HomeMy WebLinkAbout1983-0237.Adams.84-03-01IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT'
Before
THE GRIEVANCE SETTLE'MtiNT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearing:
OPSEU (Joseph Delbert Adams)
Grievor
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The Crown in Right of Ontario
(Ministry of the Attorney General)
Employer
R. L. Verity, Q. C. Vice Chairman
P. Craven Member
J. Morrow Member
B. Edson
Counsel Rovet & Associates Barristers L SOliCitOrS
L. M. McIntosh
Counsel Crown Law Office Civil
Ministry of the Attorney General
September 12, 1983
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INTERIM DECISION
Joseph Delbert Adams filed two separate Grievances, both
of which were returnable on September 12, 1983. At the Hearing, the
posting Grievance number 320/83 was withdrawn.
The remaining Grievance, dated March 21, 1983 a lleged,
inter alia:
"I grieve that ny contracts for the fiscal year 1983
are unjustly and unfairly cancelled...I grieve current
contracts wxe offeredby managekant, acceptedbysm
and signed intbepresence of witnesses inJanuary
1983..."
The settlkment requested by the Grievor was "continuation
of my signed 1983 contracts".
The Ministry alleged that the matter was not arbitrable on
the basis that there were no contracts between the Grievor and the
Ministry for the fiscal year commencing April 1, 1983. Accordingly,
it was argued that the sole issues for determination on the objection
were asfollows:
1) Were there contracts executed betkeen the Ministry
and the Griever for the fiscal year April 1, 1983
to March 30, 1984?
2) If the answer to the first question is in the negative, then does the Hoard have jurisdiction to review the
reasons for non-renewal of the contracts?
The Grievor was first appointed by the Ministry to
the unclassified service on July 26, 1982. He was employed as a
Sheriff's Court Deputy and a Court Constable at the Toronto Court
House pursuant to the terms and conditions of two separate contracts,
both of which expired on March 31, 1983. Neither contract was
terminated or cancelled by the Ministry prior to expiration.
In mid-January, 1983, the.~Sheriff's Office at 361 :
University Avenue, Toronto received a number of unexecuted contracts
relating to unclassified staff for the upcoming fiscal year. These
contracts were prepared by the Human Resources Branch of the Ministry
for all contract employees.
On January 21, 1983, the Grievor executed two contracts of
employment at the Sheriff's Office of the Judicial District of York
(Exhibits 2 and 3). John Goodman, Regional Personnel Administrator,
testified that these contractswere simply a "re-application for
employment". The contracts contain identical wording under the
heading "Conditions of Employment" as follows:
” (A)
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(a
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The Applicant is hereby appointed to the unclassified staff pursuant to Section 8 of the Public Service Act.
The mrkperiod andhoursof workwill be determined
by the enployee's supervisor, but a mininnnn of tm (2)
hours pay is guaranteed for any day on tiichthe
employee is required to report for duty. The employee will complete the daily attendance register prescribed
bytha Ministry. The applicant's employsent under the contract shall be on an as required basis, and shall not exceed a maximum
of 1248 hours., excluding overtine as defined in clause (D)
below. Overtine will be paid at the rate of tine and-a-half for any mrk performed in excess of seven and one-qmrter (7&j hours per day, calculated to the nearest half hour.
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(E)
(F)
G)
W)
(I)
(Jl
(K)
The
This contract of erployrrentmay be terminatedby either party upon giving one wxk's notice of such
intention, otherwise it will expire on March 31, 1984
Vacation pay will be 4% of gross earnings, this payrent
will be added to your bi-weekly earnings.
Statutory holiday pay will be 4% of gross earnings, not
including vacation pay. This payment will be ad&ad to your bi-kly earnings.
The applicant will be eligible, &era applicable, to receive
fees and expenses as set forth in the regulations under
the Administration of Justice Act.
&area-t, jury or witness duty leave, is provided for in
accordance with the working conditions collective agreerent.
This oxtract is not binding unless it is approved by the
Attorney General or his.desiqnee.
Mien dues will he de&&ted'& accordance with the W.C.C.A.
(Nenbership in the OPSEU is granted only on application
by the enployee to the OPSEXI 1."
Griever's contracts were signed by Deputy Sheriff
E. McCarroll on January 21, 1983. On January 28, Mr. Goodman signed
each contract in his capacity as designee for the Attorney General.
Acceptance by the Ministry of those contracts was. never communicated
to the Grievor. Subsequently, on March 16, 1983, Mr. Goodman "voided"
both contracts on the instructions of D. C. Pitkin, Deputy Director of
the Supreme Court, County and District Courts and Surrogate Courts.
On March 16, 1983, the Grievor was sent a letter by Senior
Deputy Sheriff, B. Kashuba, which reads as follows (Exhibit'4) :
"This is your go&I and sufficient notice that your contracts as a Relief Clerk #2 General and Relief
Clerk #3 General for the physical year ccemencinq
April 1, 1983 will not be renewed.
With respect to your present status, however, you will be inmadiately assigned to duties in the Court andJuries area for the balance of the present
contracts."
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The.Parties were given the opportunity of submitting
written argument on the preliminary issue of jurisdiction. Subse-
quently over a period of several months the Parties forwarded written
briefs that were both complete and ably supported by legal precedent.
It will be recalled that the grievance alleged that.the
contracts in question "were offered by management, accepted by me
and signed in the presence of witnes,ses," and that they were "unjustly :
and unfairly cancelled". On their face, these words imply that the
documents which Mr. Adams signed on January 21, 1983 were offers of
employment made to him by the Employer. If this characterization were
correct, then it would follow that in the act of signing and returning
the contracts, Mr. Adams was communicating his acceptance of the offer.
In terms the contract provided that it was not binding unless approved
by the Attorney-General. It might be argued that this provision does
not go to the formation of the contract, but is to be characterized
instead as a condition precedent to performance.
The Employer argued on the basis that the documents in
question were not offers by the Employer to employ Mr. Adams, but
applications for employment made by Mr. Adams to the Employer. On
this view, the contract would not be formed unless accepted by the
Employer.
In his written submissions, Counsel for Mr. Adams indicated
that "the qrievor acknowledges that in signing the contracts which
have been made exhibits in these proceedings, he did not accept an
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offer of employment made by the employer." The effect of this
submission is to shift the characterization of the issue to the
basis relied upon by the Employer. In other words, this Board is
not called upon to determine whether the contracts in question
amounted to offers of employment or applications for employment.
Our task here is a much narrower one; it is simply to determine
whether a binding contract was formed when the Attorney-General's
designee signed what the parties agree is to be characterized as
Mr. Adams' offer of his services.
In essence, the Employer argued that in the absence of
communication of acceptance of the Griever's offer of employment,
there was in fact no contract. Secondly, it was argued that the
Board was without jurisdiction to review the reasons for non-renewal
of the instant contracts.
Counsel for the qrievor contended that two separate con-
tracts of employment had been entered into, and that the Griever's
Supervisor, Mr. Thayne, had effectively communicated the Employer's
acceptance of both contracts to the Grievor. Counsel argued in the
alternative that in the circumstances of this contract, communication
of acceptance was not required.
Having considered the written submissions carefully, we are
unable to agree that valid contracts had been entered into by the Parties.
To constitute a valid contract, there must be both an offer and an
acceptance.
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In the instant Grievance, we are satisfied that an offer
was made by the Grievor to the Ministry on January 21, 1983. We
accept the Grievor's evidence that the rates of pay were not included
in the contracts on that date; however,we do not consider that omission
to be a material defect. By that time, the Parties had an agreement
regarding rates of pay and they were also guided by the rules and
regulations of the Ontario Inflation Restraint Act.
The evidence established that the offer of employment was
accepted by the Ministry on January 28 when John Goodman signed the
contracts as designee of the Attorney-General. However that acceptance
was never communicated to the Grievor prior to the Ministry's change
of heart on March 16, 1983.
The law is clear that except in the case of offers contemplating
acceptance by conduct or except where the offeror or the terms of the
proposed contract dispense with communication of acceptance, an accep-
tance must be communicated to the offeror to constitute a valid and
binding contract. See generally Hobart Investment Corporation Limited
v. Combo Holdings ~Ltd. (1977), 16 N.R. 1 (S.C.C.); Charlebois v. Baril
(1928) S.C.R. 88; Thierry vs. Thierry (1956) 2 D.L.R. (2d) 419;
Lanqlois and Canadian Commercial Corporation (1956) 4 D.L.R. (2d) 263;
Pacquet Apartments and Masternak (1965) 2 O.R. 350; and Holmes v. Alexson
(1975) 7 O.R. (2d) 11.
As a general rule, the acceptance of an offer is not complete
until communication of that acceptance has been received by the offeror,
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subject of course to certain limited exceptions. Here, we are of
the opinion that the facts do not fall within the exceptions con-
templated by the general rule. In the instant Grievance, acceptance
means communicated acceptance.
On the evidence presented, we are unable to find that Mr.
Thayne communicated acceptance on behalf of the Ministry by statements
he may have made to the Grievor. Clearly, Mr. Thayne had no such
authority to act on behalf of the Bin.istry.
The Parties have agreed that the Board is without jurisdiction
to review the reasons for non-renewal of the Griever's contracts.
In the result, the Board is without jurisdiction to consider
the matter further.
DATED at Brantford, Ontario, this 1st day of March , A.D.,
1984.
R.L. Verity, Q.C. -A;Vice-Chairman
J. Morrow -- Member