PSGB#2015-2662

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

David MacKinnon

Complainant

• and -

The Crown in Right of Ontario

(Ministry of Community Safety and Correctional Services )

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANT

David MacKinnon

FOR THE EMPLOYER

Stewart McMahon

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

September 9, 2016

Decision

1This application alleges that the complainant, David MacKinnon, was improperly terminated from his employment because of a disability. The employer raised three preliminary objections in its Form 2 written response. Those objections went to the issue of the Board’s jurisdiction to hear the application, and consequently were heard on the scheduled hearing date of September 9, 2016 prior to the Board entertaining evidence relating to the merits of the application.

2The complainant had been a long-term employee of the Ministry of Community Safety and Correctional Services (“CSCS” or the “Ministry”). He retired from his Operational Manager (“OM”) role at Toronto East Detention Centre in December 2012.

3There was no dispute that Mr. MacKinnon returned to work as an OM at the same institution in the summer of 2013. There was also no dispute that, in this capacity, the complainant was a public servant. Mr. MacKinnon continued to work until July 2014 when he was involved in a motorcycle accident. He did not return to work, apparently due to his disability, and on September 2, 2015 he was given sixteen weeks notice by the employer that his employment would end effective December 31, 2015. It is this employer action that is the subject of the application.

4At the hearing, the employer focussed on the first objection raised in its response. The second objection, it submitted, was subsumed by the first. The employer withdrew its third objection, a challenge to the timeliness of the application.

5The employer asserted that the Board has no jurisdiction over the application as the complainant, at the time of termination from employment, was working pursuant to a fixed term contract on an irregular basis. The employer relied on subsection 5. (2) 5. of Ontario Regulation 378/07, made under the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A. That subsection of the Regulation provides:

Eligibility to File a Complaint

Eligibility Generally

5. (2) If any of the following circumstances existed at the material time, a public servant or other person is not eligible to file a complaint:

6. He or she was employed for a fixed term for fewer than 14 hours per week, employed for a fixed term for fewer than nine full days in four consecutive weeks or employed for a fixed term on an irregular or on-call basis.

(italics added)

6The employer filed copies of four “WIN Employee Action Requests”. Each of these forms documents employee data, the type of employment transaction triggering the action, the employee’s status, as well as comments, authorizations, and employee statements/signatures. The first form, signed and dated August 12, 2013 by the institution’s Deputy Superintendent, Operations, identifies the complainant as the employee and records that the complainant is being hired on a fixed term contract as an “on call Oper. Manager”. The comments section of the form notes that the fixed term contract is “up to 40 hours per week – end date January 21, 2014”. It contains a certification that the complainant is not a regular employee and that, subject to earlier termination, the contract was effective from July 22, 2013 to January 21, 2014. The complainant signed that document much later, on May 9, 2014.

7The second WIN Employee Action Request form was also signed by the complainant on May 9, 2014. That document records an extension of the fixed term contract with a new end date of January 21, 2015. It was signed by the Deputy Superintendent, Operations on March 26, 2014.

8The third WIN Employee Action Request was signed by the Deputy Superintendent, Operations on January 20, 2015. As noted earlier, the complainant had been injured in July 2014 and had not returned to work. The employer took the position that it again extended the complainant’s contract with a new expiry date of January 20, 2016. Although not signed by the complainant, there was no suggestion that he was unaware of the extension. He was not in attendance at the workplace over the period.

9The last WIN Employee Action Request was signed by the Deputy Superintendent, Operations on December 22, 2015. It records termination from employment effective December 31, 2015, approximately three weeks earlier than the stated end date of the contract. The reason for termination is noted as “end of contract”.

10The employer also filed copies of the complainant’s monthly schedules for the seven months preceding his accident, that is, for the period January to July 2014 inclusive. Those schedules show that the complainant worked irregularly, both in terms of the number of shifts worked over any period and the various shifts offered.

11The complainant acknowledged that it was his signature on the WIN records. Without being able to confirm exact dates, he also agreed that the schedules reflected his work pattern.

12The employer relied on the language of Regulation 378/07 as set out above in support of its position that the Board simply did not have any authority to consider the application. It argued that, as the complainant was not eligible to file the application, no jurisdiction could be assumed by the Board over the application.

13On behalf of the complainant it was argued that the employer was not concerned about allowing individuals to work without a contract as evidenced by the failure to have the WIN documents signed until after work had commenced. The employer, it was argued, was trying to hold the complainant to a contract when there was none. On behalf of the complainant it was further argued that it was difficult to believe that a fixed term contract employee was not able to make a complaint, asserting that, given the resources spent by the Ministry in responding to complaints from fixed term employees, this was an attempt to avoid dealing with the merits of the application.

14The employer replied that if there were no contract at the material time there could be no complaint, as no employment relationship would have been terminated. The last signed contract ended in January 2015, a year before the action complained of. The employer conceded that the complainant had continued to be employed by the Ministry, but on a fixed term, irregular basis. Every time the complainant was offered a shift, worked the shift, and was paid for it, there was a contract, argued the employer. The employer agreed that it responded to complaints from fixed term employees. It argued that it is only non-bargaining unit persons employed on a fixed term contract on an irregular basis who are not eligible to file a complaint. Whether that limitation is considered right or fair, argued the employer, the Regulation is clear and the Board cannot take jurisdiction over an application from an individual who is not eligible to file it.

15The complainant reiterated that his case asserted that he was terminated from employment based on his disability and that he was never offered modified duties, and that, as a public servant, he still had rights.

16In determining whether this Board has any authority to consider the application, one must interpret and apply the language of Regulation 378/07. This Board is a creature of statute and has no inherent jurisdiction. It cannot go beyond the authority provided to it. The Board has been continued under Part II of the Public Service of Ontario Act, 2006. Section 31 of that statute provides for the making of regulations as follows:

Regulations, Part II

31. (1) The Lieutenant Governor in Council may make regulations,

(c) prescribing circumstances in addition to those set out in this Act in which a public servant may file a grievance with the Public Service Grievance Board;

(d) prescribing matters that cannot be the subject of a grievance before the Public Service Grievance Board;

(e) prescribing classes of public servants who are not eligible to file a grievance with the Public Service Grievance Board;

17Regulation 378/07 has been passed pursuant to this statutory provision and it both governs and limits the Board’s jurisdiction to entertain applications. Further, Regulation 378/07 is clear; a straightforward reading of the Regulation confirms that if, at the material time, the complainant was employed for a fixed term on an irregular or on-call basis, he is not eligible to file a complaint.

18Although not defined in Regulation 378/07, the “material time” is properly interpreted as the time when the alleged contractual violation occurred. In this case, the complainant was advised by letter dated September 2, 2015 that his contract was being terminated effective December 31, 2015. Whether one considers September 2, 2015 or December 31, 2015 as the date of the alleged violation, the material time falls within those parameters.

19The only issue is the nature of the complainant’s employment during that period.

20I am persuaded that the complainant was employed on a fixed term contract. Although arguing that there was no ‘last’ contract as none had been signed, it was acknowledged by the complainant that the signing of fixed term contracts is, in practice, often delayed. However, more persuasive is the nature of the contracts that were signed by the complainant. They expressly record his agreement that he was employed pursuant to a fixed term contract. The specific term is identified on each of the documents that bear his signature. The second signed contract continued following the date of the accident and into the period when the complainant was not at work. It is also the case that the complainant’s Form 1 acknowledges that he was hired on August 8, 2013 as a fixed term employee.

21If I were to conclude that no further contract had been entered into because of the failure to sign the extension, this application would fail in any event, as the employment relationship would have simply ended on January 21, 2015 at the end of the term identified by the last signed contract. I accept that the employer renewed the contract for a further term to end January 20, 2016. There was no suggestion that the remaining terms of employment were to change in any way.

22In addition, I am also persuaded that the complainant was employed on a fixed term contract on an irregular or on-call basis. Again, the first WIN document expressly confirms that the position is as an “on call” Operational Manager. The documents confirm that the complainant was not a “regular” employee. Finally, a review of the complainant’s schedules confirms that he was both offered work and did work on an irregular basis throughout the period of his employment on a fixed term contract.

23I find therefore that, at the material time, the complainant was employed for a fixed term on an irregular or on-call basis. By virtue of subsection 5. (2) 5. of Regulation 378/07, he is not eligible to file a complaint to this Board. As such, this Board has no jurisdiction to entertain the application filed by the complainant. Whether that result is fair is not the issue. This Board’s jurisdiction is limited to the authority vested to it under the Public Service of Ontario Act, 2006 and Regulation 378/07 made pursuant to that statute.

24Having regard to all of the above, this application is hereby dismissed.