HomeMy WebLinkAbout1985-1527.Wood.87-04-29i
1527163
IN THE MATTER OF AN ARBITRATION
UNDER
THE CROWN EMPLOYEES COLLECTIVE SARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Ken Wood)
- and -
The Crown i< Right of Ontario
(Minisfry of Transportation and Communications)
Before:
For the Griever:
For the Employer:
Hearing Dates:
R. J. Delisle, Vice-Chairman
J. Best Member
W. A. Lobraico Member
S. Goudge .'
Counsel
Gowling and Henderson
Barristers and Solicitors
L: McIntosh
Law Officer
Crown Law Office Civil
Ministry of the Attorney General
September 24, 1986
December 10, 1966
January 21, 1967 .\
Griever
Employer
.C’
The grievor complains that he was dismissed without just
cause, denied unfairly a permanent position, and here seeks
reinstatement. He initially claimed damages for mental anguish
but abandoned this claim at the hearing.
The grievor was appointed to the unclassified staff of the
Licensing and Control Office of the Ministry on August 22, 1983.
His appointment, to the position of Operator 2, Microfilm, was
for a period of some three months, said appointment to expire on
i November 25, 1983 (Exhibit 2). BY a series of extensions
(Exhibits 3, 4, 5 and 6) the grievor was continued in his
employment with renewals occurring every three months. The last
renewal had an expiry date of December 27, 1985.
Michael Nagel, Manager of Support Services for the Licensing
and Control Office, testified that in the autumn of 1985, the
office received approval for fifteen classified positions and the
positions were posted (Exhibit 7). He explained that on moving
the operation to Kingston in 1983, a new system was being put in
place and a shake down period was necessary to determine what the
normal demands would be. The job posting was open to
'unclassified staff on contract at time of posting". This
*included the grievor and seventeen' others. There were eighteen
applicants for the fifteen positions and a competition was held.
The selection panel consisted of Nagel, Theresa Dickson, Head of
Data Conversion and Microfilm,, Bob Cronkwright, Personnel
Administrator, and Fay Brown, Supervisor of the Microfilm Unit.
.
.
2
The Selection Profile equally weighted Technical/Operational
Skills and Personal/Interpersonal Skills. All eighteen
applicants worked for FaY Browne and she did individual
assessments of each employee according to the adopted profile.
These assessments were presented to the panel and reviewed.
There were no personal interviews. The griever's score ranked
him eighteenth and last.
ci.
On December 19, 1985 Dickson, Browne and Nagel met in
Nagel's office and decided to advise the unsuccessful candidates
singularly. As Nagel was advising the grievor, he stood up, said
he'd heard "enough of this~ bullshit" and left the office. Nagel
followed the grievor out on the floor of the Microfilm Unity and
the grievor shouted "I hope you enjoy your fucking life, Nagel".
When Nagel asked him about the remark the grievor repeated it, in
the hearing of the rest of the staff, and left. On December 19,
Nagel wrote a letter to the grievor and caused it to be hand
delivered. The letter read:
i This is to inform you that your contract .expires on December 27, 1985 and will not be renewed.
As a result of your action on December 19, 1985, you are terminated immediately: however, you will receive pay until December 27; 1985.
Naqel testified that by his letter he meant to convey, one,
that the griever's contract would not be renewed and two, that he
need not report for the remaining period on his existing
contract. Nagel testified that he didn't think it advisable for
the grievor to finish his term: that:it would be "inappropriate,
disruptive of the organization, animosity could be created and I
3
was worried about potential damage from sabotage of the
equipment'!.
Nagel testified that the other two unsuccessful candidates
had their contracts renewed for a final three month term and it
had been his intention to offer a similar last renewal to the
grievor but was denied the opportunity by the griever's actions.
The first issue that needs to be addressed is whether the
grievor was dismissed. Section 8 of the public Service Act
provides for the appointment of a person to a position in the
unclassified service for a specific period. It was pursuant to
this authority that the grievor was appointed as a 'public
servant' in 1983 and continued in his employment thereafter. As
defined in the public Service Act, the grievor was throughout his
employment a public servant but not a civil servant. He was an
"employeel' within the meaning of the Crown Emnlovees Collective
Baraainina Act and as such, entitled by section 18(2)(c) of that
Act to grieve a "dismissal*q from employment. The jurisprudence
of the Board now indicates that the Board has jurisdiction to
entertain grievances for the purpose of determining whether an
employer's action is in truth a dismissal of a contract employee,
masquerading as a termination, (Boucher and Trumblev and Ministry
of Correctional Services, 218/78; fliller and McPhail and Ministry
of Correctional Services, 530/82, 531/82) and then to fashion a
remedy beyond Article 3.11 of the Collective Agreement (See
Ontario Divisional COUrt reasons, appeal to Court of Appeal
dismissed February 18, 1986, as reported in the Board's
a 5;’
i 1
4
Supplementary Decision, Miller and McPhail, dated January 21,
1987).
The letter of Nagel on December 19 does say the qrievor is
"terminated". However, the letter also says "your contract
expires . . . and will not be renewed." As Nagel explained, the
decision was to pay him for the remaining eight days of his
contract but not require his presence so that the possibility of
disruption in the workplace could be avoided. If a 'termination'
( pursuant to Article 3.11 was contemplated, one would expect a
reference thereto in the letter and seven days pay instead of
eight. We cannot say this was a termination within Article 3.11
and obviously then we cannot say it was a dismissal masquerading
as such.
Counsel for the grievor asks in effect that we depart from
the Board's earlier jurisprudence (e.g. see Humeniuk, and Ministry
of Correctional Services, 614/84) and hold that a non-renewal of
a contract employee may be a dismissal in disguise and so
arbitrable. In the alternative, counsel argues that the grievor :\.
was not a contract employee: counsel state,, "there was no
evidence of a contract signed by both parties that was to expire .' on December 27". Counsel argues the grievor was simply an
employee of the Ministry on December 19, any individual
contractual arrangement was in conflict with the Crow _n
Collective Haroainino Act and the Collective Agreement and
therefore a nullity, and the act of the Ministry on December 19
must therefore have been a dismissal and hence arbitrable. The
5
short answer to this argument resides in the recognition that
"contract employee" is but a colloquialism. The grievor was
appointed for a specified period pursuant to the authority of
section 8 of the public Service Act and that Act provides:
s.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.
On December 27, 1985 the grievor, by the operation of
statute and the effluxion of time, ceased to be an employee. We
conclude, as the Board did in Cascaonette and Ministrv of Health,
1246/85, that a non-renewal of the contract of an employee in the
unclassified service is not a dismissal, and is not arbitrable as
such.
If greater job security for the unclassified service is to
be obtained, it must be through collective bargaining. As
Chairman Springate wrote in pumeniuk, supra at p. 11:
There is nothing in the collective agreement or in the applicable statutes which guarantees contract employees the right to be' reappointed, or which in any way restricts management when it makes a decision as to which contract employees are not be renewed.,
Counsel for the grievor argued in the alternative that
should we find that there was net a dismissal but rather a
decision not to renew! then we should test the reasonableness of
management's exercise of its right to choose which employees to
appoint. In light of ReMetroDolitan Toronto Board of
Commissioners of Police, (1983) 124 D.L.R. (3d) 684 (Ont. C.A.),
we decline that invitation.
6
The grievor complains about,the fairness of the competition.
Being in the unclassified service, the arbitrability~ of the same
seems foreclosed: phluwalia and Vashist and ‘the Mir,istrv _o_f
Transoort and Communications, 725/83. We would not like it
thought however, that by saying nothing, we found anything unfair
in the competition. A considerable amount of time was taken at
the hearing examining the process. NO interviews were held in
the competition but we are satisfied that competence in the type
of work involved was better analyzed as it was done by an
examination of production output and work habits. It ,is true
that the grievor had done better in an earlier competition for
Group Leaders but in that competition, other attributes were
being examined. The Job'Posting did not specifically say that
Technical and Personal skills would be equally weighted but it's
difficult to see how the grievor was in any way prejudiced by
that fact. The grievor scored well in Experience and Knowledge
but poorly in Production, Reliability, Work Habits and Co-
! Operativeness (Exhibit 11). He claimed prejudice in that had he
known the latter skills would be rated' more highly than he
believed he would have sought improvement there and yet, in
cross-examination, he testified, "1 wouldn't .have changed work
habits~ or productivity - I had no problems there."
Counsel for the grievor argued that in Rumeniuk, supra., at
p. 12, this Board had hinted.at the possibility of reviewing a
non-renewal if "tainted by bad faith on the part of the
employer." We find that we are not &alled on to deal with that
possibility of review as we find that there was no evidence of
ar.y bad faith on the employer's part.
Accordingly we dismiss the grievance.
EATED at Kings:on, :his 29th day of April, 1987
3. J. Delisle, Vice-Chairman
-,
J. Best, Member