GSB#0433/01
UNION#01B191
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Group Grievance, Stephens et al.)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Employer
BEFORE Owen V. Gray Vice-Chair
FOR THE UNION Richrd Blair
Counsel
Ryder Wright Blair and Doyle
FOR THE EMPLOYER Ferina Murji
Counsel
Management Board Secretariat
HEARING November 22, 2002.
Decision
1Each of the grievors has the same complaint: that her or his continuous service date does not take into account employment at the Southwest Regional Centre in the period 1983-86. They say that for the first part of that period the Ministry treated them as “self-employed” contractors. For the latter part of the period they were paid by Chatham-Kent Family Services from funds provided by the Ministry. At the end of the period they were appointed to the unclassified service. They allege that in legal substance they were in an employment relationship with the Ministry throughout the period, and should have received credit for it when they were later appointed to the classified service.
2The employer says that the grievances are untimely, that the grievors were not in substance employees of the Crown during the period in question and that, in any event, they would not have been entitled to credit for that period even if they were in substance employees of the Crown. I was asked to address the latter point as a preliminary issue.
3Over the years, collective agreements between these parties have provided that in calculating the length of continuous service of someone appointed to the classified service, credit will be given in certain circumstances for certain kinds of Crown employment prior to the appointment to the classified service. Those collective agreements have not given and do not give credit for every conceivable form of employment by the Crown, however. Except when the employer and union have agreed otherwise (and no such side agreement is applicable here) the only kind of Crown employment that may be credited in this way (depending on the circumstances) is employment in the “unclassified service”, or the “public service” as the unclassified service was described for this purpose in collective agreements prior to 1992.
4Vice-Chair Robert’s 1985 decision in Konya, 494/83 made it clear that a Crown employee could only be regarded as employed in the “public service” if she or he had been appointed to that service in the manner contemplated by the Public Service Act — that is, the employee must have been appointed to that service under that act by the Lieutenant Governor in Council, the Civil Service Commission or a minister. The same is true of employment in the “unclassified service.”
5In Hood, 113/95, the grievor sought credit for a period during which he had been employed by the Metropolitan Toronto and Region Conservation Authority in a program funded by the Ministry of Natural Resources. The union took the position there that, on the legal tests normally applied to determine who the employer is, the grievor was in substance employed by the Ministry in that period. The union recognized, however, that if that were true it would not be enough. To be included in the grievor’s period of continuous service the period of employment in question had to be employment in the unclassified service. The grievor had not been formally appointed to the unclassified service for the period in question. So the union argued that because the grievor was in substance an employee of the Ministry and was performing the sort of work that would be performed by employees in the classified or unclassified service, he should have been appointed to the unclassified service for the period in question and should therefore be treated for seniority purposes as though he had been so appointed.
6Although I found in Hood that the period of employment in question was not employment by the Crown on the usual tests, I also concluded that
Moreover, and in any event, I am not persuaded that the Crown would have had an obligation to appoint the grievor to the unclassified service even if the degree to which it funded his salary and directed his work had made him its employee from the perspective of tests applied for other purposes in labour and employment law matters. The union’s representative did not identify any provision of the collective agreement or of the PSA or of any other applicable statute that supports the existence of such an obligation.
7Union counsel noted that Hood dealt with an allegation that nominal employment by a third party was in substance employment by the Ministry, but not with a situation like this one in which nominal self-employment was alleged to be in substance employment by the Ministry. He acknowledged that he could identify nothing pertinent in the distinction. Nor can I. The allegation is the same: that whatever the form of the arrangement, the grievor was in substance an employee of the Crown. The difficulty is the same: whether they were Crown employees or not, the grievors here were not appointees to the unclassified service during the period in question.
8No doubt the grievors feel that it is unfair that they could be engaged between 1983 and 1986 to do the very work they did thereafter as unclassified employees with out getting credit for that initial period. In the hearing, union counsel stated that the union does too. If there is unfairness, it is in provisions of the collective agreements, which the Grievance Settlement Board has no jurisdiction to change.
9As I observed in Hood, in formulating their test for credit for employment prior to appointment to the classified service in the calculation of seniority, the union and the employer have agreed that employees will get credit only for certain kinds of employment by the Crown. Even if the grievors here could be said to have been in an employment relationship with the Crown in the period in question, it was not the kind of employment for which credit was or is to be given under the parties’ collective agreements.
10Accordingly, this grievance was dismissed orally at hearing.
Dated at Toronto this 25th day of November, 2002.