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HomeMy WebLinkAbout1990-2188.Hendershott.92-01-16 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD EMPLOYES DE LA COURONNE DE L'ONTARIO COMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1z8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1z8 (4 76) 326- 1388 (4 1396 2188/90 IN the MATTER OF AN ARBITRATION Under CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hendershott) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) BEFORE : FOR THE GRIEVOR FOR the EMPLOYER w. Low E. Seymour A. Merritt Employer Vice-Chairperson Member Member P. Lukasiewicz Counsel Gowling, Strathy Henderson Barristers & Solicitors J. Smith Counsel Legal Services Branch Ministry of Community & Social Services BEARING November 26, 1991 DECISION The Grievor, Gertrude Hendershott, turned 65 on September 6, 1990. Section 17 of the public Service Act provides as follows: Every civil servant shall retire at the end of the month in which he attains the age of sixty-five years, but, where in the opinion of the Commission special circumstances exist and where his deputy minister so requests in writing, he may be re-appointed by the Lieutenant Governor in Council for a period not exceeding one year at a time until the end of the month in which he attains the age of 70 years." R.S.O. 1980, c. 418, s. 17. Miss Hendershott grieved: "That I have been improperly terminated at retirement age without due consideration of my request for an extension She seeks an order that she be given the extension with full retroactivity, including wages, benefits, etc. Miss Hendershott was employed at the Oxford Regional Centre, which is operated by the Ministry of Community and Social Services for developmentally challenged individuals. She was the supervisor of stenographic services, and at her retirement date had been employed by the employer for 22 years. On September 10, 1990, Miss Hendershott made a written request for an extension of the date upon which she must retire until July 18, 1991, which would have been her 23rd anniversary date. The reason she gave for the request was that the extra time of service would allow her to drop 2 off a lower income year and add a higher income year for purposes of averaging and calculating her pension. On September 25, 1990, John Hewitt, the Administrator of the Oxford Regional Centre, replied to Miss Hendershott's request for an extension as follows: "Further .to your letter of September 10, 1991, I must advise. that special circumstances do not apply which would allow a granting of an overage extension. If you have any questions, I would be pleased to have a representative meet with you. Please accept my best wishes for your retirement, Gert. I have enjoyed working with you. Miss Hendershott did not raise any questions or initiate any discussion following Mr. Hewitt's letter to her other than the launching of this grievance. It is the contention of the Union that there has been a procedural unfairness toward Miss Hendershott and that for that reason, she ought to be granted the extension requested regardless of the merits of her request. It is contended that the procedural fairness which was owed to Miss Hendershott and which was not accorded to her was an obligation on the part of the employer to give reasons as to why the extension was not granted. It is contended that Mr. Hewitt's statement that "no special circumstances had been found to apply", and his invitation to Miss Hendershott to raise questions was not sufficient compliance with 3 the employer's obligation of procedural fairness. It was also contended that the language of s. 17 of the public Serv ice Act permits the employer to retire an employee where an extension is requested only if the employer gives reasons why it is of the view that no special circumstances exist. No evidence was called on behalf of the Grievor, and it is not suggested that any special circumstances did in fact exist in the opinion of the Commission warranting re-appointment. Nor was it suggested that the Deputy Minister had requested in writing that Miss Hendershott be re-appointed. In short, none of the prerequisites to re-appointment set out in s. 17 of the Act existed. As well, the parties agree that where the exercise of managerial discretion is involved, the following considerations apply: 1. The decision must be made in good faith and without discrimination; 2. It must be a genuine exercise of discretionary power as opposed to rigid policy adherence; 3. Consideration must be given to the merits of the individual application under review; and 4. All relevant facts must be considered and conversely irrelevant considerations must be rejected. (v. Kuynties and Th e Ministry of Transportation and Communications (513/84) per Vice Chairman Verity.) 4 It is not suggested, nor was there evidence, that Mr. Hewitt's exercise of the managerial discretion in denying Miss Hendershott's request violated any of these four considerations. Mr. Hewitt gave evidence as to his consideration of Miss Hendershott's request. The employer had established by January of 1989 a multi-year plan extending from 1987 to 1994 for, inter alia, staff reduction. It was Mr. Hewitt's evidence that wherever possible, staff reduction was to be accomplished through normal attrition, which was anticipated to account for approximately 60% of the planned staff reduction. The employer wanted to avoid layoffs and had identified retirement as one area of normal attrition. It was the employer's- anticipation that when a retirement came up, and provided that there were no special circumstances, that the vacancy created by the retirement could be used in the planned staff reduction. The actual positions which were to go toward the normal attrition making up the staff reduction were not identified, however, nor was the number of positions to be eliminated immutable. Mr. Hewitt testified that upon receiving Miss Hendershott's request for an over-age extension, he consulted with Human Resources to see if he had the relevant policy and criteria to be considered. He also checked as to Miss Hendershott's eligibility for pension and consulted with the manager of the 5 department, Mrs. Nielsen, to review the Department's staffing needs. Mr. Hewitt considered whether Miss Hendershott had special skills or knowledge, whether a replacement was or was not readily available, whether or not she was able to carry out the full responsibilities of the job and whether the promotion or re- deployment of surplus staff would or would not be unduly affected. He concluded that, in light of the importance of the facility's long-term plan to downsize its staffing complement, these questions were moot He concluded also, however, that Miss Hendershot did not have special skills or knowledge and that even had a replacement been desired, one was readily available. He considered also whether special circumstances existed. He gave evidence that of the three other requests-that he had received for overage extension, he had granted extensions' to two on compassionate grounds. Those requests emanated from employees who required additional time of service in order to qualify for pension, whereas the third did not. Mr. Hewitt testified that as he had satisfied himself that Miss Hendershott already qualified for pension, he did not consider hers to be a special circumstance and he made the decision to deny the request for the overage extension on the basis that no special circumstances existed. It is not contended on behalf of the Grievor that it was in any way illegitimate for Mr. Hewitt to weigh the various interests which he weighed or to come to the conclusion to which he came in the result. The complaint rests upon the allegation that 6 he did not give adequate disclosure of the reasoning by which he came to his decision not to grant the extension. The Grievor relies on the desision of Vice Chairman Keller in Grumme t t and The Ministry of Financial Instituti ons (1656/90) which allowed a grievance brought by a grievor who had been permitted several overage extensions but had been dismissed during the term of one of those extension. Notice of that dismissal was not given to her, however, until she requested a further extension at which time she was advised that none would be accorded to her. It is the position of the employer that the Grummett decision was a dismissal case, and not applicable to the facts in this grievance. The employer also contends that there was no breach of any duty of fairness. The submission made on behalf of the Union that s. 17 of the Public Service Act entitles an employee to continue in employment after the age of 65 unless the employer discloses reasons why special circumstances do not exist entitling him or her to stay is untenable. The language is clearly mandatory that the employee "shall retire, which I construe to mean a prima facie termination of the employment pursuant to the Statute or a positive obligation upon the employee to leave without requirement of any positive action being taken on the part of the employer to effect the termination. The language of s. 17 in my view gives an unfettered discretion to the Commission in determining whether special circumstances exist, but even assuming that special 7 circumstances do exist (which is not the case) there is no positive requirement that the employer re-appoint the employee nor any corresponding right of the employee to a re-appointment. A re- appointment may be made if the Deputy Minister so requests in writing. Counsel for the Union urges upon us that we need not and ought not consider the merits of the request for an extension, but in passing I would note that there appears to be no basis to challenge the propriety or validity of the employer's exercise of discretion not to grant the requested extension. In my view, the facts in this grievance are so clearly distinguishable from those in Grummett that that decision has no applicability here. Firstly, in Grumm ett, it had already been found that. special circumstances did in fact exist and had triggered the extension permitted under s. 17 of the Publ ic Service Act - not merely once but for three successive terms. There was no suggestion that the special circumstances which had existed warranting the repeated re-appointments had changed during the currency of the third of the appointments, the period during which the employer made a decision to terminate Miss Grummett’s employ. During that term, Miss Grummett had been performing as Acting Financial Officer 2. She competed for and failed to obtain the position of Financial Officer 2. Her situation was exacerbated by the fact that the employer had also appointed another employee to Miss Grummett’s old position of Financial Officer 1, thus effectively squeezing out Miss Grummett. To compound the matter, a the employer, having decided to terminate Miss Grummett upon these two events, did not advise her of its decision to terminate until such time as she requested a fourth overage extension. At that point her request was denied on grounds that no special circumstances existed. At the time of the denial, Miss Grummett was told that special circumstances included the need to keep an employee on to train a replacement, the need to retain an individual involved in a special project or the need to retain an individual who possessed technical expertise. Notwithstanding a specific request by Miss Grummett that the employer put its reasons in writing, the employer replied: "As per your request, this will confirm that for the - reasons detailed in our discussion your request for an additional overage extension cannot be supported." In. Grumm ett, the employer had, by its own acts, created a situation where the department was over-staffed by one person, and instead of facing the matter head on, it now denied the existence of special circumstances when such circumstances pre- existed, and there was no evidence of any change as to those circumstances. Miss Hendershott, on the other hand, was invited to ask questions following Mr. Hewitt's advising her that he did not find special circumstances to apply to her request, but she did not do so. One is hard put to imagine how it would be possible to give reasons for holding the opinion that special circumstances do not exist where there are no restrictions or parameters defining when 9 they exist or when they do not. While the Ministry of Human Resources provided several criteria which could be considered, the discretion of the employer is not limited to considering those factors or indeed any particular set of criteria, so long as it acted bona fide. In this grievance, however, there is no pre- existing overage extension and there is no termination of the employment by the employer. There is no material non-disclosure and no refusal to give reasons. In my view, on the evidence before this panel, there has been no procedural unfairness on the part of the employer toward this employee. We were referred to two decision of the Supreme Court of Canada during argument, Nicholson v. Halamann-Norfolk R egional Board of Commissioners of Police, et al Police t [1979], 1 S.C.R., 311, and Indian Head School Division No. 19 v. KNight 30 C.C.E.L., 237. Both are distinguishable on their facts and neither decision is applicable to the instant grievance. In Nicholson, the appellant was employed as a constable and was dismissed from his office without having been given reasons and hence an opportunity to state his case. Nicholson was deprived of an existing right and the court imposed an obligation of giving reasons to an employee in such circumstances in furtherance of the employer's duty of fairness. In Indian Head School v. Knight the employee, Knight, a director of education, was dismissed without cause on three months' notice. His claim for wrongful dismissal was dismissed at trial, but allowed on appeal, the Court of Appeal holding that s. 10 112 of the Saskatchewan Education Act required 30 days notice of an intention to terminate and a hearing. The Supreme Court reversed the Court of Appeal, holding that the respondent could be dismissed at pleasure and that the content of the duty of fairness in his case was minimal in that he was entitled to know the reasons for dissatisfaction with his performance and to an opportunity to be heard. The Court noted that, generally speaking, there is no duty of procedural fairness in dismissing the holder of an office at pleasure in the absence of provisions in the statute, regulations or contract governing the relationship which conver a right to a hearing or to make representations. This again was a case in which the employee had an existing office from which he was dismissed. Miss Hendershott did not have any existing right to continue to be employed after the end of the month in which she reached the age of 65 years. On the contrary, she had a statutory obligation to retire, and there was no obligation upon the part of the employer to re-appoint her. I find that, in any case, there was no procedural unfairness toward the Grievor in all of the 11 circumstances, and for the foregoing reasons I would dismiss the grievance.