GSB# 0884/01; 0885/01; 0886/01; 0887/01

UNION# 01B289; 01B290; 01B291; 01B292

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Balachandran)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Consumer and Business Services)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

George Richards Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Meredith Brown Counsel Management Board Secretariat

HEARING

March 12, 2003

DECISION

Background

Four grievances have been referred to me for determination.

The grievor commenced her employment with the Ministry on January 24, 2000. She was appointed to the public service under the terms of an employment contract which was effective from January 24, 2000 and was to expire on March 31, 2000. Through a series of renewals, however, her status as an unclassified employee continued until August 24, 2001 when her most recent contract expired. By letter dated April 26, 2001 the employer had advised the grievor that her contract (then set to expire on April 30, 2001) was being renewed until August 24, 2001. In that same letter, she was also explicitly advised at that her contract would not be renewed beyond August 24, 2001.

As had been indicated, the grievor's contract expired on August 24, 2001 and her employment was consequently terminated. On the day prior to the contract’s scheduled expiry, four grievances were filed on behalf of the grievor. Each of these seeks, in varying ways, to directly, or at least effectively, reverse that termination.

In the first grievance (which I will refer to as the termination grievance) the grievor's termination is directly challenged. The Union also suggested that the employer had not acted in good faith in effecting that termination.

In the second grievance (which I will refer to as the posting grievance) it is alleged that the grievor was denied her rights to compete for classified positions under the terms of Article 6 of the collective agreement.

The third grievance (which I will refer to as the conversion grievance) refers to Article 31.15 of the collective agreement in support of the claim that, prior to the termination of her contract, the grievor's status ought to have been converted to that of a classified employee under the terms of the collective agreement.

In the fourth and final grievance (which I will refer to as the discrimination grievance) it is alleged (as amplified by the union representatives at the hearing) that the employer's treatment of the grievor and its decision to terminate her employment were tainted by discriminatory motives prohibited under the terms of Article 3 of the collective agreement.

The employer indicated that it wished to advance preliminary objections seeking to dismiss each of these grievances as inarbitrable. In essence, the employer claimed that the four grievances were but four separate attempts to challenge the propriety of the grievor's termination. As an unclassified employee, however, the employer asserts that the grievor's termination simply flows from the conclusion of her contract and (relying on legal authority which will be canvassed below) this Board simply lacks the jurisdiction to inquire into the matter.

Despite that general opening position, it also became clear that the employer was equally of the view that, even if this Board has the jurisdiction to inquire into some or all aspects of some or all of the grievances, the facts which the union asserts, even if accepted as true and provable, do not make out any case for concluding that there has been any violation of the collective agreement.

In that context the hearing proceeded as follows. Both parties were provided with a full opportunity to describe the nature of the evidence they intended to call and rely upon. We heard legal submissions from the parties both with respect to the employer's preliminary objections and the claim that the union’s grievances, even accepting the facts asserted as true and provable, failed to establish any violation of the collective agreement. Thus, to the extent the employer's preliminary objections have not fully disposed of these matters (and, as will be clear shortly, they have not) I have accepted the union’s allegations as true and provable for the purposes of determining whether the grievances disclose any violation of the collective agreement.

The Preliminary Objection(s)

Subject to certain claims about the grievor's employment prior to January 2000 (which will be dealt with in the specific context of the conversion grievance later in this decision), it was common ground that the grievor's employment as an unclassified employee ran from January 24, 2000 to August 24, 2001.

The employer relies on section 9 of the Public Service Act. It provides:

9. Termination of Employment – 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,

We were also referred to the decisions of this Board in Merson, 16/93, 299/93, and 1162/93 (Gray); Gallagher, 152/94 (Gray); and Gagnon, 1067/96 (Roberts) as support for the proposition that the non-renewal of an unclassified employee cannot be the subject of the grievance and, more particularly, even where the non-renewal is said to have been effected in bad faith, that this Board is without jurisdiction to review that decision.

I have carefully reviewed the authorities relied upon by the employer as well as a number of other decisions of this Board (which are cited and discussed in the authorities presented by the employer). Those additional decisions include: Milks, 1000/92 (Low); Pitirri, 1685/92 et al (Kaplan) and Ghiandoni, 518/94, 519/94 (Mikus).

A review of those authorities certainly confirms the soundness of the general proposition that the non-renewal of the contract of an unclassified employee is beyond review by this Board. That general proposition is not, however, without exceptions. And there may be some lack of utter clarity regarding the existence and scope of those exceptions.

A very brief review of the cases will serve to elaborate. Each of these cases involved the non-renewal of the contract of an unclassified employee. I consider them in chronological order.

It is undoubtedly the earliest of these cases, Milks, which provides the strongest support for the employer's position. In that case the grievance challenging the non-renewal of an unclassified employee was dismissed pursuant to a preliminary objection much like the one currently before me. The Board clearly articulated the view that where an unclassified employee's fixed term contract expires, the employment relationship is severed by operation of section 9 of the Public Service Act. The Board went on, however, to reject the proposition that the presence of bad faith (as was alleged in that case) would give this Board jurisdiction to renew the contract or to impose a new one upon the parties.

In the Pitirri case, however, a similar preliminary objection was dismissed where the grievance alleged improper discrimination in violation of the collective agreement. That impugned conduct was alleged to have transpired prior to the expiry of the unclassified contract and was directly related to the grievor’s ultimate claim of unjust dismissal.

Similarly, in the Merson case, the preliminary objection was dismissed where the facts relied upon arose prior to the expiry of the contract and where it was alleged that the non-renewal was motivated by grounds specifically prohibited under the collective agreement.

The Board’s decision in Ghiandoni contains perhaps the clearest authority supporting this Board’s ability to review a non-renewal against the standard of bad faith. The Board, reviewing an earlier decision (Jafri, 933/91 (Dissanayake)) offered the following at page 14:

Dealing first with the issue of the jurisdiction of the Board, it is clear that the Jafri decision stands for the proposition that if an employer’s decision not to renew the contract of an unclassified employee was made for reasons which resulted in the undermining or abridgment of any rights of an employee under the collective agreement, the employer’s actions are reviewable by a Board of Arbitration. If the employer acted in such a manner, the Jafri Board equated it to “bad faith”. That panel stated that if the employer was retaliating against the grievor for seeking assistance from the Union by not renewing his contract, the exercise of the employer’s authority would have the effect of undermining the grievor’s rights to grieve. If the Union can prove that the employer’s decision in the instant case was made in bad faith, it would be a direct link to the undermining of the grievor’s collective agreement rights. On these grounds, this board has the jurisdiction to review the reasons for the Employer’s decision not to renew the grievor’s contract.

In ultimately upholding the merits of grievance the Board in that case concluded that the grievor’s contract was not renewed, in part, because of the exercise of his rights under the collective agreement.

The Gallagher decision is perhaps less useful for our purposes. In that case the Board determined that the impugned conduct – alleged to be contrary to the discrimination provisions of the collective agreement – occurred after the expiry of the unclassified contract. The grievance was therefore dismissed on the basis that the employer’s treatment of an employee (presumably even if it is otherwise prohibited by the collective agreement) which occurs after the expiry of the contract (and hence the employment relationship) is simply not governed by the collective agreement.

I note that the specific question of whether an alleged collective agreement violation occurs prior or subsequent to the expiry of the employment contract is one which may itself be the subject of controversy. Does the complaint typically arise only after the contract has expired and not been renewed? Or, is there logically a point at which, prior to its expiry, an active decision is made not to renew? Fortunately, this is one issue we need not address in this case. The decision to not renew the grievor’s contract was clearly taken and communicated to the grievor well before its expiry and at a time when the grievor enjoyed the protection of the collective agreement.

The most recent of the cases considered is Gagnon. The Board in this case appears to have deftly combined an apparent antipathy towards the general proposition that all claims of bad faith non-renewal of fixed term contracts will be reviewed by this Board with the dismissal of the employer’s preliminary objection in that case. The Board described its approach as follows:

I have decided to take jurisdiction of the merits of this grievance, but not because I am persuaded that claims of “bad faith” non-renewals of the contracts of members of the unclassified service are reviewable upon their merits. In the present case, Mr. McFadden alleged that management was in bad faith when it delayed until it was too late for the grievor to improve, notice that the number of times she declined available work had become a matter of serious concern. The Grievance Settlement Board certainly has jurisdiction to entertain the merits of a claim of bad faith exercise of management rights.

Later in the decision, the Board specifically rejected the assertion that its jurisdiction extends to the point of reviewing all claims of bad faith non-renewal of fixed term contracts but also offered the following:

When, however, the union claims that a decision not to renew was part-and-parcel of a bad faith abridgment of a collective agreement right possessed by a member of the unclassified service while employed, the Board, of course, will take jurisdiction.

Having reviewed this jurisprudence and the provisions of the Public Service Act and having considered the submissions of the parties, I come to the following conclusions.

As a general proposition, the non-renewal of the fixed term contract of an unclassified employee is not the proper subject of a grievance. And while it may be equally sound law that there is no automatic review of such a decision against a standard of bad faith, there is ample authority to support the view that where the non-renewal of a contract is “part and parcel” of a bad faith abridgment of a collective agreement right possessed by a grievor, or where the decision not to renew the contract was made for reasons which resulted in the undermining or abridgment of any other collective agreement right, the Board will inquire into the complaint. Further, I note and adopt the specific acknowledgment in Gagnon that the GSB has the jurisdiction to entertain the merits of a claim of bad faith exercise of management’s rights. Put perhaps somewhat more simply, where the non-renewal of a contract engages an alleged violation of some other provision of the collective agreement (which may include an alleged bad faith exercise of management’s rights distinct from the non-renewal itself), this Board will inquire into all of the circumstances to determine whether there has been any violation of the collective agreement.

In applying those conclusions to the instant case, I am persuaded that the employer’s preliminary objection(s) must be dismissed.

First of all, while there may be practical merit and substance to the employer’s claim that each of the four grievances before me duplicates the essential union effort aimed at preserving or reinstating the grievor’s employment relationship, each of the grievances is differently framed and raises issues which warrant separate treatment. In particular, the claims asserted in the conversion and posting grievances (whatever their merits) raise specific provisions of the collective agreement apart from the issue of non-renewal. Those issues cannot be dismissed by the broad sweep of the preliminary objection urged by the employer.

The termination and discrimination grievances are perhaps more readily subject to the employer’s motion. However, each of these grievances, as filed and presented by the union, fit the mould of cases which will engage this Board’s review. This is clearly the case where it is alleged (in the discrimination grievance) that the decision to not renew the grievor’s contract was part and parcel of the employer’s alleged contravention of Article 3. I confess that I am less confident in arriving at a similar conclusion in respect of the termination grievance, largely because the specific nature of the alleged violation of the collective agreement (presumably in the nature of bad faith – perhaps even an alleged bad faith exercise of management’s rights) remains less than clear to me (this will be explored a little more fully below).

In the circumstances, the employer’s preliminary objection in relation to each of the grievances is hereby dismissed.

I turn now to consider the merits of each of the grievances and, in particular, to determine whether these grievances, assuming and accepting the facts alleged by the union, can be seen to disclose any violation of the collective agreement.

The Termination Grievance

I have already indicated my confirmation of the general principle that the non-renewal of the contract of an unclassified employee is not the proper subject of a grievance. Thus, to the extent that this grievance has survived the employer’s preliminary objection, that is because it alleges bad faith was part and parcel of the employer’s decision to not renew the grievor’s contract. However, I find it extremely significant that the union did not explicitly allege a violation of any specific provision of the collective agreement in support of its position. In that regard (and as perhaps suggested earlier in this decision), I may have been overly generous to the union in declining to allow the employer’s preliminary objection in relation to this grievance.

In considering the nature of the union’s claim under this grievance, there is, however, simply no doubt in my mind that the grievance must be dismissed.

The union acknowledges it has no specific evidence establishing bad faith, but asks me to infer bad faith from the facts it asserts. And, essentially, the union’s case in that regard amounts to no more than the following. Evidence (which might have to be gleaned to some extent from employer records the union would seek to have produced) will demonstrate that the work the grievor performed or work similar to it continued to be performed after her departure to an extent that would establish an ongoing need for the work. In that context, I am asked to conclude that the decision to not renew the grievor’s contract was made in bad faith.

I need not provide a full catalogue of the shortcomings of the union’s position. It is sufficient to note that, even assuming the union could establish an ongoing need to perform the grievor’s work (a proposition not embraced by the employer), it is not clear to me that such a conclusion, in turn, leads to a finding of employer bad faith. The jurisprudence surrounding the non-renewal of unclassified contracts is rooted in the proposition that there is no right or entitlement to renewal. It strains logic to accept on the one hand, that contracts need not be renewed and to assert, on the other, that when they are not, bad faith ought therefore to be inferred. Moreover, there is a multiplicity of avenues available to the employer, both with respect to the manner in which it organizes its work and the timing of its decisions. In the absence of specific evidence suggesting bad faith, I do not see how the assertion that work similar to the grievor’s was performed after the expiry of her contract can, in and of itself, support any conclusion of bad faith.

The termination grievance must therefore be dismissed.

The Job Posting Grievance

The job posting grievance refers to a number of postings and “non-postings”. To the extent any actual job competitions are referred to, they occurred well after the termination of the grievor’s employment and entitlement to claim the benefit of the collective agreement. The union points, however, to a number of instances where it asserts that job competitions ought to have but did not occur. Had the competitions taken place during the grievor’s tenure, she would have been entitled to compete. And while that entitlement is, of course, no guarantee of success, the grievance claims, among other things, that the grievor ought to be awarded a full-time classified position as a remedy for the alleged violation.

Essentially, the union points to the departure of three classified employees (due to permanent reassignment or retirement) to claim that up to 3 vacancies ought to have been posted during the course of the year 2000.

There is no question that when positions are posted, bargaining unit employees (including unclassified employees) have the right to participate in the competition. But while Article 6 of the collective agreement clearly sets out what is to happen (by way of posting and competition) once a vacancy occurs or a new classified position is created, I was not pointed to anything in the collective agreement which determines precisely when there is such a vacancy. As already noted, the employer has a broad range of options available to it – both with respect to timing and the manner in which it opts to get its work done. There are no provisions in the collective agreement – at least none were pointed to – which either freeze employee complement or specifically regulate ratios of employee categories or oblige the employer to “declare a vacancy” in specified circumstances (compare the conversion provisions of the agreement, discussed below). No authorities were advanced to support any such proposition. In the absence of any such specific collective agreement provisions or any serious argument that the relevant movements of classified employees automatically and immediately give rise to an obligation to declare and therefore post a vacancy, I am not persuaded that there is any basis for the posting grievance to succeed.

The posting grievance must therefore be dismissed.

The Conversion Grievance

In the conversion grievance, the union relies on the provisions of Article 31.15. It is unnecessary for me to set out or consider that provision in great detail. It is sufficient for our present purposes to note that, in certain prescribed circumstances, the article contemplates the creation of a position within the Classified Service and the conversion of the status of the incumbent in the position from unclassified to classified. However, among the various conditions required for such a conversion is the one found in the opening words of the article:

Where the same work has been performed by an employee in the Unclassified Service for a period of at least two (2) consecutive years….

In simple terms, an unclassified employee must perform the same work for at least 2 years in order to be eligible to benefit from any conversion. It is clear from the facts outlined above that the grievor’s tenure within the Unclassified Service did not meet this minimum service requirement and that she therefore has no basis upon which to claim any entitlement under the article.

Neither am I persuaded that the grievor’s prior employment with a different employer is of any relevance even where that employment resulted in the grievor performing the same work (a fact which, I note, is disputed) for the requisite period.

The collective agreement refers to an employee who has been in the unclassified service for at least two years. Further and despite the valiant argument advanced by the union representative that I consider more traditional common law approaches to identifying the employment relationship, I cannot ignore the provisions of sections 8.1(2) and 8.1(10) of the Public Service Act:

(2) Status as a public servant – An individual is not considered to be a public servant unless he or she has been expressly appointed as such by the Lieutenant Governor in Council, the Commission, a minister or a designee of a minister.

(10) No implied appointment – In the absence of an express appointment of an individual as a civil servant, public servant or Crown employee, the individual’s appointment shall not be inferred solely from the circumstances of his or her employment.

In short, there is simply no basis to conclude that the grievor had the requisite service as an unclassified employee to qualify for conversion under the collective agreement. There is no basis to conclude that the duration of her unclassified service is anything different from or additional to the period from January 2000 to August 2001.

The conversion grievance must therefore be dismissed.

The Discrimination Grievance

The discrimination grievance makes reference to Article 3 of the collective agreement. Article 3.1 provides:

3.1 There shall be no discrimination practiced by reason of the race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 10 (1) of the Ontario Human Rights Code (OHRC).

The union (as it did in relation to the allegations of bad faith) conceded that it had no specific evidence of discrimination upon which it relied. Rather, it suggested that discrimination was to be inferred from the facts of the case.

In that regard, the union pointed to the fact that the grievor was denied an interview in a job competition which took place in March 2002 and to the denial of the grievor’s request to participate in certain career development opportunities/assignments during her tenure as an unclassified employee. Of course, the competition pointed to took place some 7 months after the termination of her employment at a time when the grievor had long ceased to be covered by the terms of the collective agreement. And as far as the career development opportunities were concerned, there is simply nothing in the facts asserted by the union which is inconsistent with the conclusion that such a denial was a function of the grievor’s status (as an unclassified employee hired, according to the employer, to perform a particular set of tasks), not an example of improper discrimination.

But even more damning to the union’s position is the fact that it was unable to clearly identify any prohibited ground of discrimination said to be at play. The union suggested somewhat tentatively that perhaps it was the grievor’s status as a member of a visible minority which was operative. But the union conceded almost immediately that the grievor was less than unique among her fellow employees in that regard and no specific comparator was posited to found any basis for a claim of improper discrimination. Indeed, the employer advised (and the union did not dispute) that another employee was hired into an unclassified position similar to the grievor’s at the same time as the grievor and that both of their contracts were subsequently terminated at the same time. There was nothing in the union’s presentation which suggested that the grievor was treated any differently from the other employee with respect to either her hiring or tenure.

In short, I am simply not persuaded that there is anything in the facts asserted by the union which can support any finding of improper discrimination.

The discrimination grievance must therefore be dismissed.

Summary

In summary and for the reasons set out above, both the employer’s preliminary objections and the union’s grievances are all hereby dismissed.

Dated at Toronto this 8th day of April 2003.