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HomeMy WebLinkAbout2013-3204.Speck.14-11-19 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-3204 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Speck) Association - and - The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFORE Christopher Albertyn Vice-Chair FOR THE UNION Marisa Pollock Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Lisa Compagnone Treasury Board Secretariat Legal Services Branch Counsel FOR THE ASSOCIATION OF LAW OFFICERS OF THE CROWN (ALOC) Mark Wright Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel HEARING July 9, September 15, 2014 - 2 - Decision [1] A previous decision was issued in this matter on April 11, 2014. Pursuant to that decision, the Employer (MOH) has agreed to have the grievances (filed each by AMAPCEO and ALOC pursuant to their separate collective agreements) heard together. Facts [2] The grievor, Todd Speck, worked from June 4, 2002 as a program analyst for the Ministry of Health and Long-Term Care (MOH). He took an educational leave of absence from September 2008 to May 2010, during which he completed his law degree. He returned to work for MOH. [3] On February 19, 2013 Mr. Speck was informed by MOH that he was being suspended with pay pending an investigation against him under the Workplace Discrimination and Harassment Policy (WDHP) and Workplace Violence Prevention Policy (WVP). Mr. Speck’s non-disciplinary suspension by MOH was extended for 20-day periods. [4] While under the non-disciplinary suspension from MOH, Mr. Speck sought and obtained an articling student position with the Ministry of the Attorney-General (MAG), with the Financial Services Commission of Ontario (FSCO), in order to qualify himself as a practising lawyer. A Temporary Assignment / Secondment Agreement was concluded between MAG, as the receiving Ministry, MOH, as the releasing Ministry, and Mr. Speck in July and August 2013. The purpose of the secondment was so that Mr. Speck could work as an articling student. [5] On July 2, 2013, while still on paid suspension from his position at MOH, Mr. Speck was advised by the Assistant Deputy Minister of MOH of the possible implications for his impending secondment to MAG of the continuing investigation into his alleged misconduct: Please also be advised that the investigation will continue during your secondment. When the investigation has been completed and findings have been reviewed, I will be in contract with you, at which time any appropriate disciplinary measures may be taken, up to and including dismissal. [6] Mr. Speck was therefore alerted to the potential jeopardy to his articling student position - 3 - as a consequence of the MOH WDHP investigation. [7] On July 29, 2013 Mr. Speck started working for MAG at FSCO as an articling student and his disciplinary suspension ended. [8] The period of the secondment was from July 29, 2013 until May 30, 2014, by which date Mr. Speck would have completed his articles. During this period Mr. Speck was to be under a fixed term contract. He signed a fresh Conflict of Interest Attestation, he completed a fresh Oath of Office and a fresh Oath of Allegiance. His Articles of Clerkship were signed, and commenced, on July 29, 2013, for a period of 10 months. [9] MOH’s WDHP and WVP investigation continued. [10] While working for MAG at FSCO the grievor was subject to the collective agreement between ALOC and the Crown. Article 5.1 gave just case protection of to him. He could be discharged only “for just and sufficient cause”. [11] While working as an articling student at FSCO, on February 3, 2014, Mr. Speck was advised in writing by MOH that MOH had completed its WDHP and WVP investigation and it had determined that he had breached the WDHP policy in various ways. MOH informed him that it had concluded that his conduct had given just cause for his dismissal and that he was being dismissed for cause. He was told that he ceased to be employed by the Crown. [12] In terminating Mr. Speck MOH relied on the provisions of the Public Service of Ontario Act, 2006, S.O. 2006, c. 25, sched. A (“the Act”). Section 40 provides: When the dismissal of a public servant takes effect, he or she ceases to be employed by the Crown. [13] The Assistant Deputy Minister of MOH who wrote to Mr. Speck on February 3, 2014 explained her delegated authority, as follows: Accordingly, by the authority delegated to me under Section 44 of the Public Service of - 4 - Ontario Act, 2006 I hereby dismiss you for cause in accordance with section 34 of the Act, effective February 3, 2014. [14] Section 44 empowers the Public Service Commission, the employment agency of the Crown, to delegate its employment powers to deputy ministers, who may themselves sub- delegate. Under s. 34(b) the Public Service Commission has the power to dismiss a public servant for cause. [15] As a direct consequence of MOH’s actions, MAG wrote on the same day, February 3, 2014, to the Registrar of the Articling Program of the Law Society of Upper Canada to advise that MOH’s termination of Mr. Speck’s employment meant that his Articles with MAG also terminated. Mr. Speck had ceased to be employed by the Crown once MOH had dismissed him. [16] MAG’s letter to the Registrar included the following: I confirm that Mr. Speck received a satisfactory articling experience from July 29, 2013 to February 3, 2014 when he served his articles, and that the articles served during this period were completed in accordance with the Articling Goals and Objectives. I further confirm that Mr. Speck completed all articling tasks that were assigned to him during this period. [17] Also on February 3, 2014, the Director of the Legal Services Branch of FSCO wrote to Mr. Speck to advise that his articles were ended as a necessary consequence of his termination by MOH. The letter explains that “under the applicable provisions of the Public Service of Ontario Act, 2006, that govern your employment, termination by MOH has the effect of immediately terminating your Articles with MAG at the Legal Services Branch of FSCO”. Mr. Speck had less than four months left of his fixed term contract as an articling student to complete his articles of clerkship. [18] Following the termination of Mr. Speck’s employment, AMAPCEO filed a grievance on his behalf challenging the just cause of his termination by MOH, and ALOC filed a grievance on his behalf challenging the termination of his articles. - 5 - The issue [19] The issue to be decided as a preliminary matter, arising from these facts, is the following: assuming, for the purposes of the argument, that MOH had just cause to terminate the grievor’s employment, is that sufficient by itself to satisfy both the just cause provisions of the ALOC collective agreement and the requirements for articles of the Law Society of Upper Canada? ALOC, supported by AMAPCEO, argues this cannot be sufficient; the Employer argues it is. [20] There is no suggestion that Mr. Speck engaged in any culpable conduct as an articled student to give his principal or FSCO or MAG just cause to terminate his articles. It is common cause that his articles were terminated only because his employment with the Crown was terminated by MOH. In fact, Mr. Speck was given unqualified letters of commendation for his work as an articling student by his principal and other lawyers he worked for. Relevant statutory and contract provisions and submissions [21] A settlement agreement between the Crown and ALOC concluded on December 1, 2009 describes the Terms and Conditions of Employment for Articling Students. At Clause 3.04 of those terms, the parties recognize that the student employment relationship, such as Mr. Speck’s articles, is subject to the authority of the Law Society, whose requirements prevail over the parties’ terms of employment for articling students. [22] Section 10.33 of the Law Society’s Licencing Process Policies provides: A Candidate or Principal may terminate Articles where problems arise between the Candidate and the Principal that cannot be resolved to the satisfaction of the Candidate and the Principal. [23] ALOC argues that no problem had arisen between Mr. Speck and his principal when MAG terminated his Articles. Accordingly it submits that the termination of Mr. Speck’s articles is inconsistent with the Law Society regulations, so prima facie unjust. [24] Article 3.05 of the Terms and Conditions of Employment for Articling Students reads: - 6 - The Articles of Clerkship, the Education Plan, and the Employer’s and students’ rights and responsibilities with respect to the Law Society, …, are not incorporated into the collective agreement or this Appendix [the Terms and Conditions of Employment for Articling Students], nor are they matters which may be the subject of a difference, grievance, dispute or claim under the collective agreement or this Appendix. [25] This suggests that an alleged violation of rights and responsibilities with respect to the Law Society is not grievable. While ALOC accepts this, and that the violation of a Law Society requirement is not the subject of its grievance for Mr. Speck, it argues that the Law Society regulations are part of the analysis, a factor I should take into account, when considering all the relevant circumstances to determine whether Mr. Speck’s termination lacked just cause. [26] Mr. Speck’s status as an articling student is described in Article 3.01 of the Terms and Conditions of Employment for Articling Students. He was an unclassified employee on a fixed term contract, with his term of employment governed by the ALOC collective agreement. This is apparent also from the Secondment Agreement concluded between MOH, MAG and Mr. Speck. He was at all times a public servant, an employee of the Crown, under s. 2(2) 1 of the Act, being employed under Part III. [27] ALOC argues that MAG’s automatic termination of Mr. Speck’s employment because he was terminated by MOH has the effect of reading out the just cause provisions of the ALOC agreement, giving ALOC no ability to grieve or arbitrate that there was no just cause for the termination. ALOC recommends s. 54 of the Act which stipulates when a fixed term employee, like Mr. Speck, ceases to be a public servant: A public servant employed under this Part whose employment is for a fixed term ceases to be employed by the Crown when that period expires. [28] ALOC argues that s. 40 of the Act must be read in the context of ALOC’s right to grieve the termination of an employee, under the just cause provisions of the ALOC agreement. It submits that Mr. Speck’s articling position is separate from his position in MOH, under a separate collective agreement, with a separate hiring regime, and should be treated as entirely separate. Termination from FSCO must relate to conduct at FSCO, where Mr. Speck had no misconduct or performance issues. - 7 - [29] ALOC submits that what occurred at MOH may perhaps be akin to off-duty conduct in relation to his work at FSCO for MAG. It suggests that the proper interpretation of s.40 is that dismissal means the public servant ceases to have an employment relationship with respect to the terminated public service position (in the grievor’s case, with MOH), but not for other purposes. [30] Further, says ALOC, there are different just cause considerations under the ALOC agreement as compared to AMAPCEO’s, and Mr. Speck should be entitled to pursue them. As a fixed term employee of MAG, Mr. Speck had only 3½ months employment ahead in order to complete his articles. That, ALOC suggests, is a different consideration than will apply to his MOH grievance by AMAPCEO, where Mr. Speck will seek reinstatement as a permanent employee for the indefinite future. What matters is the contractual relationship between Mr. Speck and MAG at the time of his termination, a contractual relationship regulated under the collective agreement between ALOC and the Crown: Dunsmuir v. New Brunswick, 2008 SCC 9, at paras. 76-78, 81, 84, 106, 114, and 117. [31] In addition, there are different economic implications for Mr. Speck arising from his MAG termination, which distinguishes his just cause entitlement under the ALOC agreement, than what applies to his AMAPCEO grievance. Termination from his articling student position prohibits Mr. Speck from completing an important licensing requirement, which impacts his ability to pursue a professional career and earnings in the future. This, ALOC submits, is a very different consideration from the just cause provision of the AMAPCEO agreement. [32] ALOC seeks a declaration that just cause under the AMAPCEO agreement is not sufficient to establish just cause under the ALOC agreement, and that, because there was manifestly no misconduct by Mr. Speck during his employment with FSCO under the ALOC agreement, he should be reinstated to complete his articles. [33] In summary, ALOC says that MAG did not turn its mind to the just cause of terminating Mr. Speck’s employment when it did so. It had no just cause. It merely carried out what MOH required to be done. ALOC submits this cannot be just cause under its collective agreement. [34] AMAPCEO supports ALOC’s submissions. It points out that the Crown is required by - 8 - the Act to ensure the Crown’s compliance with its collective agreement obligations. Sections 152 and 153 read: Agreement in conflict with regulation, directive 152. Where a provision in a collective agreement conflicts with a provision of a regulation or a directive made under this Act, the provision in the collective agreement prevails over the provision of the regulation or directive. Implementation of collective agreements, etc. 153. Subject to section 10 of the Ontario Provincial Police Collective Bargaining Act, 2006, the minister responsible for the administration of this Act shall by order implement collective agreements made in accordance with the collective bargaining procedures applicable to public servants employed under Part III of this Act. [35] The Crown’s position is that there was no separate employment relationship between the grievor and the different departments of the Crown. He was always continuously employed from June 4, 2002 with the Crown. Employment with the Crown is exercised, for the Crown, by the Public Service Commission. The Commission acts, by delegated authority, through the deputy ministers of the different departments of government. At Mr. Speck’s request he exercised an opportunity to be temporarily assigned to MAG, which, like MOH, has delegated authority from the Crown, the employer throughout. He might be represented by a different bargaining agent in the different departments, but he had one employment throughout. His misconduct in one department was misconduct with respect to the single employer, irrespective of the department in which he worked. [36] The Crown argues that for Mr. Speck to have had distinct employment for MOH and for MAG, he would have had to sever – terminate – his employment with MOH and have been separately employed by MAG as a new employee. That never occurred. He moved from the one department of government to the other under a secondment agreement, retaining his original employment, pension, insured benefits and job security entitlements within MOH while exercising his opportunity for a temporary, fixed-term assignment. Because Mr. Speck never relinquished his employment with the Crown, there was an ongoing relationship, which, when it ended, was ended for all purposes, irrespective of the department of government in which Mr. Speck worked. The temporary assignment ended when the employment relationship ended. - 9 - [37] The Crown refers to Article 2.2 of the ALOC collective agreement. The first portion reads: Lawyers from outside the ALOC and OCAA bargaining units temporarily assigned to an ALOC or OCAA position for a period of more than 30 calendar days will on the 31st calendar day commence paying dues and be governed by the terms of the ALOC/OCAA collective agreement except that pensions, insured benefits, and job security entitlements, will continue to be governed by the rules applicable to the lawyer’s home position. [38] Article 2.2 continues and contains equivalent provisions in the opposite direction, so those with ALOC home positions who are temporarily assigned to a non-ALOC bargaining unit retain their ALOC pension, insured benefits and job security entitlements. [39] The collective agreement between AMAPCEO and the Crown has a directly equivalent provision to that quoted above, at Article 11.2. It reads: When an AMAPCEO bargaining unit member is temporarily assigned to position in another bargaining unit for a period of more than 30 calendar days, he or she will on the 31st calendar day commence paying dues and be governed by the terms of the collective agreement of the position to which he or she has been assigned except that pensions, insured benefits, and entitlements under Article 27, will continue to be governed by the rules applicable to the employee’s home position. [40] The entitlements under Article 27 are with respect to job security. [41] All of the parties accept that the job security provisions in Article 27 of the AMAPCEO collective agreement, like the job security provisions referred to in Article 2.2 of the ALOC collective agreement, are entirely distinct from the just cause provisions of both collective agreements. So seconded employees retain their job security against layoff entitlements of their “home” collective agreement, but the just cause provisions pertain to their actual employment. [42] Article 4.01 of the Terms and Conditions of Employment for Articling Students expressly incorporates Article 2 of the main ALOC collective agreement, making it applicable to articling students. [43] The Crown refers to various cases (among them Ontario Teachers’ Pension Plan Board - 10 - v. OPSEU (Tran Grievance), [1987] OLAA No. 746 (Davie), at paras 36-38; Alberta Union of Provincial Employees v. Alberta, 2010 ABQB 760) to support the proposition that the Law Society bylaws are not incorporated into the collective agreement and that I have no jurisdiction to interpret the Law Society bylaws. My task is restricted to interpreting the collective agreement. The Crown argues the Law Society rules and bylaws are not arbitrable by virtue of Article 3.05 of the Terms and Conditions of Employment for Articling Students. Decision [44] The Crown is the executive branch of the government of Ontario: Mai v. Mississauga (City), [1990] O.J. No. 291 (Ont. HCJ). It is indivisible as a legal entity: Canada (Attorney General) v. Central Cartage Co., [1987] FCJ No. 245, p.16. The departments of government are administrative divisions of a single employer. Mr. Speck was at all material times employed by the Crown. [45] He is subject to two collective agreements: the AMAPCEO agreement applies to him by virtue of his permanent employment, his “home” position; the ALOC agreement applies to him by virtue of his secondment, his fixed term contract, his articles of clerkship with MAG at FSCO. The just cause provisions of both collective agreements therefore apply to him. [46] So, to re-state the question of the parties: Assuming, for the purposes of the argument, that MOH had just cause to terminate the grievor’s employment, is that sufficient by itself to satisfy both the just cause provisions of the ALOC collective agreement and the requirements for articles of the Law Society of Upper Canada? [47] To deal with the last portion first, by reason of Article 3.05 of the Terms and Conditions of Employment for Articling Students, I have no jurisdiction to determine any difference, grievance, dispute or claim under Mr. Speck’s Articles of Clerkship which are expressly not incorporated into the collective agreement. Therefore I cannot arbitrate on any requirements for articles of the Law Society. - 11 - [48] Excluding the requirements for articles from the question posed, the question remains: “Assuming, for the purposes of the argument, that MOH had just cause to terminate the grievor’s employment, is that sufficient by itself to satisfy the just cause provisions of the ALOC collective agreement.” [49] The answer to this question is, yes, as the Crown argues. Mr. Speck’s apparently good work and conduct while articled may have a bearing on the circumstances that will be relevant to determine whether MOH had just cause to terminate him on February 3, 2014. But that does not give a distinct entitlement under the ALOC collective agreement. [50] I reject the suggestion that Mr. Speck’s conduct at MOH is akin to off-duty conduct with respect to his employment at MAG. MOH and MAG are sections of a single employer. His conduct in one section is directly relevant and germane to his conduct in the other. That is why, under s. 40 of the Act, if there is just cause to dismiss a public servant in any section, in any ministry, the individual is dismissed from the Crown. [51] Accordingly, on the assumption of just cause for the termination at MOH, that is sufficient to satisfy the just cause provisions of the ALOC collective agreement. Dated at Toronto, Ontario this 19th day of November 2014 Christopher Albertyn, Vice-Chair