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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
,BETWEEN
OPSEU (Grinius)
GrieVor
- and -
The Crown in Right of Ontario
(Ministry of' citizenship)
· ' Employer
BEFORE: B. Fisher Vice-Chairperson
G. Majesky Member
D. Montrose Member
FOR THE D. Eady
GRIEVOR Counsel
Gowling,. Strathy & Henderson
Barristers & Solicitors
FOR THE J. Knight
EMPLOYER Counsel
Fraser & Beatty
Barristers & Solicitors
HEARING April 23, 24, 1991
May 6, 7, 1991
June 24, 1991
September 4, 5,. 6, 1991
1
INTERIM DECISION #1
This is a discharge grievance which will be handled in a number of steps. The first step,
to be dealt with in this decision, will determine whether or not there was a culminating incident
which entitled the Employer to review the Grievor's discipiine record.
There are two potential culminating incidents. If either of them is found to be valid, then
we will proceed to the next step, which is to examine a previous settlement agreement to see what
time period the Board is to look at in determining the content of the Grievor's discipline record.
No matter what the outcome of the first step, we will also be looking at the Grievor's contention
that his most recent performance reviews are unfair and inaccurate.
BACKGROUND:
The Grievor worked for the Native Community Branch of The Ministry of Citizenship in
Sudbury. He was classified as an industrfal Development Officer and his job title was Business
Development Consultant. His job consisted largely of advising and assisting client groups, namely
aboriginal groups and development corporations, in matters of economic development. A key part
of his. role was to work with aboriginal groups in deal'ing with the various grant program'mes
administered by the Native Community Branch.
In late August 1989 the Ministry discussed with representatives of the Wau-Be-Tek
Development Group (hereinafter called WBT) the idea of utilizing funds from the Northern Native
Small Business Programme to set up.a loan and investment programme to be run by WBT. The
Ministry also agreed to fund the hiring of a Special Advisor for Loans and Investments to be hired
by WBT to assist in setting up the programme. The Ministry also then suggested that the
individual who couid fill this position was the Grievor.
Thereafter discussions commenced between the Grievor, the Ministry and WBT regarding
the terms and conditions under which the Grievor would go over to WBT. The net result of these
discussions was that the Grievor was granted a leave of absence without pay from September 5,
1989 to August 31, 1990 to allow him to work for WBT. The starting date was later moved up due
to problems with confirming the funding grant to WBT. At the same time WBT obtained a funding
grant from the Ministry in which was supposed to cover 100% of the cost of employing the Grievor.
The Grievor had meetings with bot. h WBT and the Ministry from which he obtained the
understanding that he was not going to suffer financially at all by accepting the leave of absence
and working with WBT.
The Grievor actually commenced his leave of absence and employment with WBT in October
1989. His employment with WBT was terminated on April 27, 1990. He was taken off his leave
of'absence on April 30, 1990 and reinstated with the Ministry. On the same day the Ministry put
him on ·suspension· with pay pending investigation. He was terminated on June 1,5, 1990.
The termination letter sets out in some considerable detail the two incidents upon which
the Ministry is relying:
Before advising you of my decision in respect of your employment
status, t note that these points from the letters of Mr. SIee, dated
May 30, 1990 and June 7, 199Q:
1.. You do not acknowledge your behaviourfat problems; indeed,
it is apparently your view that [t has always been your
practice to deal with clients, supervisory staff and co-
workers in a co-operative, courteous, and business-like
manner. ..
I must advise you that my review of your employment history with
the Ministry of Citizenship has led me to conclude that you have not
dealt with clients, supervisory staff and co-workers at the standard
of performance and conduct which we require. I am also not
satisfied that your performance during the course of your
secondment with Wau-Be-Tek, a principal client group of the Native
Community branch, was qualitatively different or better than your
unsatisfactory performance with the Ministry prior to the
secondment. I must therefore, reject as insufficient your promise to
continue to deal with clients, supervisory staff and co-workers in the
same manner as in the past.
2. You disclose a letter to Chief Assinewai which We consider
to reveal a conflict of interest.
Regulation 881 under the Public Service Act, section 20, deals with
conflict of interest, and indicates that contravention or disregard for
this provision may be considered as' cause for dismissal.
Having very carefully considered the facts in your case, I have come
to the conclusion that there is no viabie employment relationship to
re-establish with the Ministry. i have no reason to believe that you
accept that you have displayed inappropriate work behaviour in the
past, and I have no reason to expect that problems will not recur;
in this regard, I consider that your pedormance at Wau-Be-Tek is
both relevant to and supportive of my conclusion. My overall view
is that clients, supervisory, staff and co-workers will refuse or at
least be reluctant to work with you. In view of the size of the office
and the nature of the work of the Native Community Branch, I do not
consider your reinstatement to your former p~sition to be an
acceptable result.
,~s a separate matter, and especially in light of the letfer to' Chief
Assinewai of May 7, 1990, I am fig satisfied that you will in future
be able, in appearance or fact, to avoid a conflict between your
personal interest and the interests of the Ministry. I am also
concerned about the unsatisfactory nature of your secondment with
Wau-Se-Tek, reports about which would iii(ely serioUslY impair your
ability to pedorm your former or like duties in dealing with Native
Community organizations.
I am satisfied on either of the above two grounds that your
dismissal from the Public Service is appropriate.
WBT RELATIONSHIP
Extensive evidence was heard on this issue both from Ms. Dawn Madahbee, the General ..
Manager of WBT and the Griever. In light of our conclusions on this particular issue it is not
necessary to set out in detail the facts surrounding the various reasons the Griever's employment
with WBT was terminated. Suffice it to say that the Griever's employment was terminated for the
following reasons:
1. First and foremost the Griever refused to accept the decision of the Board of Directors of
WBT that he was not to he compensated for his travel time and commuting expenses
incurred by him in commuting from his home in Sudbury to WBT's offices on Manitoulin
Island. This debate over the Griever's entitlement to such reimbursement took place
throughout his employment with WBT and culminated with the Griever sending WBT an
"invoice" a few days after the Board clearly told him they had no intention of paying his
commuting expenses. Although the Griever was certainly forceful in asserting his position,
it should be noted that this particular item was not clearly addressed prior to the Griever's
hiring, rather the Griever was left with the distinct impression from discussions with the
Ministry prior to the leave of absence that he would suffer no economic ~oss by accepting
· the WBT position. There is at least an arguable case that if the Grievor had been assigned
by the Ministry to work temporarily at the WBT' offices in the course of his regular
employment duties with the Ministry, the collective agreement would have permitted the
Grievor to receive both credit for the time spent travelling and the kiiometre charges. We
therefore find that the Grievor's belief that he should have been entitled to these expenses
from WBT to be a reasonable one based on the Grievor's legitimate understanding that his
terms of employment with WBT were to be identical to tlmse with the Ministry. The critical
difference however was that the Grievor had no right to grieve any difference he may have
with WBT, therefore, the Grievor was left to his own devices to try to resolve the conflict
with WBT. WBT on the other hand had no intention from moving from their initial position
and did not appreciate the-forceful and aggressive techniques used by the Grievor in
asserting what he believed to be his correct legal position.
2. Largely as a result' of this conflict over the commuting expenses, the working relationship
between the Grievor and Ms. Madahbee deteriorated. The Grievor admitted that he was
quite uncommunicative in the later portion of his employment with WBT, although he said
" at the hearing that this resulted largely from his being in pain at the time as a result of an
accident.
3. It appears that the Grievor performed cedain tasks in the later part of his employment
which Ms. Nladahbee was not aware of nor were they apparently authorized by the Board
of Directors of WBT. WBT aiso accused him of spending too much time on "personal"
matters, that is, on his campaign to seek payment of his commuting expenses.
4. The Grievor had an encounter with a client of WBT in which he was loud and intimidating.
In so far as the Grievor was on an approved leave of absence from the Ministry throughout
his employment with WBT, the correct standard of review of his conduct is an off-duty one. We
recognize that in determining the appropriate standard of off-duty conduct, this is a somewhat
unusual situation in that the Grievor was working for an important client of the Ministry and that
upon his return to work with the Ministry, he would be expected to continue to deal with WBT.
However the Ministry never' told the Grievor that his performance at WBT would be viewed in any
special way, nor did the Ministry attempt to assess his performance at WBT on an ongoing basis
by way of periodic performance reviews or consultations with WBT. Therefore although we find
that the proper level of review is that of off-duty conduct, we find that in this particular fact
situation, due to the close relationship between WBT and the Ministry, the Griever is to be held
to a stricter test staff than the normal off-duty conduct test, which is elaborated below.
The Union contends that the Griever's conduct while at WST is irrelevant to the Ministry
as the Griever was not "employed" by the Ministry at the relevant time thus it could not be off-duty
conduct of an employee of the Ministry. Although there is some arbitral authority for the
proposition that an employer may rely on off-duty conduct which occurred prior to the start .of
employment (see Madame Vanier Children's Services & OPSEU 5. L.A.C. (4th) 225 Verity) it is not
necessary for us to determine this case upon that principle. In our case, the Griever, although not
an active employee of the Ministry was on an authorized leave of absence and as such had certain
rights which connected him with the Ministry. The most notable of these rights was the right to
.-... be reempfoyed with the Ministry at the end of his leave. Cedainly where an employer is obligated
to reemploy a person in the future, it is entitled to expect some level of behaviour from that person
as the person's actions in the present may well affect the employer's position in the future when
they are compelled to reemploy them. We therefore find that even though the Griever was not an
emPloyee of the Ministry at the time of the WBT incidents, there was a sufficiently close
connection between the Griever and the Ministry to impose a standard of off-duty conduct upon
the Griever.
The level of scrutiny under which off-duty conduct is able to be relied upon by an employer
seeking to impose discipline is well set out in this quotation from the Madame Vanier case at
pages 233 and 234;
"Two frequently quoted arbitral precedents set out the traditional
tests required to determine off-duty conduct cases, in Re U.A.W.
Loc. 195 and Huron Steel Products Co. Ltd. (1964), 15 LA.C. 288
(Revi[le), the following rationale is given at.p.289:
It has been held in may arbitration cases that under normal
circumstances an employer is only properly concerned with
an employee's due and faithful observance of his duties on
the job. However, no hard and fast rule can be laid down,
and in each case the determination of three questions of fact
will determine the issue. These are:
(1) Was the employee's conduct sufficiently injurious to
the interest of the employer?
(2)Did the employee act in a manner incompatible with
the due and faithful discharge of his duty?
(3) Did the employee do anything prejudicial or likely to
he prejudicial to the reputation of the employer?...
6
If one or more of the above questions must be answered in
the affirmative on all the evidence, then the company is
properly concerned with the employee's conduct regardless
of whether it occurred on or off the company property or in
or out of working hours, and depending on the gravity of that
conduct, the company will be justified in taking appropriate
disciplinary action.
In Re Millhaven Fibres Ltd., Millhaven Works and .Oil, Chemical &
Atomic Workers Int'l Union, Loc. 9-670 (~967), I(A) Union-
Management Arbitration Cases, 328 (Anderson), the followlno tests
are set forth:
If the discharge is to be sustained on the basis of a
justifiable reason arising out of conduct away from the pface
of work, there is an onus on the company to show that:-
(1) the conduct of the grievor harms the Company's
reputation or product,
(2) the grievor's behaviour renders the employee unable
to perform his duties satisfactorily,
(3) the Drievor's behaviour leads to refusal, reluctance
or inability of the other employees to work with him,
(4) the Drievor has been guilty of a serious breach of the
Crimina/Code and thus rendering his condLfct injurious to the
general reputation of the company and its employees,
(5) places difficulty in the way of the Company properly
carrying out its function of efficiently managing its Works.
and efficiently directing its working forces.
The MiIIhaven Fibres case was quoted in Re Air Canada and I.A.M.,
Lodge 148 (1973), 5 LA.C. (2d) 7 (Andrews). In commenting upon
the Millhaven Fibres case, arbitrator Andrews stated [at p.. 8] in the
Air Canada case: "It is my interpretation that it is not necessary, for
a company to show that all five of the criteria in the Millhaven
Fibres case have followed on the employee's conduct; rather, any
one of the consequences named may warrant discipline."
First Of all, dealing with the questions in the Millhaven Fibres case:
(1) Did the Ministry show that the conduct of the Qrievor harmed the Ministrv's reputation?
The Employer in this case for the purpose of determining damage to reputation is the Native
Community Branch. The clients of the Native Community.Branch are the aboriginal groups like
WBT. The Ministry presented absolutely no evidence to show that either WBT or any other client
group would have any difficulty working with the Grievor if he had been reinstated to his Ministry
position after his departure from WBT. In fact the Grievor produced both oral and documentary
evidence that various client groups wanted the MinistryrtO reconsider their decision to terminate
the Grievor and urged the Ministry to reinstate the Grievor in his position as an Industrial
Development Officer 2. This leads us to the clear conclusion that the answer to the question
posted, is "No".
(2) Did the Grievor's behaviour render the Grievor unable to perform his duties satisfactorily?
Once his teave of absence was terminated, the Grievor was not permitted to perform his
Ministry duties, thus there is no evidence upon which we could conciude that the Grievor would
have been unable to pedorm his duties satisfactorily.
(3) Did the Grievor's duties lead to. the refusal, reluctance or inability of the other Ministry
employees to work with him?
No evidence of the Grievor's co-workers was presented which would allow us to come to
such a conci[~ion.
(4)Has the Grievor been quilty of a serious breach of the Criminal Code?
No.
(5) Did the Grievor's actions, place difficulty in the way in which the Ministry l~roperly carries
out its function of efficiently managing its activities and efficientlY' directinq.its work force?
No evidence was presented which would make it possibte to answer this question in the
affirmative.
As the questions posed in the Huron Steel case are largely repetitive of those set forth
above, we would reach the same conclusion in answering those questions.
No matter which test was appiied, it is clear that the Grievor's conduct while at WBT did
not constitute grounds for the Ministry imposing discipline upon the Grievor. It therefore flows
from this finding that the WBT matter cannot form the basis of a culminating incident.
CONFLICT OF INTEREST
While at WBT the Gr[evor worked closely with Chief Max Assinewai of the Shegulndah First
Nation, which is a member of WBT. This work specifically related to the planning and construction
of a CommUnity Centre. On May 7, 1990, which is after the Grievor's reinstatement to the Ministry
but while he was on suspension with pay pending investigation, the. Grievor wrote the following
letter to Chief Assinewai;
Kievas Grinius ....
President
Grinius & Associates Limited
84 Hyland Drive
Sudbury, Ontario
P3E IR6
CONFIDENTIAL
May 7, 1990
Chief Max Assinewai
Sheguindah First Nation
P.O. Box 101
Sheguindah, Ontario
POP IWO
Dear Chief. Assinewai,
I am writing, at this time, to advise that my contract with Waubetek Business Development
Corporation has been terminated. Consequently, access to support services provided by myself
on the development of Sheguindah First Nation Multipurpose Community Centre are no longer
available through Wauhetek.
Upon review of this situation and evaluation of the level of project development services to be
provided by Waubetek, you decide not to enter into a project development contract with Waubetek
and are looking for an alternative source of project development and management expertise, please
give me a cafi.
I am very concerned that your proposed community centre project not be negatively affected by
my recent departure from Waubetek. For this reason, my continued support services are
immediately available to the Sheguindah First Nation througll the consulting firm, Grinius &
Associates Limited.
I look forward !0 hearing from you to discuss your alternatives to successfully completing the
Shecjuindah First Nation - Multipurpose Community Centre.
Yours Truly,
K]evas H. Grinius
President
Section 20 of the Regulation 881 under the Public Service Act reads as follows:
20.-(1) A public servant shall not engage in any outside work or
business undertaking,
(a) that interferes with the pedormance of his duties as a public
servant;
(b) - in which he has an advantage derived from his employment
as a public servant,
(c) in which his work would otherwise constitute full time
.. employment for another person; or
(d) in a professional capacity that will, or is likely to, influence
or affect the carrying out of his duties as a public servant.
(2) WheneVer a public servant considers that he coutd be
involved in a conflict of interest in that he might derive personal
benefit from a matter which in the course of his duties as a public
servant he is in a position to influence, he shall disclose the
situation to his deputy minister, agency head or minister, as the
case may be, and shall abide by the advice given.· '
(3) Whenever a public servant considers that he could be in a
position of conflict with the interests of the Crown arising from any
of his outside activities, he shall disclose the situation to. his deputy
minister, agency head or minister, as the case may be, and shall
abide by the advice given.
(4) Contravention1 of any of the provisions of subsection (1) or
disregard of the' provisions of subsection (2) or (3) may be
considered as cause for dismissal. R.R.o. 1980, Reg. 881, s. 20.
The Unions' contention is' that first of all the Grievor was unclear as to his status on May
7, 1990 in so far as he was no longer working for WBT but was not at work for the Ministry.
However the Regulation speaks of applying to "public servants". The Grievor must have known that
he was on suspension with pay as of May 7, 1990, therefore he was a public servant. It does not
matter that he was unsure of his future status with the Ministry, it is enough to know that he was
a public servant on May 7, 1990, when he sent the letter.
· Next the Union contends that the Grievor was not "engaged in any outside work or business
10
Undertaking" but rather was only attempting to engage in outside work. He had not come to any
agreement with Chief Assinewai as of Ma'y 7, 1990, nor did he subsequently perform any work for
the Chief. Union counsel contends that it is no different from a public servant writing, a letter to
a prospective employer while' in the Ministry's employ, which undoubtedly is not a conflict of
interest itself.
However, this contention by the Union misses the point of the conflict of interest allegation.
The Grievor's job at the Ministry was in large part to process and recommend approval for grants
from native groups like the Sheguindah First Nation for projects like the community centre which
was the subject of the May 7, letter. Therefore Chief Assinewai, upon receiving such a letter,
could legitimately ask himself the following questions:
a) If I agree with the Grievor's consulting proposal, will it help me when the time comes for
the Grievor, as a civil servant, to decide whether or not this project is funded by the Ministry?
b) If I don't engage the Grievor as a private consultant will he use it against me when the
Grievor as a civil servant, considers this project for funding?
In other words the mere making of the offer by the Grievor raises the potential conflict of
· interest, or of the least, the appearance of a conflict of' interest.'
The Union submitted that although this. may well have been the thought process of Chief
Assinewai, we have no evidence on this point nor did any Ministry official testify as to the potential
harm to the employer of the Grievor's acts.. As such the Board should not draw conclusions
without a proper factual basis. In two similar cases presented to this Board, Van Der Linden
247/79 (Swinton) and ReQional Municipality of Hamilton Wentworth v. CUPE Local 167 18 L.A.C.
(2d) 47 (Kennedy)"there was some evidence as to the potential consequences of the Grievors
actions.
Although it would have been open to the Ministry to teed ·evidence as to the potential
adverse consequences o'f the Grievor's act, it would in effect be evidence as to that witnesses
opinion only and as such would probably have been of littie assistance to the Board. The Board
does not exist in a vacuum, its members are experienced in the ways of the world and as such
can draw their own conclusions as to the possible effects of one's actions or the existence of a
potentiaJ conflict of interest. The Board finds that it is obvious that when a civil servant who is
at least partially responsible for the disbursement of Government funds to a specific client makes
a consulting proposal along the lines of the May 7, letter to that same client, that is proper to inter
*-' 11
than a reasonable client would view the situation as, at least uncomfortable. In fact we do have
evidence from Ms. Madallbee that she found out about the May 7, letter from Chief, Assinewai, so
presumably he was concerned about-it enough to speak to someone about it.
Therefore it really doesn't matter whether or not Chief Assinewai actually felt that he was
being pressured, it is enough that this Board finds that a reasonable man or woman who was in
the Chief's position, would reasonably feel pressured. We so find.
This is very similar to the situation in an unreported decision of E. Jolliffe, Q.C. involving
a Federal civil servant entitled McKennedy and Treasury Board (May 31,'1973, File No. 166-2-674)
which is summarized in the Hamilton Wentworth case at page 54.
In that case, the arbitrator considered the situation of a senior
federal public servant who had authority to approve grants of up to
$500,000 in the Department of Regional Economic Expansion.
During the period when a proposed grant to a company was under
consideration he purchased shares in the company, accepted
benefits from an officer of the company, and entered into
· negotiations.for the presidency of an associated company. In holding
that the.employee could ha'~e legitimately been discharged for any
one of these acts, the adjudicator made the following findings with
respect of conflict of interest in the public service:
1. Public servants must not seek, for private gain, to make use
--:' of information not available to the general public to which
they have access by reason of their official duties.
2. A conflict of interest occurs when the public interest in
proper administration of a government office and a
government official's interest in his private economic affairs
clash or appear to clash; and a finding of conflict of interest
does not depend on wilful wrongdoing by the official or on
the issue of whether the official's judgment has in fact been
affected. .~
3. A government official should not put himself in a position
where his judgment could, even unconsciously, be affected
by friendship.
Of note here is the point that Mr. Mcl(ennedy was in breach of the conflict rules simply
because he was engaged in determining grants on behalf of his employer while at the 'Same time
12
he was negotiating for a job position with a possible recipient of the grant.
Returning now to the Public Service Act Regulations, we find that the Griever was
"engaging in a business~unde,~taking" by simply soliciting the business of Chief Assinewai. These
· words are very broad in their scope and do not require the compJetion or even negotiation of a
contract in order to constitute a "business undertaking". To ~se the terms of the business world,
the Griever had initiated and executad his marketing plaa in sending the May 7th, leffer and as
such hod engaged i~ a b~siness undertaking.
Secondly, the Griever's activities could i~tedere with the pedormance of his duties as a
p~btic secant (section 20(1 )(c)) in that a Minist~ client, namely Chief Assinewai, co~ld reasonably
betieve that the Griever's recommendation as to grants ~o his group wouid be affected by his
response to the May 7th, le~er.
Similarly, it is reasonable to conclude that the Griever's activities in soliciting this business
would [ikel~ i~fluence the Griever's abi~[~ to car~ out his duties as a publi~ secant, especially
if the Griever were to be called upon as pubJ~c secant to recommend that gra~ts be paid to Chief
Assinewai's group. This would make the Griever in violation of Section 2~(1)(d).
The Griever stated iff a submission by his Uni~fl representative cohtained in a rafter, dated
'June 8, 1990, that'"'Had Chief Assinewai sought'to retain Mr~ Grinius' so.ices through Grinius &
Associates Limited, Mr. Grinius would have sought Minist~ permission to conct~de the
arrangement."
In other words the Griever is saying that he intended to compiy with Section 20(2) and (3)
of the Regulation. However the time to apply for such permission was before the letter was even
sent, in so tar as the conflict of interest Was present as soon as Chief Assinewai received the
letter for it is then that the pressure would be felt by the Chief to either accept or reject the
proposal.
Having said that the Griever was in violation of the Conflict of Interest rules, we do not feel
that he truly understood the full impedance and seriousness of his actions. We also believe that
to some degree the Griever was motivated for altruistic reasons in that he honestly believed the
Chief desperately needed his specific skills to complete the project. For those reasons we would
not uphold a discharge for this specific offence only, however, as it. is an offence warranting some
~iscfpline,. it is sufficient to form the basis of a culminating incident which allowed the Employer
to rely upon the past disciplinaq record.
The arbitration shall continue on dates to be set by the Registrar.
~hi 6th day of March lqq2
DATED: at Toronto, /~ s , .
BA[:IRY B. FISHER
/
"Z part~ally dissent" (patial dissent to follow)
G. MAJESKY- MEMBER
D. MONTROSE - MEMBER