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HomeMy WebLinkAbout1985-0694.Simpson.87-01-15i.. January 15, 1987 Mr. J. F. Benedict, Manager, Staff Relations, Personnel Branch, Ministry of Correctional Services, 2001 Eglinton Avenue East, 2nd floor, Scarborough, Ontario, MlL 4Pl Dear Mr. Benedict: RE: 694/85 OPSEU (Joanne Simpson? and The Crown in Right of Ontario (Ministry of Correctional Services Enclosed herewith, for your information, is a copy of J. D. McManus' dissent with respect to the above noted matter. Yours truly, TAI/ah encl. GRIEVANCE SETTLEMENT BOARD 694/85 IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GKIEVANCE SETTLEMENT BOARD BETWEEN: Grievor - and - THE CROWN IN RIGHT OF ONTARIO MINISTRY OF CORRECTIONAL SERVICES Employer DISSENT The majority of this Board has concluded that the Grievor "became a public servant under the provisions of Section 8 of the (Public Service) Act," and that her status as an employee was entirely dictated by the nature of the "appointment" of the Employer, irrespective of the circumstances. The majority concluded the Grievor was covered toy Article 3 of the Collective Agreement, as she was "not formally created a civil servan t within the meaning of the Public Service Act" (majority Award, p.14). The Employer purports to have the right to rely upon the individual contract of employment it entered into with Ms. Simpson. It did not renew this contract, after several years of continuous employmen t which arose based on a series of uninterrupted contracts. Specifically, the Employer relied upon the expiry date of the last contract to sever the employment relationship. The majority of the Board accepted this argument put forward by the Employer. The majority went on to conclude that it had no jurisdiction to entertain the grievance because of “the timing of the purported termination of the employment status” (majority Award, p. 16). The majority found that the expiry and non-renewal of Ms. Simpson’s individual contract meant that “her employment status ceased by operation of statute” (majority Award, p. 17). This is a reference to Section 9 of the Public Act, which provides: “a person who is appointed to a position in the Public Service for a specified period ceases to be a public ion servant at the expiration of that period.” I do not accept either the .reasoning or the conclus reached by the majority. It fails to recognize a number of important and applicable legal principles. 3. THE COLLECTIVE BARGAINING REGIME UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT - NO INDIVIDUAL CONTRACTS OF EMPLOYMENT ARE PERMITTED The employment relationship between Ms. Simpson and the Employer has been superceded by the exclusive collective bargaining relationship. Section 15 of the Crown Employees Bargaining Act and Article 1 of the Collective Agreement recognizes the Ontario Public Service Employees Union ("OPSEU") as the exclusive bargaining agent of, inter alia, Ms. Simpson. In such circumstances individual contracts of employment can be of no force or effect. This includes an individual contractual term that brings the employment relationship to an end on a specific date. "(T)he reality is, as has been for many years now throughout Canada, that individual relationships as between employers and employees have meaning only at the hiring stage and then there are qualifications that arise by reason of union security clauses in collective agreements". 1 54 Mctiavin Toastmaster Ltd. vs Aniscough et al (1975 DLR (3d) 1, at p. 6 (S.C.C.) Similarly in CPR vs Zambri (1962) 34 DLR (2d) 654 - (S.C.C.), at p. 666 Mr. Justice Judson pointed out that, "when there is a collective agreement in effect, it is difficult to see how there can be anything left outside, except possibly the act of hiring". t ? 4. Dealing with the narrow individual relationship embodied in the act of hiring that may persist in the circumstances of a collective agreement, the Ontario Court of Appeal (Kelly J.) explained the very narrow reach of this exception. It is restricted to the legal acts of offer and acceptance of~an employment relationship. The substance of the relationship is entirely embodied in the collective agreement. “(N)o doubt the existence of a collective agreement between an employer and a Union which is the bargaining agent for the employees precludes the negotiation of a contract of employment, the terms of which do not incorporate the terms of the collective agreement. But leaving aside the situation where the collective agreement compels the employer to seek his employees through the union hiring hall, the Supreme Court of Canada does no t deny the right of the employer and the employee, at the moment of hiring, to establish or refuse to establish the relationship of employer and employee ; the consensus reached by the employer and the employee is essentially a contractual one. Granted, the only contract which may then be made is one embodying the terms of the collective agreement in favour of the employee, but until there is a consensus on the acceptance by both the employer and employee of such a relationship, neither employer or employee is obliged to the other.” re Telegram Publishing Co. Ltd. and Zwelling and Essig (1975) 67 DLR (3d) 404, at p. 411 The circumstances in which the employment relationship may be severed by the employer are fundamental to the employment relationship, and encompassed wi thin the phrase "terms and conditions of employment” found in Section 7 of the Crown Employees Collective Bargaining Act ( “CECB Act"). This phrase must be given a broad meaning, consistent with the scheme of that Act, which is to permit a wide ambit of 5. bargaining that is narrowed only by those matters specifically excluded from bargaining by the CECB Act. The severence of the employment relationship, apart from dismissal, has been dealt with by the parties in Article 3.11 of the Collective Agreement. Dismissal is dealt with in the Agreement (see Article 27.6.1) and by the CECB Act where the Employer's right to "dismiss" an employee is restricted by Section 18 (Z)(c). The Board has held, and the Court confirmed, that "dismissal" and "termination" are not synonymous (see OPSEU (Miller and McPhail) and the Crown in Right of Ontario (Ministry of Correctional Services) GSB 530/82 and 531/82, Award dated April 7, 1983; Her Majesty The Queen in Right of Ontario and QPSEU, Divisional Court, unreported, dated March 21, 1984; appeal to Court of Appeal dismissed February 18, 1986). The Divisional Court stated that "the Collective Agreement distinguishes clearly between "dismissal" and "termination" (see Article 3.il and Article 27.6.2)". "Dismissal" comes about because of a reason or cause that is particular to the individual employee. The cause is generally related to culpatory misconduct (disciplinary dismissal) but may also be brough t about by a non-culpatory reason such as frequent absences of an employee for legitimate medical reasons (non-disciplinary dismissal). 6. “Termination” must be given a different meaning than “dismissal” and one that is reasonable and consistent with the provisions of the scheme of the Collective Agreement as a whole. It is significant that the parties have agreed to exclude Article 3 employees from the protection afforded by Article 24 (layoff and recall). In place of the Job Security provisions of Article 24 the parties have substituted the much narrower protection afforded by Article 3.11. Like the concept of layoff, “termination” must be understood to focus on the job functions and duties rather than on the individual. It is analogous to a layoff in that it comes about because of a shortage of work or funds or an abolition of a position or other material change in organization of the Employer that makes the employee surplus. It has nothing to do with the individual characteristics of the employee. “Termination” differs from the typical layoff provision in a significant respect. Employees who have been laid off generally have some ongoing rights in the Collective Agreement such as recall, and sometimes some other benefits, whether or not the employer-employee relationship itself has been severed (see Article 24). 7. By contrast, “termination” as used in- Article 3.11 is a complete severence of the employment relationship. In summary, the parties have substituted “termination” on one weeks notice, as set out in Article 3.11, for the detailed “job security” provision set out in Article 24 of the Agreement (see Article 3.14 1. Article 3 employees are entitled to one weeks notice of termination rather than a detailed and much more expansive rights including recall (called “re-appointment” in Article 24.14.2 and 24.14.3) found in Article 24. The collective bargaining relationship no more permits the Employer to enter into individual contracts of fixed terms of employment for Article 3 employees than it does for employees covered by all of the provisions of the Collective Agreement. The Employer may not individually contract terms of employment with 3 bargaining unit employees, and in particular it may not enter into an individual contract whereby the employment of any particular employee is severed automatically on a specific or fixed date by the imposition of a “term appointment”. The Employer has only two means of severing the employment relationship, by “dismissal” (subject to Section 18(l)(c) of the CECB Act) and by “termination” (as provided in Article 3.11). 8. The Employers has neither properly dismissed nor terminated the Grievor in this case. The majority has found on the facts, with which I agree, that the Employer’s allegations with respect to the Grievor’s attendance and punctuality are not supported by the evidence and thus cannot found cause for her dismissal. Nor was she “terminated” as that term is used in Article 3.11. Her job “continued to exist” and “another contract employee with considerably less seniority than the Grievor had to be trained to fil,l” it (see p. 18 of Majority Award). Absent a proper “dismissal” or “termination”. There is no basis upon which the Employer may sever the employment relationship with the Grievor. SECTION 9 OF THE PUBLIC SERVICE ACT As already indicated earlier in these reasons Section 9 of the Public Service Act provides: “a person who is appointed to a position in the Public Service for specific period ceases to be a public servant at the expiration of that period.” At p. 16 of the Majority Decision an earlier decision of this Board in Henderson 506/85 (Berity) is quoted as follows: “there is no provision in the Collective Agreement, 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 on the expiration of term contract (p. 9)“. 9. Does Section 9 of the Public Service Act authorize the Employer to enter into individual fixed term contracts of employment with bargaining unit members to the extent that it overrides the exclusive representation rights of the Union? Prior to 1972 the Public Service Act constituted the statutory terms and conditions of employment for public servants. In that year the CECB Act was passed. Thereafter the terms and conditions of employments are governed by the CECB Act and collective agreements negotiated or imposed thereunder for those public servants who are members of bargaining units for which representation rights have been granted under the CECB Act. This does not mean that the Public Service Act and its provisions have ceased to have any continuing operation or relevance. They continue to represent the terms and conditions of employment for those public servants who are not included in - the collective bargaining regime. In addition, there remains some matters that are excluded from the collective bargaining regime such as “conditions applicable to leaves of absence... for any elective public office or political activities or training or development” (see s.7 CECB Act). However, the Public Service Act cannot itself impinge upon the collective bargaining relationship, the hallmark which is the displacement 10. of the rights of the Employer and employees to enter into individual contractual agreements. It seems to me that there are strong and well recognized labour relations principles that support this view of the limited effect of the Public Service Act when viewed in the context of collective bargaining representation. To give effect to the intent ~of CECB Act one must give the ambit of bargaining contemplated therein a broad and liberal interpretation. The CECB Act recognizes that “employees” should have the right to collectively negotiate terms and conditions of their employment with their Employer (the Crown in Right of Ontario) and where agreement cannot be reached, matters are to be resolved by independent third party arbitration (see Sections 11, 12 and 13 of the CECB Act). Limits to this bargaining have been imposed in the CECB Act itself (see Section 7), and these limitations include some matters that are also found in the Public Service Act. For example, conditions applicable to leaves of absence for other than any elective office, or political activities (see Section 7 of the CECB Act, and Section 12-16 of the Public Service Act). From this one must conclude, expressio unius est 11. exclusio alterus, that the Legislature did not intend to super-impose section 9 of the Public Service ‘Act on the parties by permitting individual “term contracts” outside the Collective Agreement. To do so creates a separate and distinct means by which the Employer could dispense with the employment of a bargaining unit member, that is, by imposing individual term contracts with fixed expiry dates. This is a new and different method of dispensing with the employment of such employees~ which is in addition to the only two methods (“discharge” or “termination”) to sever the employment relationship of Article 3 employees agreed to by the parties or provided by the CECB Act. For these reasons I would allow the grievance and require the employer to reinstate the Grievor as an Article 3 employee with no loss of pay or benefits from June 28, 1985. Dated at Toronto this 15th day of January, 1987 1288r