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HomeMy WebLinkAbout1983-0494.Konya.85-08-28,S‘EP~6~ m3/599- 0666 494183 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ,’ Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (J. Kenya) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: R. J. Roberts Vice-Chairman E. McVey Member D. Gray Member For the Grievor: M. I. Rotman Counsel Rotman & Zagdanski For the Employer: ~ L. H. Kolyn Tounsel Crown Law Office Civil Ministry of the Attorney General Hearing: July 4, 1985 ! . DECISION At the outset of the hearing in this matter, counsel for the Ministry objected to jurisdiction on the ground that the grievance was untimely. It was agreed between the parties that it would be most convenient to hear the evidence upon the merits and postpone argument upon the pre:iminary objection.until the end cf the day. For reasons which follow, the preliminary objection is dis- missed, and on the merits, the grievance is dismissed. The evidence indicated that on November 15, 1974, the grievor began performing electrical design services for the Park Management Branch of the Ministry of Natural Resources. These services were not obtained by the Ministry through any direct contractual arrangement with the grievor. The grievor was net appointed to a Position in the Civil Service. nor wae he a member of the unclassified staff, in the sense of being hired ur.der a direct contract with the Ministry. Instead, the Ministry contracted for the services of the grievor through a technicai overload company called Plodern Technical ServicesLimited 1WS). This company, in turn, had a contract with the grievor's personal corporation, which, in turn, undertook to provide his services. The member of the management of the Ministry who was responsible for entering into this relationship, Mr. G. Ashenden, explained in his testimony at the hearing that because the period from 1974 to 1978 was a "boom period", person5 with the qualifications of the gr5evol- were scarce ar.d, as a result, :r .,.-- :...-.,,riFl,p l nr t?- Vin;strv to locate t!?em and either ,, ‘. 3. members of the unclassified.staff. It was necessary to go through technical overload companies such as MTS which kept track of such peoples and could provide their services at relatively short notice. Under this arrangement, the grievor was not paid by cheque from the Ministry. Then Ministry paid MTS, which invoiced the Ministry for the hours worked by the grievor in each pay period. Thereafter, MTS paid the griever's personal corporation with its own cheque for whatever.portion of the payment from the Ministry was, by their agreement, due. This arrangement continued from November, 1974, until July 1, 1978, when the grievor accepted a probationtiry appointment to the classified service of the Ministry. After successfully completing his probationary period, the grievor was assigned to "the regular staff. It was common ground between'the parties that none of the duties of the grievor changed by virtue of his appoint- ment to the classified staff. He remained in the same office perform- ing precisely the same electrical design duties as he had when he was supplying his services under the above-described contractual arrangement. Thereafter, in all of its documentation, the Ministry listed the grievor's seniority date as July 1, 1978. The evidence left little doubt that the grievor must have become aware of this fact at least by the end of 1979; however, the Ministry did not receive any complaint from the grievor reTardin. this seniority dzte until .I,,%. L-:- . . - 4. Supervisor, Mr. S. Covren,and followed this up with a hand-written complaint claiming that his seniority date should have been Noverrber 15, 1974, when he first commenced work with the Ministry. When the Ministry denied this claim, the grievor filed the grievance leading to the present proceedings. The preliminary objection of the Ministry was based upon the foregoing delay by the grievor in complaining about the seniority date which had been established for him. It was submitted on behalf of the Ministry that the grievor's complaint was so far out of time that any one of a number of different doctrines, including lathes, waiver, estoppel and strict application of time limits, ought to be applied by this Board to decline jurisdiction of the matter. We, however, must decline this invitation. The grievance at hand has to do with a significant aspect of the status of the grievor under the Collective Agreement, i.e., I his seniority. It has been well recognized that seniority is second only to wages in importance in the sphere of collective bargaining. It not only affects what might have happened to the qrievor in the past, but also in the present and the future. If the Ministry had interpreted the Collective Agreement in such a way as to deprive the grievor of the level of seniority to which he is er.titled, :l-.en that inrerpretati on must be taken as . . 2 ccntl7.clr.c v:olatzon o- 6 the Ccllective Agree-en: which can be qrieve2 a: a..?y tir?.e. 5. ,981 he should have.been laid off after someone else with a seniority date of July 1, 1976. That is a disciete incident and ordinarily, the time limit& set forth in Article 27 of the Collective Agreement would govern the arbitrability of the grievance. This, however, is far-different from a grievance claiming, in effect, that in present and future lay-offs, the grievbr should be laid off last; If~the submission of the Ministry were to succeed, the grievor forever would,be foreclosed from making such assertions. With this, the Board cannot agree. Accordingly, the preliminary objection is dismissed.- r Turning to the merits of the case, the submissions of the parties revolved around the interpretation and application of Article 25.1 of the Collective Agreement, relating to seniority or length of continuous service. Article 25.1 reads as follows: ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 25.1 An employee's length of continuous service will - accumulate upon completion of a probationary period of not more than one (1) year and shall commence from: -. (a) The date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service: or (b) the date on which an employee commences a period of unbroken, full-time service in the public service, immediately prior to appoint- ment.to the Classified Service. '"Unbroken service" is that which is not interrupted by separation from the public service; and "full- time" is continuous employment as set out in the ---------,-r~-nf wn-k schedrlles for the appropriate classifi- ' 6. It is evident from the provisions of Article 25.1(b), above, that if ,;he tenure of the grievor with the Ministry from November, 1974 to July, 1978, were capable of being characterized as "in the public service", the seniority date of the grievor would be deemed to be November 15, 1974. It must be concluded, however, that it is impossible to so characterize the grievor's service in the relevant period of time. It has been established in our prior jurisprudence that the expression "public service., is defined in the Public Service Act. R.S.O., 1970, Ch. 386, as amended. This definition does not encompass within its scope a period of service under a third-party contract such as that which governed the relationship of the grievor with the Ministry from 1974 to July 1, 1978. In Re Bickerstaff and Turner and Ministry of Government ~ Services (19801, G.S.B. 90/79 and 74/79 (Swinton), the Board con- sidered the question whether the two grievors, who had been under \ direct contract with the Ministry as members of the unclassified service prior to being appointed to classified positions, were "appointed" before or after January 1, 1970, within the meaning of :Ihat was then Article 14 of the Collective Agreement. On the facts there was no question that the grievors were "appointed" to the "c:~blic service", . - within the meaning cf the Public Service Act, sccra, prier to 1970. %e questicn was whether Article i4 referred t= agpcintment tc the"p,:blic ser:*Lce" cr z:he "ci*~il service", which by c?efir.ition, SO:ely UXCiTFaSSed C:Z,SSifiCZd iT,cSi:iCnS. . . 7. until April, 1972. In considering the matter, the Board proceeded upon the basis that the terms "Public service" and "civil service", as used in the Collective Agreement, were intended by the parties to I bear the same meaning as. in the Public Service Act, supra. In fact, neither the Ministry nor the Union contended that matters should be otherwise.. It was evident from the award in Bickerstaff and Turner, supra, that both the Ministry and the Union founded their arguments upon the same equation. See Id.,, at pp. 3-6.There does not appear to be any reason for this panel of the Grievance Settlement Board to conclude that in accepting this view and basing its decision thereupon, the panel in Bickerstaff and Turner was clearly wrong. Accordingly, we take as our starting point that when the parties referred to the "public service" in Article 25.1 (b) of the Collective Agreement, they intended to refer to "public (. Service" as defined in the Public Service Act. , The relevant provision of the Public Service Act is section l(g) I which reads as follows: 1 (g) "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 meaning: In order to,have served in'the public service, within the meanin? a. by the Lieutenant Governor in Council, the Civil Service Commission, or by a minister. Further provisions of the Act tend to indicate that the foregoing reference to appointment under the Act was not intended to encompass persons like the grievor who served with the Ministry under third party contracts with outside employment agencies. The Act tends to indicate that the "public service" solely was intended to be comprised of two components: the classified and unclassified service. For example, under section l(b), "classified service" is defined as "the part of the public service to which' civil servants are appointed". Under section l(i) "unclassified service" is defined as "the part of the public service that is composed of positions to which persons are appointed by a minister under this Act.” There is no reference to some other part of the "public service" composed- of persons serving under third-party contracts. In Bickerstaff and Turner, supra, the same view was taken by the Board with respect to the use of the term "public service" in Article 25.1 (b) of the Collective Agreement. After reaching the conclusion that under the ?*ublic Service Act, the "public service” was composed of persons in the classified and un- classified service, the Board concluded, "Asicle 25.1(b) allcws individuals CO obtain seniority credit fcr at least soce ?erio?s in the unclassified service,...irmediate!y prior to apgoirtcent tz t n e =lassifLed service." Id -* at F. 11. No reference was made to _. .^__~. I * 9 : l 9. In light of the above, it must be concluded by the Board that the period from November, 1974 to July 1, -1978, when the grievor was under a third-party contract with MTS, did not con- stitute "service in the public service" within the meaning of Article 25.1(b) of the Collective Agreement. Accordingly, the The Ministry was in compliance with the Collective Agreement when the grievor was assigned a seniority date of July 1, 1978. Despite having reached this conclusion, the Board must express a degree of sympathy for the plight of the grievor. The evidence left little doubt that if Xr. Ashenden had been able to find the grievor on his own, in all likelihood the grievor would have been appointed to the unclassified service under a direct contract with the Ministry. If this had occurred, the grievor would have served in the "public service", within the meaning of Article 25.1(b), and his seniority date would have been as claimed by him. It might seem incongruous that the scarcityof persons with the grievor's talents, which forced P!. Ashenden to go to LYTS, ultimately should deprive the grievor of the benefit of Article 25.1(b). Nevertheless, the Board is constrained to interpret the Collective Agreement in accordance with the applicable jurisprudence, and this has led to the conclusion that when the parties used the term "public service" in this provision, they did not contemplate coverizr; ?ersor,s in the position of the grievor. grievor was not entitled to h seniority date of November 15, 1974. 10. The grievance must be dismissed. DATED at London, Ontario, this 28th. day of August, 1985 "I dissent without written reason: E. McVey, Member ( D. Gray, Me