GSB #1119/00
OPSEU#00A500
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Goh)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Employer
BEFORE Owen V. Gray Vice Chair
Decision
1This is one of a number of grievances about Continuous Service Dates with which the parties have agreed the Board can deal on the basis of written submissions. The union’s initial submissions in this matter were as follows:
The Union does not dispute the facts surrounding the grievor's employment history as demonstrated from the records supplied by the employer.
The issue in dispute is whether or not the grievor's service, working on the Best Ever Ontario Program constituted employment with the Ministry of Tourism and Recreation, and as such constitutes service in the Ontario Public Service. The period of employment was from April 01, 1986 through to March 31, 1989.
The Best Ever Ontario Program was administered on behalf of the Ministry of Tourism and Recreation by the Ontario Sports Administration Centre Incorporated. The grievor's contract with the Centre provides that she reports directly to Mr. George Fraser, Games Consultant. Games and Technical Section, Sports and Fitness Branch, Ministry of Tourism and Recreation.
During this period the grievor was compensated at the OPS, OAG 6 salary level and was authorised to sign correspondence which contained the ministry letterhead. Documentation supporting the above is available should the ministry dispute its accuracy.
The grievor asserts that because the ministry funded and directly supervised the grievor during this period that her employment should be recognised as service within the definition of Article 18 of the Collective Agreement.
The Union is sympathetic to her claim that the provision‑of T4's by an intermediate, the Ontario Sports Centre should not deprive her of the service.
The Union is unable to distinguish this case from the Board decision in Hood, GSB # 113/95.
2When the grievor was appointed to the classified service on April 1, 1989, the relevant provisions of the collective agreement did not (and provisions of subsequent agreements did not) allow for credit for all employment by the Crown prior to appointment to the classified service. They only provided for credit for employment in the public service. The words “public service” had the same meaning as in the Public Service Act (“the PSA”): see Konya, 494/83 (August 28, 1985, Roberts). To have served in the public service within the meaning of Article 25.1(b) as it then was, an employee had to have been appointed under the PSA by the Lieutenant Governor in Council, the Civil Service Commission or a minister.
3The decision in Konya, supra, was described in my later decision in Hood, 113/95:
In Konya, supra, the issue was whether the grievor could have credit under the old language of article 25.1(b) for a period of time during which he provided electrical design services for the Ministry pursuant to a contract between the Ministry and an employment agency that, in turn, contracted for the grievor’s services through his personal corporation. The employment agency billed the Minstry for the hours worked by the grievor, and thereafter paid the grievor’s corporation for those hours in accordance with its arrangement with the grievor. When the grievor was later appointed to the classified service, none of his duties changed: “He remained in the same office performing the same electrical design duties as he had when he was supplying his services under the above-described contractual arrangement.”
The issue in Konya was framed as one of interpretation: whether the circumstances that existed prior to the grievor’s appointment to the classified service amounted to employment in the public service within the meaning of article 25.1(b) as it then read. … On the merits, the Board noted that one could not be employed in the public service without being appointed to the public service. It found that the reference to appointment in the PSA “was not intended to encompass persons who served with the Ministry under third party contracts with outside employment agencies.” Accordingly, the grievor’s service pursuant to the arrangement with the employment agency was not “service in the public service” within the meaning of article 25.1(b) as it then was.
4Against that background, it appeared that if there was indeed a dispute between the parties about whether the grievor was employed in the public service prior to April 1, 1989, as the union’s particulars said there was, then it must have been either that the union was challenging the conclusions in Konya and Hood or that it was asserting as a fact that this grievor was appointed to the public service in the manner contemplated by the Public Service Act (“the PSA”) on or before April 1, 1986. The union was directed to indicate clearly whether or not it asserted that the grievor was appointed to the public service before April 1, 1989 in the manner contemplated by the PSA and whether it challenged the conclusions in Konya and Hood that there can be no credit for pre-appointment employment unless it was employment to which the employee was appointed in the manner contemplated by the PSA. The union responded as follows:
To clarify the position of the Grievor is that the period of employment from April 01, 1986 through to March 31, 1989, while working on The Best Ever Ontario Program should be credited towards her seniority in the OPS (as contemplated by the PSA pre‑1989). All documentation currently in my possession has been provided to you.
As stated in our earlier submission, the Union is unable to distinguish this case from the Board's decision in Hood, 1131/95, and we are neither challenging the conclusions in that decision, or in Konya, 4941/83.
The union was then directed to provide copies of the statutory provisions on which it relied in connection with its claim that the PSA contemplated the crediting of the period of employment in question towards the grievor’s seniority in the OPS, and an explanation of how it said those provisions bear on the issues in this matter. The union responded as follows:
In an attempt to further clarify the Union's submissions:
The grievor does not have any documents in her possession, supporting her appointment to the public service on April 01, 1986 in the manner contemplated by the Public Service Act.
The grievor has no memory of being formally appointed to the public service on April 01, 1986.
On April 01, 1989 the grievor does recall having to sign a number of formal documents appointing her to the public service.
The Public Service Act, R.S.O. 1990 c. P47, s. 8 provided much greater clarity in how an employee was formally appointed to the public service. This included the now very clear language in s. 8 and 8.1 (1), (2), (4), (9) and (10) that was not present in R.S.O. 1980, s. 8. I have included the R.S.O. 1980 c. 418, s. (8) and (10) pages on this subject. Clearly pre 1990 language was less clear and cogent.
It remains the Union's position that this case is indistinguishable from Hood, 113/95, and the Union is not disputing the conclusions reached by that Board.
5Although invited to do so, the Union has offered no explanation of its assertion that the PSA contemplated the crediting of the grievor’s employment with The Best Ever Ontario Program toward her seniority in the OPS. Nothing in the PSA extracts that accompanied the union’s last submission supports that assertion. The union does not affirmatively allege that the grievor was appointed to the public service prior to April 1, 1989. It does not challenge the Board’s previous findings that the collective agreement did not and does not provide for credit for periods of employment that were not the result of appointment to the public service. In short, the union offers no tenable basis for its challenge to the employer’s calculation of the grievor’s Continuous Service Date.
6Accordingly, this grievance is dismissed.
Dated at Toronto this 20th day of November, 2000.