exercised fairly and for valid reasons. She wished to prove that the reasons given in Mr. Filby's letter were not valid and - 8 -. that there actually was a need for Mr. Keire!s services. This could only be done if there were a hearipg on the merits. In answer to s question, Ms. Laycock said that in the Union's view a failure to reappoint (against the Employe,e's wishes) amounted to a dismissal. The issue here is not whether Mr. Keire was an employee when he filed his grievance in January, 1983. He undoubtedly was : no failure ta reappoint had yet occurred, but he had been advised some months earlier that it would occur at the end of January. The simple issue is @ether the griever had an en- forceable right to be reappointed. A number of precedents in the private sector such as Bell Canada (supra) were cited on both sides of the argument in this case. There were also a few in the public sector, but neither they nor the private sector cases rere affected by a statutory provision such as Section.17 in the Public Service Act. In such cases an argument can turn entirely on applicable pro- visions in a'collective agreement --- or the lack thereof. - 9 - In this case, however, the issue turns on the language of Section 17. It is a truism of con$titutional law that in its sphere "Parliamsnt is Sqprem?" and similarly in its own sphere the Legislature is supreme. The effect of certain provisions in the Public Service Act has been modified by The Crown Employees Collective Bargaining Act, enacted at a later date, but Section 17 of the former Act has not been affected in any way by the latter Act. The case for the griever 'is that the failure to reappoint him as of February 1, 1983, was the equivalent of a "dismissal" within the meaning of Sections 18 and 19 of The Crown Employees Collective Bargainjng Act. The Public Service Act and the collective agreement recogqiae several different forms of term- inatiop: dismissal, release of a prpbationer, release as a "lay- off," and of course death. Further, the collective agreement in Article 52 specifically refers more than once to "retirement pursuant to Section ~17 of the Public Service Act." Otherwise both the agreement and The Crown Employees Collective Bargaining ,Act remain silent on the effect of retirement, and there is nothing whatever to suggest that retirement under Section 17 can be equated with dismissal. Clearly they are distinct and T 10 - separate forms of termination and there is no provision anywhere for challenging a termination brought about by the statutory requirement. we cannot accept the suggestion that there is an obli- gation on the part of the Fmployer tp exercise in favour of a worthy employee the option which exiSts in Section 17. The $tatute makes retirement mandatory at the age of 65. The eqception --; obviously added for practical reasons --- is 'subject to th.re@ copditions, all of which must be met, and is severely limited in that reappointment can be made for only one year at a time. The limits placed on the exception make clear that this is not a matter of "discretion." It is only when the Deputy Minister, the Civil Service Commission and the Lieutenant Governor in Council are satisfied of "special circumstances" that a reappointment may be made. There being nothing in the statutes or the collect ive agreement to make this grievance arbitrable, the Board lacks - 11 r jurisdiction to proceed further. The preliminary objection is therefore upheld and the grievance muqt be dismissed. pated at Rockwgod this 15th day of qn@. 1983 $4A&gp$q I’ I$. B. Jblliffe,.Q.C., Vice Chairman ' R.Cochrane,Me&er EBJ:sol 6: 1100 11: 0000