HomeMy WebLinkAbout1987-2613.Miller.89-02-141
e.wLOYESoEL* COURONNE M L’ONTARIO
C@lMISSION DE
SETTLEMENT REGLEMENT
DES GRIEFS
IN THE MA'l'TER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETl!LENENT BOARD
Between: OPSEU (G. Miller)
Before:
-and-
Grievor
The Crown in the Right of Ontario
(Ministry of Correctional Services) Employer
J. W. Samuels
I. Freedman
M. F. O'Toole
Vice-Chairperson
Member
Member
For the Grievor: L. Rothstein
Counsel
Gowling and Henderson
Barristers and Solicitors
For the EmDlover: L. M. McIntosh
Counsel
Crown Law Office, Civil
Ministry of the Attorney General
October 12, 1988
October 18, 1988
November 23, 1988 January 23, 1989
2
This is our second and final award in this matter.
Gerald Miller is a correctional officer at the Whitby Jail. On
February 24, 1988, he was informed that he was dismissed from his
employment effective February 26, because of criminal charges against
him involving sexual assault. The charges were to be heard in January
1989. Mr. Miller immediately grieved that there was no just cause for the
dismissal.
Our hearing was scheduled to begin on October 12,1988.
On October 7, Mr. Miller received a letter from the Ministry’s
Regional Director of Metro Region, Mr. J. L. Main, informing him that M
the Mr. Main was rescinding the dismissal and
would now record the period between February 26 and October 7 as a
suspension without pay “in accordance with Section 22(l) of the Public
Service Act”. Furthermore, Mi. Main advised the grievor that he was
being suspended for a further twenty working days “under Section
22(l)....to enable the Ministry to undertake a further review and
investigation into the matter of your criminal charge”.
Section 22( 1) of the Public Service Act provides:
A deputy minister may, pending an investigation,
suspend from employment any public servant in
his ministry for such period as the regulations
prescribe,. and during any such period of
suspension may withhold the salary of the public
servant.
Section 18 of the Regulations pursuant to the Act provides:
(1) Where the deputy minister suspends a public
servant from employment pending~ an
investigation, the period of suspension shall not
exceed twenty working days.
(2) Notwithstanding subsection (1) where in the
opinion of the deputy minister, an additional
period of time is required to complete the
investigation, the deputy minister may renew the
period of suspension for not more than twenty
working days in each case, for such additional
periods as are considered necessary.
Thus, when our hearing opened on October 12, we had gathered to
deal with a grievance against dismissal, and there was now no dismissal.
Up to October 7, the Ministry simply~ deemed the absence from work as a
suspension without pay pursuant to section 22( 1) of the Public Service Act.
Following October 7, the suspension was for twenty days to November 4,
1988.
After some preliminary skirmishing, when~ October 12 drew to a
close, it was agreed that the grievor would now file a new grievance
against the suspension without pay, and that we would reconvene as
scheduled on October 18 to hear this new grievance. The parties would
waive any procedural requirements of the grievance procedure under the
collective agreement, and agreed that this Board would have jurisdiction to
deal with the new grievance.
We reconvened as agreed on October 18, faced with the new
grievance.
Now the Union asked for a preliminary ruling. It was argued that
the Ministry should be prohibited from introducing evidence to justify the
retroactive suspension, pre-October 7. Firstly, section 22(l) of the Public
Service Act provides for a suspension “pending an investigation”, and the
Ministry conceded that in fact there had been no real effort to investigate
before October 7. Secondly, the suspension could only be “for such period
as the regulations prescribe” (which “shall not exceed twenty working
days”, according to section 18(l) of the regulations), and the Ministry’s
recharacterization of the pre-October 7 period meant that the suspension
4
was for much longer than was permissible. Thirdly, on general principles,
one cannot suspend retroactively.
The Ministry responded that~ the Union must elect whether to
proceed before the Grievance Settlement Board with respect to the merits
of the suspension, or to proceed to the Divisional Court in order to raise
procedural arguments concerning the method of suspension. It was
suggested that this Board does not have authority to consider an allegation
that the statutory requirements have not been met. In any event, the
Ministry argued that it had authority to remove the grievor from his
employment because of a substantial and immediate risk to the institution,
and that this authority flowed either from section 22(l) of the Public
Service Act, or from the Employer’s general right to manage.
In our earlier award, dated November 7, 1988, we said (at page 4):
In our view, our jurisdiction flows from section
18(2)(c) of the Crown Employees Collective
Bargaining Act, which enables an employee to
grieve “that he has been.....suspended from his
employment without just cause’!. In our case, the
grievance deals with particular action by the
Ministry. That action is set out in the Ministry’s
letter of October. 7, 1988. It involves “a
suspension without pay pending investigation, in
accordance with section 22(l) of the Public
Service Act” (emphasis added) from February 26
to October 7, imposed on October 7, and a
further suspension of twenty days “under section
22(Z)” to enable the Ministry to undertake a
further review and investigation. The issue
before us therefore is clearly whether or not the
Ministrv had iust cause to sumend “in accordance
with section 22(l) of the Public Service Act”.
This is the action which the Ministrv took: this is
the action against which the grievor comolains;
this is the action for which the Ministrv must now
show iust cause.
Furthermore, in our view, our jurisdiction
is to determine all matters which bear on the
validity of the suspension. (emphasis added now)
We concluded (at page 8):
In sum, in our view, section 18(2) of the Crown
Employees Collective Bargaining Act gives us
broad authority to hear and determine the
grievor’s complaint that there was no just cause
for his suspension pursuant to section 22(l) of the
Public Service Act, and this includes a
consideration of the procedural aspects of the
suspension.
Before the issue of our award, on November 4, 1988, Mr. Miller
received yet another letter from the Ministry, this time over the signature
of Mr. D. A. Parker, the Regional Director for the Metro Region. Mr.
Parker said that the matter of Mr. Miller’s suspension without pay pending
an investigation had now been referred to him and “After consideration of
the information available, it has become clear that the investigation cannot
be fully completed until the disposition of your charge in the criminal
court”. Therefore, Mr. Parker advised the grievor that he was suspended
without pay for a further twenty working days, “in accordance with
Section 22( 1) of the Public Service Act”.
Our hearing continued on November 23, 1988, and concluded on
January 23, 1989.
Now that we have heard all of the evidence concerning the Ministry’s
action in this matter, we know the following:
1. It appears that, in late November 1987, the grievor was charged
with sexual assault of his step-daughter and that the charges
related to incidents over a three-year period.
2.
3.
4.
6
It appears that, immediately he learned of the charges, the
grievor informed the then Superintendent of the Wbitby Jail,
Mr. K. Clark, of the charges. From the outset, the grievor has
maintained that he is innocent and that he wants to continue
working.
However, the grievor had had an alcohol and drug abuse
problem from about 1983, though he had continued to work and
had never taken drugs while at work. Now that the sexual
assault charges had been laid, Mr. Clark arranged for the
grievor to go to a drug abuse program in the United States, and
it appears that this was done with the approval of the Regional
Director of the Ministry. The grievor left the Jail to go on this
program, and he has never been back at work. The Ministry’s
evidence accepts that the grievor has been drug-free since
November 1987, and the drug problem has never been a basis
for the suspension without pay pending an investigation.
Mr. P. Mulhem, a man with over thirty years of experience
with the Ministry, was the Acting Superintendent at the Whitby
Jail from January 18 to April 2.5; 1988. When he arrived at the
Jail, he looked first at several administrative problems, one of
which was absenteeism. He noted that Mr. Miller had been off
~ work for some time and he checked into the reasons for this.
He heard “mention” of criminal charges, but no details. He
learned that Mr. Miller had eleven years of unblemished service
as a correctional officer. He wanted to meet with the grievor.
5. On February 2, Mr. Mulhem met with Mr. Miller. Mr. Miller
told Mr. Mulhem about the drug abuse program, and briefly
described the nature of the offences with which he had been
charged. Mr. Mulhem expressed his concern about bringing the
grievor back to work in these circumstances.
6.
7.
8.
7
Over the next few weeks, Mr. Mulhem investigated the matter.
He spoke with the Ministry’s Regional Office. He spoke with
the Crown Attorney’s Office in Oshawa. He spoke with the
detectives involved from the Durham Regional Police. By the
time he was done, Mr. Mulhem had gathered all of the
information that the Ministry has gathered up to this day. Mr.
Mulhem had canvassed the possibility of Mr. Miller working at
another facility pending the disposition of the criminal charges,
but no appropriate institution was found. He reported his
findings to his Regional Office. He made it clear that he did not
want Mr. Miller working at the Whitby Jail unless and until the
charges had been disposed of favorably to Mr. Miller. He
recommended that Mr. Miller be suspended without pay.
In late February 1988, the Regional Director instructed Mr.
Mulhem to dismiss Mr. Miller from the service. This was done
by Mr. Mulhem in his letter to the grievor dated February 24.
Mr. Mulhem said that “In my opinion you would present a
reasonably serious and immediate risk to the business of the
Whitby Jail if the employment relationship continues”.
As we said at the outset of this award, on October 7, 1988,
shortly before our hearings were to commence, Mr. Miller
received a letter from the Ministry’s Regional Director of
Metro Region, Mr. J. L. Main, informing him that on the advice
of legal counsel Mr. Main was rescinding the dismissal and
would now record the period between February 26 and October
7 as a suspension without pay “in accordance with Section 22( 1)
of the Public Service Act”. Furthermore, Mr. Main advised the
grievor that he was being suspended for a further twenty
working days “under Section 22(l)....to enable the Ministry to
8
undertake a further review and investigation into the matter of
your criminal charge”.
9. Following this letter, the Ministry assigned an inspector from its
Investigations and Inspections Section to investigate. Mr. N.
Gould was the inspector, and he filed his report on October 31.
He had found out no more than had Mr. Mulhem in February
1988. He recommended that the Ministry await the outcome of
the court proceedings.
10. Nothing more has been done by way of investigation and it
seems clear that the Ministry intends no further investigation
before the disposition of the criminal charges. On .NoCember 4,
1988, the Ministry wrote again to Mr. Miller suspending him
for a further twenty working days pending an investigation
pursuant to section 22(l) of the Public Service Act. We
presume that similar letters have been sent to Mr. Miller every
twenty days since then.
We heard considerable and conflicting evidence concerning the risk
to the Whitby Jail if Mr. Miller was continued in his employment pending
his day in court on the criminal charges. Opinions were expressed by Mr.
Mulhem for the Ministry, and Mr. D. B. Mair, a correctional officer at the
jail, for the Union. We heard evidence concerning the possibility of
moving Mr. Miller to some other job within the Jail which would involve
significantly less contact with other officers and inmates. It suffices for
our purposes to say that we were not convinced that there was an
overwhelming risk to the Employer and its business if the grievor was
maintained somewhere in the employ of the Jail pending the disposition of
the criminal charges. However, in our view, this evidence is not
determinative of this case.
9
The essential point is that the Ministry chose to suspend Mr. Miller
pendine an investigation nursuant to section 22(l) of the Public Service
&. This is a special statutory power. It can only be used in appropriate
circumstances and for the purpose expressed. As this Board said in Fish,
634/83 et al (Springate), at page 13, “Presumably this authority is given to
a deputy minister because in some instances it is inappropriate to allow an
employee to remain in his position while allegations against him are being
investigated”. The Board in Fish went on to say “A suspension that was
initially justified may cease to be so if the investigation is not pursued with
due diligence”. Indeed, section 18 of the Regulation pursuant to the Act
makes clear that the investigation is to be undertaken with due diligence.
Subsection 1 limits the suspension to twenty working days. Subsection 2
permits an extension of the suspension for further periods of twenty days
each if “an additional. period of time is required to complete .the
investigation” and then only “for such additional periods as are considered
necessary”. By “necessary”., it is meant that the additional time is
“necessary” to comnlete the investieation. This legislation does not
authorize an indefinite suspension when there is no investigation intended
or carried out. In order to justify a suspension under section 22(l) of the
Public Service Act, a deputy minister has to launch an investigation, and
the suspension can only be for as long as is legitimately and reasonably
needed to carry out the investigation. Each twenty day suspension is a
separate act and there is to be no further suspension unless additional time
is require to complete the investigation.
The Ministry did not suspend Mr. Miller wi,thout pay pursuant to its
general management rights, in which case it would have had to show just
cause for the suspension. And there is jurisprudence supporting
management’s right to suspend an employee without pay pending the
disposition of criminal charges, if the particular circumstances justify the
suspension. With respect to the general jurisprudence, see Re Phillips
10
Cables Ltd. and U. S. W., Local 7276 (1974), 5 LAC (2d) 274 (Adams);
Re Toronto Newspaper Guild, Local 87 and Toronto Star Ltd. (1972), 24
LAC 187 (Rayner); Re Dominion Stores Ltd. and Retail, Wholesale &
Department Store Union, Local 414 (1974), 6 LAC (2d) 373 (Johnston);
Re Toronto Harbour Commission and Canadian Union of Public
Employees, Local 186 (1983), 8 LAC (3d) 433 (Kates). With respect to
disciplinary suspension without pay of public servants in Ontario pending
the outcome of criminal charges,, see Re Knudsen et al and Liquor Control
Board of Ontario, a decision of the Grievance Settlement Board, published
at (1980), 26 LAC (2d) 301 (Eberts); and Re the Crown in Right of
Ontario (Liquor Control Board of Ontario and Liquor Licence Board of
Ontario) and Ontario Liquor Board Employees Union, another decision of
this Board, published at (1984), 18 LAC (3d) 251 (McLaren).
The Ministry was in control of the situation. It chose to suspend Mr. _
Miller pending an investigation uursuant to section 22(l) of the Public
Service Act. And, in our view, except for a very brief period, the
Ministry has not shown that it was necessary to suspend Mr. Miller for this
purpose.
For the period February 26 to October 7, 1988 (which the’Ministry
retroactively deemed to be a suspension instead of a dismissal), there was
never any intention to investigate and no investigation was done
whatsoever. It is simply not possible to say that Mr. Miller was suspended
pending.an investigation during that period. It is an abuse of section 22(l)
to characterize this period as a suspension pursuant to the section. The
statutory power does not confer on a deputy ~minister some general right to
suspend. The power is to be used if it is necessary to suspend in order to
do an investigation. Beyond that, section 22(l) has no application.
For the period October 7 to November 4, 1988, the Ministry did
conduct an investigation and section 22( 1) was properly used.
11
But thereafter the Ministry had no further interest in investigating.
In our view, waiting for the disposition of criminal charges is not an
investigation. Once again, it is an abuse of section 22(l) to use the power
in order to wait indefinitely for the disposition of criminal charges. Once
the Ministry had completed its investigation, the Deputy Minister’s
authority under section 22(l) came to an end. Now the Ministry had to
decide what to do in light of its fmdings during the investigation.
With respect to Mr. Miller-k day in court, he did appear on January
13, 1989, and the case was laid over until some time in February. It is not
clear at all when the charges will finally be disposed of.
In McRae, 50176 (Swan), this Board considered the justness of a
suspension without pay pending an investigation, where the grievor had
been charged with a criminal offence. In his letter to the grievor, the
Deputy Minister said that, in order to ensure that the grievor’s rights were
not adversely affected and to preserve the grievor’s right to remain silent,
there would be no active investigation nor a hearing until the charges were
disposed of. In fact, the Ministry did undertake some investigation after
the suspension was imposed and before the charges were heard. The Board
referred to the arbitral jurisprudence concerning disciplinary suspension
pending determination of criminal charges and decided the case based on
that jurisprudence. In our view, it cannot be said that this Board has
decided that, pursuant to section 22(l) of the Public Service Act, a deputy
minister can suspend “pending an investigation”, when in fact there is no
investigation intended or carried out. The Board in McRae never did
consider the particular nature of the suspension which is authorized in
section 22(l). There appear to have been no arguments put to the Board
on this point. And even within the frame of reference which the Board in
McRae adopted, the Board acknowledged the decision of the adjudicator
under the Public Service Staff Relations Act in Re Treasury Board and
Guenot (1974), 6 LAC (2d) 400 (Simmons), who decided that, where too I
0
12
long a period would elapse between arrest and trial, the employer could not
stand idly by and await the outcome of protracted court proceedings, but
rather must reach its own conclusion based on the facts available (see at
pages 12-13 in McRae).
We said in our earlier award in this matter
,The issue before us therefore is clearly whether
or not the Ministry had just cause to suspend “in
accordance with section 22(l) of the Public
Service Act”. This is the action which~ the
Ministry took; this is the action against which the
grievor complains; this is the action for which the
Ministry must now show just cause.
13‘
In our view, the Ministry did not properly suspend Mr. Miller
pursuant to section 22(l) of the Public Service Act for the period February
26 to October 7, 1988, and after November 4, 1988. He is to be
compensated for any monetary losses he suffered as a result of the
wrongful suspensions, and his record must be amended so that he is
considered to have worked during these periods of wrongful suspension.
We will remain seized of this case to deal with any matter related to
this order which the parties are unable to resolve themselves.
Done at London, Ontario, this 14th day of February , 1989.
(Addendum attached)
I
ADDENDUM
Although I concur in the disposition.of the grievance, I wish to add an
obiter comment regarding the scope of the Employer's general authority to
suspend an employee.
In my opinion, quite apart from Section 22(l) of the Public Service Act, the
Employer may under its general right to manage, suspend an employee pending
an investigation and before taking final disciplinary action. This has long
been the approach of arbitrators when interpreting management rights in the
private sector and therefore, in the absence of any authority to the
contrary, I presume the same principle applies to management rights in the
public sector.
Arbitrators, however, have been careful to state that management may not
indefinitely suspend an employee but only for such time as is reasonably
necessary to complete the investigation and make a final decision. \Jhile
this authority is less restrictive than Section 22(l) of the ?ublic Service
Act, it still requires a bona fide investigation to be conducted within a
reasonable time.
It was quite open to the employer here to have suspended and investigated
under the above general authority (presumably by omitting any reference to
Section 22(l)). However, having specifically invoked Section 22(l), the
employer must be held to its strict requirements and clearly it failed to
comply.
Even presuming the general authority had been invoked, it would not appear to
greatly assist the employer's position in the circumstances of this case as
that authority does not condone an indefinite suspension without investi-
gation and that is, in effect, what the employer's action constituted, except
for the period October 7 to November 4, 1988.
In addition to suspension for the purpose of investigation there is authority
to the effect that management may suspend pending the outcome of criminal
proceedings. However, certain rigorous tests must be met, chiefly substan-
tial and immediate harm to the employer's business or reputation, before this
right can be invoked. I agree with my colleagues that tne employer's case in
this regard was far from compelling.
M.F. O'Toole
Member