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HomeMy WebLinkAbout1992-3166.Muir.94-01-12 ,/ Y " , ( ( I \,'~ ;I..' :' ~~~~'ft~ _ ONTARIO EMPLOYES DE LA COURONNE ~ ..., ..". '" CROWN EMPLOYEES DE L'ONTARIO " . . ~ C;, ~_ ~ .,' S. \,'l.'H ~ ~ ' , 'J. -'-;,--' ," GRIEVANCE COMMISSION DE , 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO, M5G-1Z8 TELEPHONE/TELEPHONE (4,16) 326-1388 180" RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPIE (416) 326-1396 I 3166/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Muir) Grievor - and - The Crown in Right of ontario (Ministry of Labour) Employer BEFORE: O. Gray vice-Chairperson s. Urbain Member M O'Toole Member FOR THE J. Paul UNION Grievance Officer ontario Public service Employees Union FOR THE B. Doherty EMPLOYER Employee Relations Officer Management Board Secretariat HEARIN,G september 9, 1993 December 7, 1993 /" ~ AWARD The gnevor was appomted to the staff of the Employment Practices Branch of the MInIstry of Labour effective December 30, 1991 On December 31, 1992 she receIved a letter from the acting Deputy MImster purporting to release her from employment In accordance Wlth subsection 22(5) of the Publw SerVLce Act effective December 28, 1992 She gneved. When the arbItratLOn oftms gnevance came on for heanng on September 9, 1993, the parties agreed that we should first determme whether the gnevor had been released pursuant to subsection 22(5) of the Publtc SerVLce Act, haVing regard to the ttmtng of the employer's communIcations Wlth the gnevor After heanng the parties' eVidence and argument and deliberatmg bnefly on that pomt, we ruled orally that the gnevor had not been released m accordance Wlth subsectlOn 22(5) of the Publte ServtCe Act We undertook to give wntten reasons for thatruhng at a later date. The parties agreed to adjourn the heanng 'of remamm~ ISsues to a senes of future dates. When the heanng resumed on December 7, 1993, the parties adVised us that they had reached a settlement, wluch they Wished mcorporated mto an order of thIS Board. TIns Award sets out our reasons for the rulmg of September 7, 1993, and our order giVing effect to the parties' subsequent settlement. The Preliminary Issue In November 1992, Paul Evans, the actmg manager of the gnevor's unIt, approved her takIng her vacation from December 17, 1992 to January 4, 1993, InclUSIVe On ( ~ -2- December 16, 1992, moments before the gnevor was to leave on vacatIOn, Mr Evans handed her the folloWing note JudIth, You will recall that during our meetmg on December 10 1992 I dIscussed with you the possibihtyof an extension of your probationary period of employment. As I advised you, the weekly file reVIew sessions followmg our November meetmg wIth John Williamson dId not show any significant improvement in your performance, which I had indicated would be required during the remainmg six weeks of your probatIOn. Mr William soon [SIC] expressed the view that no extension to the probationary period was possible. He dId, however, mdicate that he would seek adVIce on the issue and provide me WIth a definIte answer ~ My telephone calls to John Wilhamson yesterday afternoon and today have not been returned. As a result, I have receIved no response to my proposal and must assume that it is being rejected. As you are scheduled to be on vacatIOn startmg tomorrow, any deadhne relating to a deciSIon appomting you to permanent staff will pass during your vacation. I must confirm to you that it is unlikely that I will recommend your appointment to permanent Mmistry staff, whIch means that a deCISIon to release would follow You should expect to meet with me upon your return from vacatIOn on January 5, to finalize this matter You may WIsh to have a representatIve of your union present for - any such meeting. On December 18, 1992, Mr Evans secured the actmg Deputy MinIster's SIgnature on a letter addressed to the gnevor The letter smd this. I have recently been advised of the ongomg concerns of your manager regardmg your ability to meet the requirements of your position as a CollectIOns and Legal Action officer in the Employment Practices Branch, Collections Umt. Your manager has reported that he IS not prepared to recommend your permanent appomtment to the classuied servIce. As you have been advised, a newly appomted pubhc servant must meet the full duty requirements of the position within the first year of employment. Smce you have failed to meet the requirements of your positIOn, I am notuying you of your release from employment with the MinIStry of Labour m accordance WIth Section 22(5) of the Public ServIce Act. -rJl -3- You are hereby released effective December 28, 1992. From today, you are not required to report to work. In lIeu of notice, you will receive two weeks' pay in accordance wIth Section 57 of the Employment Standards Act. I wIsh you the best In your future endeavours. Mr Evans testIfied that he thought that thIS letter was sent by regIstered mail on December 18, 1992 He dId not mail It hImself, however The person who dId that dId not testily The gnevor received the letter by regIstered mail III early January 1993, m an envelope post-marked December 24, 1992 That post-mark IS the best eVldence before us of when the letter was mailed. December 24, 1992 was a Thursday It was also Chnstmas eve. There was no reasonable prospect that a letter tendered to the post office ~m that date for dehvery by regI.stered mail would reach the gnevor before the end of her probatIOnary year The gnevor testrfied that she waS at her home m Toronto until December 21, 1992, when she left for Flonda. There IS no eVldence of any attempt to contact her before then. The grievor returned home on December 31, 1992 Some tIme that day a couner arnved at her home With a copy of the letter of December 18, 1992 The bill of ladIng which accompanIed the letter appears to IndIcate that tlus copy of the letter was put m the hands of the couner on December 30, 1992 SectIon 22(5) of the Publ~c Sermce Act, whIch proVldes that 22(5) A deputy mInIster may release from employment any publIc servant durIng the first year of his employment for failure to meet the requirements of hIS position. The subsectIon speaks of a "release from employment" "dunng the first year of employment." It does not specIfy how the deputy mInIster IS to go about releaSIng an employee -4- A "release" IS a termInatIOn of employment. Employment IS a contractual relatIOnshIp whIch may be brought to an end In a vanety of ways ThIS IS not the ) occaSIOn for an extended dIscourse on that subject. Suffice It to say that unless It proVIdes otherwIse, a contract of employment of mdefimte duratIOn will not be brought to an end by the mere desll'e of the employer to end It rl'the employee has no notlce of that desire. The employer dId not challenge the proposItlon that the employee must be given notlce of it In order for a decisIOn to release to be effectlve It dId not suggest that Mr Evan's memo of December 16,1992 had gIven the gnevor the required notlce, and It IS clear that It dId not. The employer's argument was that notIce was given on December 18, 1992, when It clalmed the actlng Deputy MinIster's letter had been mailed. In the altemauve, It argued that notlce must be treated as haVIng been glven a reasonable tIme after the letter was mailed. In support of tlns, the employer's representative argued that the Government of Oiltano should not be "penalIZed because the Post Office IS slow", and expressed a concern that a requirement that the notIce be receIved In order to be effective would be problematic rl' an employee went Into hIding to aVOId notice. I The umon's representatlve argued that the employer's pOSItIOn that the notlce was effectIve when mailed IS mconsIstent With the result In WaLnnght et al., 0717/88 (l\1cCamus) There, the Crown successfully argued that an apphcatlon to the Gnevance Settlement Board for the heanng of a gnevance IS not made until receIved by the Board. an apphcatIOn mailed before but receIved after the tlme hmIt specIfied In the collectlve agreement was ruled untimely The union's representative also referred to the awards of arbItrator O'Shea In Re Holmes Foundry Ltd. and Umted Automobde Workers, Local 456 (1974) 7 L.A.C (2d) -5- 276 and Re Madame Van~r Ch~ldren s Serv~ces and Ontano Publw Sermce Employees Unwn (unreported decIsIon dated February 13, 1984) In iboth cases the Issue was whether the gnevor had completed hIS or her probationary penod before beIng dIscharged. In Holmes Foundry, supra, the gnevor had completed worlang the last day of hIS probatLOnary penod when he was told he was suspended as a result of somethIng the employer learned had taken place that day He was later dIscharged effective that day He gneved. The employer obJected that the gnevance was In arbItrable because the gnevor was still a probationary employee. ArbItrator O'Shea held that the dIscharge could not be effectIve anyearher than the pOInt In time when the gnevor was told he was bemg suspended. He then observed that In the mstant case the company has the onus of proving that the dIscharge took place prior to the completIon of GO days worked by the grlevor If the company had informed the grievor that he was discharged prior to the completion of his work on May 17th, hIS discharge would have been prIor to the completIOn of this 60th workmg day and would therefore not be subject to the grievance procedure. Although it is true that it is the company's right to decide whether an employee is satisfactory, this decision must be taken and acted upon prior to the completion of the 60th workIng day in order to prevent the employee from havmg the rIght to grieve hIS discharge pursu~nt to art. 8.(2)(c) of the collectIve agreement. In Vamer Chddrens SerVtces, supra, the employer had notIfied the gnevor that hIS \ employment would be tennmated at the end of the last day of his probatIOnary penod. The relevant prOVISIOns of the collective agreement prOVIded that an employee tennmated "dunng his probationary penod" would not acqUire senIOnty and could not grIeve termInation. The maJority award held that for an employee to be termInated "dunng lus probabonary penod" Ius work would have to be dIscontInued before the end of the probabon penod. an employee ternunated at the end of the penod had the nght to gneve the termInatIOn. .. -6- N eIther of these awards of arbItrator O'Shea had to address the preCIse proposIbons In ISSU~ here that nobce of termmatIOn IS effecbve eIther when maIled, or WlthIn a reasonable bme thereafter The employer's representative argued that there IS a common law rule that nobce IS effective when maIled. He offered no authonty for that proposIbon, however, and we are not aware of any As a matter of general pnncIple, a nobce sent to someone has legal effect only when It comes to hIS or her attentIOn, m the absence of an apphcable statutory or contractual rule to some other effect. It was not suggested that there IS any apphcable statutory or contractual rule. 1\.8 for the argument about employees' gOIng Into huhng to aVOId recelVlng trmely nobce of release, It IS hard to Imagme that an employee's gOIng mto ludmg for that reason would not Itself proVlde cause for the very result It sought to aVOId. In any event, that IS a problem best addressed If and when It ever anses. If anyone was hldmg here, It was not the grlevor N obce to the gnevor was not effecbve when maIled. In our Vlew, It was only \ effecbve when receIved. The result here would not have been dIfferent, however, If the rule were that mailed nobce was effecbve Wlthln a reasonable brne after mailing A reasonable tIme would be the tune Wltlun wluch It wouid be reasonable to expect that the nonce would come to the attenbon of an addressee who was not aVOIdIng It. As we have already observed, there was no reasonable prospect that a letter tendered to the post office on thursday, December 24, 1992 for dehvery by reglstered mail would reach the gnevor before Wednesday, Decembe'l" 30,1992, the anmversary of her first day of employment. . Because the gnevor was not glven nobce dunng the first year of her employment of the actIng Deputy Mimster's deCISIon to release her, the release was not effected I I ~, '. -7- WIthm the tune contemplated by subsectLOn 22(5) of the Publ~c Serv~ce Act and, so, she was not released In accordance WIth that subsectIOn J L The Settlement At the heanng held on December 7, 1993 we were adVIsed that everyone In the umt ill winch the gnevor would have continued to work had she not been released has Sillce been declared surplus. The partles told us they had agreed that she be reInstated and made, whole for any loss flOWIng from her termmatIOn In particular, the parties have agreed that 1) the employer shall remstate the gnevor to employee status effective as of the date her employment was termmated, so that her senIOnty and benefits entitlement will be what they would have been had her employment not been termInated, 2) the employer shall compensate the gnevor for any loss she has suffered as a result of her termmatIOn, such compensation to mclude Interest; and, 3) the employer shill place the gnevor on the surplus hst referred to In ArtIcle I 24 of the collective agreement, effectIve December 8, 1993 ( The partles agree that the calculatIOn of compensatIOn to whIch the gnevor IS entitled must take mto account the obhgatIOn to mItigate her loss whIch the gnevor bore throughout the penod for whIch compensatIOn IS to be p31d. They also agree that thIS ) panel shall be seIsed WIth any Issue ansmg out of the ImplementatIOn of theIr settlement, Incluchng the assessment of the amount of compensatIOn to be paId. ~~ ~' - ~ -8- We order that the partIes abIde by the obhgatlOns they have agreed to assume, and we remaIn seIsed In accordance With that agreement. ThIs matter remams scheduled for heanng on February 28, 1994 Any unresolved Issues will be dealt With at that tIme, unless the parties otherWIse agree or the RegIStrar otherWise dIrects. In that regard, the parties are to adVIse the RegIstrar by January 31, 1994 whether they still reqUire the February 28, 1994 hearing date / Dated at Toronto thIS 12th day of January, 1994. J ~ V~~ S UrbaIn, Member , 7rl1 ()~~p- M. O'Toole, Member .