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HomeMy WebLinkAbout1985-0694.Simpson.86-10-16IN THE MATTER Of AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD Before: For the Employer: Hearino: -i OPSEU (Joanne Simpson) - and - The Crown in Right of Ontario (Ministry OF Correctional Services) Ross L. Kennedy J. McManus W. A, Lobraico Ian Roland Counsel, Gowling and Henderson Barristers and Solicitors J. F. Benedict Manager, Staff Relations and Compfnsacion Ministry of Correctional Services March 10. 1986 Griever Employer Vice-Chairman Member Elembcr - 2 - .--- AWARD The Grievor, during her employment with the Employer, was a public servant appointed to the unclassified service in accordance with the provisions of Section 8 of the Public Service Act, R.S.O. 1980, c.418. She was employed continuously from the effective date of her first contract, September 28, 1982 until June 28, 1985, the expiry date of her last contract with the Employer. There were in total nine such contracts, the first eight of which placed the Grievor in the classification of a Clerk 2 Filing. The final contract which became effective March 3, 1985 to expire June 28, 1985 was for the classification of Clerk 3 General, and the position title for the Grievor's job was Data Identification Clerk. The contracts which were filed on the hearing would indicate that frequently they were not actually prepared and signed until a substantial period of time subsequent to the expiry of the prior contract and the effective date of the next contract. For example, the contract that purported to be effective January 1, 1984 was not signed until January 16, 1984. The contract to be effective April 2, 1984 to expire September 30, 1984 was not signed until October 3, 1984.. The contract that became effective October 1, 1984 to expire March 31, 1385 was signed December 27, 1984, and the final contract which became T - 3- 3 effective March 3, 1985 to expire June 28, 1985 was not signed until May 31, 1985. As previously stated, the expiry date of the Grievor's final contract with the Employer was June 28, 1985. On that date the Manager of Client Information Systems, R. A. Wills, handed to the Grievor a written memorandum to the following effect: Th of ,is is to advise you that in accordance with Section 3.11 the Collective Agreement, your services are no longer required effective today, i.e., June 28, 1985. Also, in accordance with Section 3.11, you will receive pay in lieu of the one week's notice. The Grievor filed a grievance alleging unjust dismissal and claiming full reinstatement will all rights and benefits. The position taken by the Employer was that the Grievor was a contract employee whose contract had expired and that this Board did not have jurisdiction to review the matter. It was the Union's argument that the Grievor occupied a position within the classified service, and therefore, notwithstanding the existence of the contracts, she had to be considered as a member of the classified service and entitled to all of the protections and benefits of the Collective Agreement. In the alternative, the Union argued that if she were considered to be - 4 - a member of Vie unclassified service and subject to the provisions of Article 3 of the Collective Agreement, the' situation did not constitute a termination of the contract but rather was a dismissal without just cause. The parties agreed that the necessary evidence with respect to the issues would not be lengthy and that it would be expedient to proceed to hear that evidence and determine the issue of jurisdiction and all other matters together. The decision with respect to the Grievor was made by Wills. It was his evidence that there were a number of contract employees in his department, and all of the contracts were expiring as of June 28, 1985. Among those contract employees were a group of employees hired initially in January of 1985 for some special projects and to clear up backlog in some areas. Because of budgetary constraints Wills was faced with the necessity of reducing the complement of contract employees by one. He selected the Grievor as the employee who would be let go. It was his evidence that he based the decision mainly on punctuality and attendance. All other contracts, including those of employees who initially commenced employment in the department in January of 1985, were renewed. With specific reference to punctuality and attendance, it was Wills' evidence that in comparison to the bulk of employees -5- the Grievor's-record was fair. Copies of the departmental attendance register identifying the occasions on which the Grievor was absent, late, or left work early for the period of January to June of 1985 were filed on the hearing. Wills indicated that this material was, in fact, gathered together shortly after June 28th. Wills agreed that at no time had he or anyone else to his knowledge had any discussions with the Grievor with respect to her punctuality and attendance, and she had never been disciplined with respect to it or warned that it could lead to the non-renewal of her contract. In addition, no evidence was provided whatsoever with respect to the Grievor's attendance record over the prior period of her employment nor was any information provided with respect to attendance records and punctuality of other employees within the department or more particularly of the other employees whose contracts were also up for renewal. In January of 1985 the Grievor learned of a temporary vacancy that would occur by reason of a maternity leave and forwarded a memorandum to Wills requesting the opportunity to fill the position. The Grievor was not &ccessful, but Wills advised her that he would consider her for the next job that became available. In March the position of Data Identification Clerk, a position in the classification of Clerk 3 General did become available due to the promotion of the incumbent. That __~~ ~~~ -6- r n position wZss'-a permanent position, but it was not posted by the Employer. The Griever did successfully apply for it, and that was the job that she filled for the duration of her employment with the Employer. It was Wills' evidence that there was no complaint about how she performed that job. Subsequent to June 28, 1985, the job was filled by a contract employee who was one of the employees whose contracts had been renewed as of June 28th. Since that date the position has continued to exist and has been filled by contract employees with the exception of one period of time when it was filled by a permanent employee. To this day the position has not been posted, and it was Wills' explanation that the Department was in the midst of organizational changes, and it was considered prudent to withhold a permanent appointment until those changes were completed. As previously stated, the Grievor assumed the position of a Data Identification Clerk effective March 3, 1985. That move involved an entitlement to an increase in salary. There was a serious and significant delay in the implementation of that salary increase. The Grievor on several occasions, both orally and in writing, pointed out to Wills that the salary increase had not been implemented and that she had not received a new contract. Finally, on May 21, 1985 the Grievor submitted a grievance with respect to the salary and contract situation. -?- She had ap@Fently been warned by her colleagues that taking such action could jeopardize the subsequent renewal of her contract, and she specifically expressed such concern in the grievance form that she filed at that time. In any event, the result of that grievance, which was dated May 1, 1985, was that on May 6, 1985 Wills finally did forward to the personnel branch the necessary instruction to implement the changes. Apparently all that was required in the circumstances was a simple half-page memo outlining the changes that had taken place. In his'evidence, Wills' explanation for the delay was that he simply did not get around to doing the paper work due to the pressure of other work, and he agreed with counsel for the Union that the incident had been an embarrassment to him with his superiors. Certain provisions of the Pubiic Service Act, P.S.O. 1980, c.418 are to be considered in relation to this grievance. They provide as follows: 1. In this Act, (a) "civil 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; (b) "classified service" means the part of the public service to which civil servants are appointed; (ej -- “Crown employee” means a person employed in the service of the Crown of any aqency of the Crown but does not include an employee of Ontario Hydro or the Ontario Northland Transportation Commission: (5) (i) 6. - (1) (2) 7. 8. - (1) "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 the minister, and "public service" has a corresponding meaning: "unclassified service" means the part of the public service that is composed of positions to which persons are appointed by a minister under this Act. R.S.O. 1980, c. 418, s. 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. The Commission shall appoint the person nominated under subsection (1) to a position on the probationary staff of the classified service for not more than one year at a time. R.S.O. 1980, c. 418, s. 6. 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 of the classified 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. 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 unclassified service in any Ministry over which he presides. - 9 - 2, n li]- 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, 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, where, in the definition section, the following is set out: 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, (v) 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, - 10 - 5 3 --- (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, (ix) a person employed in the office of the Provincial Auditor, or (x) a person employed by or under the Tribunal or the Grievance Settlement Board: ' Cm) "public servant" means a public servant as defined in the Public Service Act and "public service" has a corresponding meaning: In addition, reference may be made to certain provisions of the Collective Agreement, which provide as follows: 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. ARTICLE 3 - SEASONAL OR PART-TIME EMPLOYEES 3.1 The only terms of this Agreement that apply to 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. -ll- ? T 3.14 The following Articles shall also apply to seasonal or part-time employees; Articles 1, 9, 11, 12, 15, 16, 17, 21, 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. It was the position of the Employer that on the evidence there had been no violation of the Collective Agreement and that this Board possessed no jurisdiction to provide any remedy in the circumstances. It was argued that the Grievor was a public servant in the unclassified service, appointed pursuant to Section 8 of the Public Service Act, and that upon the expiration of that appointment by virtue of the provisions of Section 9 of that Act, she ceased to be a public servant. It was argued that the reasons for the non-renewal of the contract were irrelevant and that, by statute, her employment status ceased. Reliance was placed on prior decisions of this Board such as Bond 173/78, (Adams), Johnson and Szpakowski 72/76, (Swan), Skalesky 429/81,(Draper) and Humeniuk 614184, (Springate). The first argument made on behalf of the Union focused on the particular definitions relating to civil servants, public servants, classified service, and unclassified service - 12 - .1 - --. contained in the statutes and which are previously set out in this award. The substance of the submission was that in evaluating the status of an employee for the purposes of the Collective Agreement it was proper to focus, not on the particular employee but, on the position occupied. It was argued that the classified and unclassified services referred to various positions, and that if an employee occupied a position in the classified service, that employee was entitled to all the rights and benefits of the Collective Agreement. It was argued that the job performed by the Grievor was a permanent job normally filled by a permanent employee, and that when the Grievor was placed in the job, she became entitled to all rights and benefits of the Collective Agreement. It was argued that the Employer could not unilaterally designate a position as being in the unclassified service when the position has been and remains a classified position. The Board requested that subsequent to the hearing written argument on this issue be provided by the parties. Rather than risk a loss of precision in an attempt to paraphrase the arguments, we have included those written submissions as a schedule to this award. On this 'aspect of the argument it is our conclusion that the position of the Employer must prevail. It is clear to us - 13 - that the distinction that separates employees who are entitled .to all the rights and benefits of the Collective Agreement from those who are limited by the provisions of Article 3 rests on the status of the individual employee and not on the nature Of the particular position that is occupied. It was suggested by the Union that to permit the appointment of contract employees to permanent positions could seriously erode the bargaining unit and frustrate the intent and purpose of the Collective Agreement. If that is the case, the resolution of such an issue lies outside the parameters of this grievance. The Public Service Act creates the distinction between the classified and unclassified service, and it creates that distinction not on the basis of the particular jobs to be performed but rather on the basis upon which the employment status of a particular employee is created. Pursuant to that Act, a civil servant is, by definition, someone whose employment status is created under Section 6 and 7 of that Act. If the status is created under Section 8, as was the Grievor's, that person is not a civil servant, irrespective of what job is being performed. That person is a public servant and therefore comes within the recognition clause of the Collective Agreement. No action of the Employer with respect to the Grievor can change her status as established by the provisions of the Public Service Act and the Collective Agreement. Article 3 of the Collective Agreement does not refer to the fi I’ ,, - 14 - 2 .m classified-of unclassified service. It refers only to employees who are not civil servants. The Grievor clearly is is not a civil servant within the definitions of the Public Service Act. Whether there was any impropriety on the part of the Employer in placing her in the permanent position which she occupied is beyond the scope of this grievance. Whatever the nature of the position she occupies, if she is not formally created a civil servant within the meaning of the Public Service Act, she is subject to the provisions of Article 3. The Union argued in the alternative that, if the Grievor were found to come within the provisions of Article 3 of the Collective Agreement, then the Employer's actions constituted a dismissal without just cause. The reason relied upon by the Employer relating to punctuality and attendance was not supportable on the evidence, and the more likely explanation of the action related to retribution for the Grievor's action in launching a grievance at the end of May. She had been employed for a period of close to three years with no complaints whatsoever about her work performance. She was performing satisfactorily in her job, and that job continued to exist and was f-illed by a contract employee subsequent to the purported termination of her contract. The contracts of employees who had only been in the department since January of 1985 were renewed at the end of June. The purported reason for - 15 - the non-renewal of the Grievor's contract does not stand up to scrutiny, and therefore the only logical conclusion would be that the non-renewal of her contract related to her actions in grieving what was clearly acknowledged by the Employer to be a legitimate complaint on her part. Reference was made to the decision of this Board in Miller and MacPhail 530/82 and 531/82 (Verity), which was considered by the Divisional Court of Ontario (Craig J., J. Holland, J. and Boland, J., unreported March 21, 1984). In that case the distinction between a dismissal and a termination in the context of Article 3 of the Collective Agreement was recognized, and it was held that in such a situation the Grievance Settlement Board was not limited by the provisions of Article 3.11 in the fashioning of a remedy. That decision was upheld in the Court of Appeal (Howland, C.J.O., Morden, and Thorson, J.J.A., unreported February 18, 1986). It was argued by the Union that it was fanciful to make a distinction between a termination during the contract and one that took place at its expiry date where the employee involved has been continously employed for a period of time on a series of contracts, some of which were not actually renewed in writing until well into the succeeding term. It was argued that on the evidence there.was good reason to conclude that if the Employer had acted properly, a new contract would have been entered into. There existed no reason not to renew the contract, and it was argued that in these circumstances we .i Ti: - 16 - have jurisdiction to determine whether, underneath it all, there has been a dismissal without just cause. There clearly had not been simply a termination that had nothing to do with the particular individual involved. It is the conclusion of this Board that our jurisdiction is affected by the timing of the purported termination of the employment status. The distinction between a termination and a discharge applies during the currency of a contract of employment created under Section 8 of the Public Service Act. That is not the situation when the contract expires on its terms. In the decision of this Board in Henderson, 506/85 (Verity) the following is stated at p. 9 of the decision: There is no provision in the Collective hgreement, or in the Public Service Act, or in The Crown Employees Collective Bargaining Act that compels an Employer to renew a term contract of employment. On the contrary, Section 9 of the Public Service Act makes it clear that the employment of a Public Servant expires at the expiration of a term contract. Equivalent statements are made by Mr. Verity in his decision in O'Hara 1596/84, p. 25, wherein,in considering the appropriate remedy in a situation of discharge during the currency :of a contract of employment, it was considered that the contract would not have to be renewed upon its expiry in accordance with its terms. Similar conclusions were reached in the prior decisions of this Board that were relied upon by the Employer and previously cited in this award. - 17 - In su%niary, it is our conclusion that the provisions of Section 9 of the Public Service Act deprive us of any jurisdiction to grant a remedy to the Grievor. She became a public servant under the provisions of Section 8 of the Act, and such appointment is for a specific period only. That period expired for the Grievor on June 28, 1985, and she thereupon ceased to be a public servant. Therefore, she no longer comes within the recognition Article of the Collective Agreement and is not entitled to its rights and benefits. The situation as at June 28, 1985 differs from all of the prior expiries of her contracts of employment. In the earlier situations, with the obvious concurrence of her Employer, she continued to work, and the parties by their conduct could be considered to have created a new contract of employment, the terms of which were subsequently confirmed in writing. On June 28, 1985, however, the Grievor was specifically advised that there would be no subseque~nt contract of employment. From that point on her employment status ceased by operation of statute. In the result, therefore, it is our conclusion that this grievance must be dismissed. We have reached that conclusion reluctantly. The Employer's conduct in this matter is singularily hard to understand. The evidence does not support the Employer's allegations with respect to the Grievor's attendance and punctuality. The circumstances surrounding the - 18 - )lay grievance create a high probability that that was the motivating factor behind the decision not to renew the Griever's contract. She was perform& competently in a job that continued to exist and for which another contract employee with considerably less seniority than the Grievor had to be trained to fill. Notwithstanding those considerations, however, we are aware of no authority or provision that can require the Employer to renew a contract upon:its expiry. DATED this 16th day of October, 1986. Ross L. Kennedv “I dissent” (Dissent to follow) J . McManus /&&l& /&52& W.A. Lobraico File 0694/85 l"HE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD ARBITRATION IN THE MATTER OF a grievance between OPSEU (J. Simpson) as Griever and The Crown in Right of Ontario (Ministry of Correctional Services) Employer. SUBMISSIONS ON BEHALF OF THE GRIEVOR 1. Following completion of evidence and argument before the Grievance Settlement Board on Monday, March 10, 1986, the.~Board requested that the Union provide it with written argument concerning the applicability of Article 3 of the Collective Agreement to the facts of Joanne Simpson's grievance. In particular, we argued, on behalf of the Grievor, that she was covered by those provisions of the .Collective Agreement other than Article '3 and that the Grievance Settle- ment Board should so find on the basis of the facts presented in evidence before it. As directed by the Board, we have restricted these written submissions to this one issue, although our argument at the conclusion of the hearing on March 10, 1986 also addressed other issues. 2. Article 1.1 of the Collective Agreement defines the Collective Agreement bargaining unit as "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." -2 - " --- 3. "Public servant" is defined in clause (m) of subsection 1 of Section 1 of the Crown Employees Collective Bargaining Act as follows: _ "Public servant" means a public servant as defined in the Public Service Act and "public service" has a corresponding meaning." "Public servant" is defined by the Public Service Act as follows: " 1 . In this Act, (9) "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;" 4. Those public servants who are excluded from the bar- gaining unit by virtue of clause (f) of subsection 1 of Section 1 of the Crown Employees Collective Bargaining Act are 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, - 3- ? -.-- (iv) (v) (vi) (vii) (viii) (ix) (x) 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, a student employed during the student's regular vacation period or in a co-operative educational training program, a person not ordinarily required to work more than one-third of the normal period for persons per- forming similar work except where the person works on a regular and continuing basis, 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 accor- dance with its program of providing temporary help, - - a person engaged and emp of Ontario, mloyed outside a person employed in the office of the,Provincial Auditor, or, a person employed by or under the Tribunal of the Grievance Settlement Board;" 5. In summary, the bargaining unit covered by the Collec- tive Agreement covers public servants except those public servants that are excluded under the clause that defines employee in the Crown Employees Collective Bargaining Act. 6. The Public Service Act divides the public service -4- ,: TIC into the "classified service" and the "unclassified service". The classified service is defined in the Public Service Act as - ‘0 1 . In this Act." (b) "classified service" means that part of the fd/;e -1 service to which .M servants are ap- pointed; c ,'G'. '/ and the Act also defines the "unclassified service" as I’ 1 . In this Act, (i) "unclassified service" means the part of the public service that is composed of positions to which persons are appointed by a Minister under this Act; 7. Both the definition of "classified service" and "un- classified service" refer to parts of the public service. The definition of "unclassified service", in referring to a part of the public service, refers more specifically to "positions" in that part of the public service. Neither definition refers to individuals, but to either a part or positions to which individuals are appointed. 8. Regulation 881 under the Public Service Act particu- larly defines the unclassified service in Section 6 of that regulation "6 (1) The unclassified service is divided into the following groups: 1. Group 1, consisting of employees who' are employed under individual contracts in which the terms of employment are set out and who are employed, . -5- ii vc (i) (ii) (iii) (iv) (v) 2. Group on a project of a non-recurring kind, in a professional or other special capacity, on a temporary work assignment arranged by the Commission inaccor- dance with its program for providing temporary help, for twenty-four hours or less during 'a week, or during their regular school, college or university vacation period or under a co-operative educational training program. 2, consisting of employees employed - . _ on a proJect or a season or recurring klna which does not require the employees to be employed on a full-time, year round basis. (2) Every person who is employed in the unclassified service at the time this Section comes into force, (a) shall be appointed to Group 1 or Group 2 of the unclassified service as determined ..I by the terms of employment specified in paragraph 1 and 2 of subsection (1); or (b) shall, if qualified, be assigned to a vacant position in the classifed service. 9. In summary, the public service is divided into the "classified service" and the "unclassified service" which are defined as parts of' the public service by reference to positions, including particular kinds of positions, in the public service. What is not part of the classified service is part of the unclassified service and likewise, what is not part of the unclassified service is thus part of the classified service. - 6 -. 7 -.-- 10. Article 3 of the Collective Agreement applies to bargaining unit members who are public servants but who are in that part of the public service referred to as the "unclassified service". When one compares those employees excluded by clause (f) of subsection 1 of Section 1 of the Crown Employees Collective Bargaining Act to Section 6 of Regulation 881 under the Public Service Act, those employees that are left to be covered by Article 3 of the Collective Agreement are, (i) those employees who work for twenty-four hours or less during a week (Section 6 (1) 1. (iv) of Regulation 881 under the Public Service Act) but who ordinarily work more than one-third of the normal period for persons performing similar work except where the person works regular and continuing basis. (Section Tn(ly (h) (vi) of the Crown Employees Collective Bargaining Act), and (ii ) employees "employed on a project of a seasonal or recurring kind which does not require the employees to be employed .on a full-time, year round basis" (Section 6 (1) 2. of Regulation 881 under the Public Service Act). 11. The remaining part of the public service and in parti- cular those .positions w~hich are regular full-time positions in which employees are employed on a year round basis 'are part of the "classified service" to which civil servants are appointed. 7. - I - 12 .' The. position filled by Joanne Simpson when she was ,last employed by ,the Ministry of Correctional Services was a -position which fell. within the classified service of the public service. It did .not fit within any of the categories of Section 6 (1) of Regulation 881 under the Public Service Act and thus was a position for all purposes, at the time - Joanne Simpson filled. it, in that part of the public service to which civil~servants are appointed, i.e., the "classified service". It was a classified position. The fact that Joanne Simpson was placed in such a position without any qualifica- tion or restrictions that would take it out of the classified service means. that Joanne Simpson assumed the position of .a person within the classified service. Thus, she has the benefit of those ,articles of the Collective Agreement other than Article 3. 13. Put another way, Joanne Simpson must be treated as a civil servant under the Collective Agreement as she has been placed in a position in that part of the public service (i.e., the classified service) which may only be filled by civil servants. 14. Otherwise, if one accepts the employer's analysis, one focuses on individuals rather than positions. ~According 1 -8- .i -.i to the employer, it may unilaterally designate an employee as a member of the unclassified staff for an indefinite period of time, whatever the position the person fills. In effect, the employer may, in this way, deny an employee the full benefit of the Collective Agreement, simply by designating that individual as a ~member of the "unclassified staff". Such a fallacious interpretation of the legislation and collective bargaining regime denies any objective distinc- tion between the "classified" and "unclassified service". 15. In his argument on March 10, 1986, Mr. Benedict stated that the employer was entitled to designate any person or any position as part of the unclassified service. To accept Mr. Benedict's argument and the approach taken in this case by the employer renders any objective distinction between .,.the classified and unclassified service entirely meaningless. The employer may, at will, turn the entire public service, and the entire bargaining unit into an unclas- sified service and thus deny the members of the bargaining unit the rights that they would otherwise have to the working conditions and-benefits in the Collective Agreement, apart from those found in Article 3. 16. The exercise of distinguishing between the classified and unclassified service can not be one of labelling or defining individuals but rather one of identifying positions ‘i -9- --- i.5 either classified or unclassified. This is carried out by reference to Section 6 of Regulation 881 out of the Public Service.Act. 17. A decision of the Ontario Public Service Labour~ Rela- t ions Tribunal, Ontario Public Service Employees Union and the Crown in Right of Ontario (Ministry of Colleges and Universities) (file #5/76) dated November 24, 1976 dealt with a similar issue in the context of an application that a grievor was an employee within the meaning of the Crown Employees Collective Bargaining Act. Similarily, the employer cannot simply exclude an employee from the benefits of the working conditions agreement, other than Article 3, by uni- laterally designating persons to fall outside the ambit of those articles of the Collective Agreement other than Article 3: To quote the Tribunal at page 4: "On the other hand, it is not open to the employer to merely arrange a~ work assignment through the civil service commission and deem it temporary and in that way circumvent the provisions of the Crown Employees Collective Bargaining Act which grants collective barsainins to smplovees of the Crown. The emolover by that method cannot unilaterally designate persons to fall outside the ambit of collective bargaining: it cannot exclude the applicant or others from being employees in the bargaining unit merely by 'arranging their work assignments through the civil service commission or an arm of that commission such as G.O. Temporary." .! - 10 - --- 18. In summary, the employer placed the grievor in a position in the classified service in the absence of factual circumstances that indicate that it could treat such a posi- tion as part of the unclassified service. It follows that the employer cannot deny the grievor the status of a person employed in a position (in the classified service) and the rights and benefits negotiated on the griever's behalf. ALL OF WHICH IS RESPECTFULLY SUBMITTED ON BEHALF OF THE GRIEVOR. Ian J. Roland, Esq. Of Counsel for the Ontario Public Service Employees Union -THE. CROWN EMPLOYEES COLLECTIVE BARGAINING ACT The Grievance Settlement Board IN THE MATTER of a grievance between Ontario Public Service Employees Union (J. Simpson) and the Crown in Right of Ontario (Ministry of Correctional Services) GRIEVANCE SETTLEMENT BOARD FILE 694185 SUBMISSIONS ON BEHALF OF THE EMPLOYER 1. In the following submissions rhe employer is only responding CO the union’s submissions received by the employer on April I, 1986 and under correspondence dated March 27, 1986 from Mr. Ian Roland. 2. The employer submits that the statutory framework (i.e. Public Service Act and the Crown Employee Collective Bargaining Act) and Article 3 (Seasonal aad Part-time employees) of the Collective Agreement contemplates the treatment of employees, not positions for the following reasons: A) 6) Cl D) E) Section 4(d) of the Public Service Act states that the Commission should.asstgn persons to positions in the classified service and specify the salaries payable. Section 8 of the Public Service Act provides that a Minister may appoint a person to the unclassified staff. Section 9 of the Public Service Act states that a person who is appointed to a posttion tn the public service for a specified period ceases to be a public servant at the expiration of that period. Article 3 of the Collective Agreement provides for the treatment of employees who are not civil servants: for example, Article 3.3 (overtime), 3.4 (reporting pay), 3.5 (holidays), 3.6 (vacation pay), 3.7 (attendance credits and sick leave), all refer to “employees”. Contrary to the union submission at paragraph 16, the statutory framework and Article 3 of the Collective Agreement clearly conrempiate the treatment of persons or employees, not positions. n 1 CL 2 2. The employer submits that whether a person is a civil .-want or public servant or is on the classified or unclassified staff depends on the nature of the person’s appointment and not the nature of the position occupied, and the employer says that for the following reasons: A) 8) Cl D) El F) Exhibit II is clear in that the grievor was appointed to the unclassified service and that she was an unclassified employee and not a civil servant by definition under Section I(i) of the Public Service Act and Section 6 of the Regulations made thereunder. As a Crown employee who is a public servant and not a civil servant the grievor is governed by Article 3 of the Collective Agreement. Ret AMBREY 429184. The application of Article 3 is clear in that it only applies to employees who are not civil servants and the definition of civil servant is set out in Section I(a) of the Public Service Act. It does not apply to positions. Contrary to the union submission at paragraph IO, Article 3.1 only applies to employees who are not civil servants. The grievor was not a civil servant. The grievor was not an employee who is “left” after a creative comparison of Section l(a)(f) of the Crown Employees Colecrive Bargaining Act and Section6 the Regulattons made under the Public Service Act. The grievor was an employee and a public servant on the unclassified staff and was covered by the provisions of Article 3 of the Collective Agreement. Paragraph 9 of the union’s submission: We have to take the law as we find it. The status of the grievor is determined by the clear language of the Collective Agreement and of the legislation, and not by some Process of deductive reasoning. The Public Service Act divides rhe public service into two and only two parts: the unclassified service and the c1assifie.d service. There are no others. Article 3.2.1 of the Collective Agreement provides that the rate of the equivalent civil servant classification should apply to unclassified employees. Nothing in the legislation or the Collective Agreement provides that an employee who is not a civil servant ought to be treated as equivalent to a civil servant for any purpose other than wages. Nothing in the legislation or the Collective Agreement provides for or contemplates the type of employee envisaged by the union, that is, someone who is not a civil servant but who ought to be treated for all purposes as a civil servant (union submission at paragraph 13). There is no one equivalent to a civil I -3- .‘; --- servant. There are only civil servants and public servants, but the union attempts to construct a new category of employee by comparing the provisions in the Crown Employees Collective Bargaining Act with Section of the Regulations under the Pubhc Service Act. Obviously, the intent and purpose of these two statutes are quite different. The Crown Employees Collective Bargaining Act determines who is an employee within the meanmg ofthat Act, that is, who is a member of the baraining unit. Sexon 1 of the Public Service Act determines the classified and unclassified staff in the public service. The union’s agrument that these two statutes can somehow be “dovetailed” in order to construct such a third type of employee must fail. G) Even if the appointment of the griever to the unclassified service was technically improper (as not falling clearly within one of the two groups set out in Section 6 of the Regulations under the Public Service Act), the grievor would not thereby be transformed into a civil servant. H) Contrary to the union submission of paragraph 14, the employer mav not “unilaterally designate” an employee as a member of the unclassified staff. Employees are appointed by a minister to the unclassified staff pursuant to Section 8 of the Public Service Act. An unclassified employee cannot be appornted for an indefinite period of time since Section 8 of the Public Service Act requires a minister to aopoint a nerson for a soecrfred period. In other words,-the unclassified employee is appointed for the term set out in his contract. In the case of the griever she was appointed to the unclassified service for the specified period March 3, 1985 to June 28, 1985. Finally, the employer’s analysis is consistent with the objective distinction between the classified and unclassified service that are set out in the Public Service Act. The union’s argument flies in the face of the clear language of the Public Service Act and the union’s argument would itself eliminate the distinctions set out in the Act. - 3. Jurisdiction of the Grievance Settlement Board A) Section I8 (I)(a) Crown Employees Collective Bargaining Act gives to the employer the exclusive right to determine employment, appointment, complement and organization, and such matters not come within the jurisdiction of the Grievance Settlement Board, The power of a . minister to appoint a person to a position in the unclassified service has already been noted: Section 8 PSA. .I I. -4- --B) Article 27.14 of the Collective Agreement states that, “The Grievance Settlement Board should have no jurisdiction to.alter, change, amend or enlarge any provision of the Collective Agreement”. The Board by accepting the union’s argument, that the griever was an unclassified employee who ought to be treated as if she were a civil servant for all purposes, would exceed its jurisdiction contrary to Article 27.14. C) Union submits that although grievor is not a civil servant, she ought to be treated as a civil servant (Paragraph 13). Whether or not the griever ought to be treated as a civil servant is not within the jurisdiction of the Grievance Settlement Board to determine: Johnson and Szpakowski 72/76, quoted in Humeniuk 614/84, page 10: “It is our view that, for the Union successfully to alter the impact of Section 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”. 4. Remedial Jurisdiction A) Section 19 of the Crown Employees Collective Bargaining Act sets out the remedial authority of the Grievance Settlement Board. In dismissal cases the Board has powers of reinstatement, that is, the Act contemplates restoring an ongoing employment relat=hip. In the case of unclassified employees including the griever the employment relationship ceased on expiration of the contract pursuant to Section 9 of the Public Service &. The employer submits that even if the Board found that the grievor had been unjustly dismissed, it could not reinstate or restore a relationship that has ceased. B) Even in the Miller and McPhail line of cases, where the contract was terminated prior to expiry the Board may have the authority to reinstate/or award damages, only up ro the period left on the contract. Even in those cases, the Board has no power to appoint an employee to the public service, on contract or otherwise, where the contract has expired. Therefore, the Board lacks any remedial power. ., i. 5. _-- Gordner Case The Gordner case can be distinguished from our case on both thefacts and the issues. The Gordner involved an application by the union to the Laboxtions Tribunal in which the union sought to have the applicant declared an employee within the meaning of CECBA. The issue in this case is not whether the griever is an employee, (acknowledged by the employer), but whether the grievor, who is an unclassified employee ought IO be treated for all purposes as a civil servant. .I THE-CROWN EMPLOYEES COLLECTIVE BARGAINING ACT THE GRIEVANCE SETTLEMENT BOARD ARBITRATION IN THE MATTER OF a grievancebetween OPSEU (J. Simpson) as Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer. SUBMISSIONS ON BEHALF OF THE GRIEVOR IN REPLY TO THE SUBMISSIONS OF THE EMPLOYER 1. In response to the Employer's written submissions as set out at its first paragraph numbered 2, Sections 4 Cd). 8 and 9 of the Public Service Act all refer to the appointment or assignment of persons to a position in the public service or the unclassified service. In addition, Section 6 refers to vacancies in the classified service and the appointment of persons to positions in that service. 2. The entire structure of the Public Service Act and regulations focuses on the distinction between positions in the "classified service" and positions in the "unclassified service". 3. With respect to the submissions made in the second paragraph numbered 2 of the employer's submissions, the employer argues that it alone has the unfettered discretion to deem a person a "civil servant or public servant or . . . on the classified or unclassified staff" by virtue of the "appointment of the employer, whatever the :nature of the.position to which the person'is appointed". 4. The employer's argument ignores the statutory distinc- tions made between the classified and unclassified service. The classified and unclassified service are not whatever the employer deems them to be, but rather arise out of the statutory framework that defines the services (see paragraph 6 - 9 of the original submissions made on behalf of the grievor). 5. The distinction between the classified and unclassified service, as found in the Public Service Act and regulations, must be given meaning in the context of the collective bar- gaining regime and the distinction that is carried through from .the Public Service Act to the collective agreement between the classified and the unc lassif 'ied staff of the public service. 6. The employer's analysis makes no objective distinction between the classified and unclassified service and, as exemplified by the facts of the case before the Board, would permit the employer to treat an employee as "unclassified" - 3 - by a never-ending series of notional 'contracts"~ continuously renewing her "appointment" to the "unclassified service". 7. Collective agreements, like any other contracts and like statutes, must be read as a whole. The relation of the various provisions of the statute to each other is rele- vant in determining the scope and meaning of the statute, and a provision in a statute and in a collective agreement should, if possible, be construed so as to fit within the scheme or framework of the statute or collective agreement. 8. The construction given to the words of a contract or statute, or to the words of a collective agreement, should place a consistent, rational and probable meaning on the whole of the sections referred to when read together, s antecedentibus et consequentibus fit optima interpretatio. - - E.A. Dreidger, Construction of Statutes Zed., PP. 89-91 Guest, Anson's Law of Contract, 23rd ed., at P. 141 "Again, a section of a statute should, if pos- sible, be construed so that there may be no repugnancy or inconsistency between its different portions or members.” Victoria City 38:: Bishop of Vancouver Island, (1921) 2 A.C. at p. 388 (P.C.) - 4 - "It-is elementary that all the terms of the agreement must be read together and that any board of'arbitration should be highly skeptical of an interpretation of one article which would nullify or render absurd the effect of another article." Re United Steel Workers, Local 5046 and Construction Aggregates Corp. (1959) L.A.C. 187, at p. 190 (Robinson C.C.J.) 9. In response to those submissions made at paragraph 3 of the employer's submissions, the union's argument does not require the Board to exceed its jurisdiction. The grievor was appointed to a position in the "classified service" and by virtue of being placed in such a position, must be taken to be a civil servant for the purpose of the application of the provisions of the collective agreement. 10. With respect to the points set out in paragraph 4 of the employer's submission, the employer goes beyond the issues raised in the analysis dealing with the classified and unclassified service and submits "that even if the Board found that the griever had been unjustly dismissed, it could not reinstate or restore a relationship that has ceased", assuming that the griever was a member of the unclassified service. 11. The Board in ,the Miller & McPhail line of cases has made it clear that it has the power to set aside an unjust i’ -5 - dismissal. The Board in this case, at the very least, must find that MS Simpson was unjustly dismissed and that, but for this action taken by the employer for entirely improper purposes, the grievor's employment would have continued in the normal fashion it had continued for a number of years with continuously renewed contracts, and the actual renewals formally taking place well after the beginning of the contrac- tual term and in some instances near the end of the term. 12. It is clear from the evidence that the position in which the grievor found herself was one that was regular, full-time and on-going and, on the evidence, continued to the date of the hearing of this grievance by the Board. On the Miller & McPhail and Ambrey analysis~ there was no basis upon which the employer could justify "termination" of the ongoing contractual relationship, and in the circum- stances, the Board must, both on the evidence, and on the Miller & McPhail and Ambrey analysis, conclude that the grievor has been dismissed without just cause. 13. Sect ion 19 of the Crown Employees Collective Bargaining gives the Board the authority to reinstate the grievor in her position. You may require the employer to, at the very least, pay her back-pay from the time of her dismissal, and to continue to employ her on the basis . . I. 5; -6 - it employed her up to the time of her dismissal, until such time as it has cause to dismiss her, or until it has termina- ted her employment on a legitimate basis in accordance with the Board's jurisprudence. See especially the reasoning found in the Ambrey case. ALL OF WHICH IS RESPECTFULLY SUBMITTED. __. *. , ,,’ ..i ., ;:r: ,& -,/I, Ian J. Roland, Esq. .'Of Counse:l for the Ontario,Public Service