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HomeMy WebLinkAbout1994-2216EDWARDS96_01_09 ONTARIO fMPl OYES DE LA COURONNE CROWN fMPLOYEES DE L'ONTARIO 11111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100 TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2216/94 OPSEU # 95B199 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Edwards) Grievor - and - The Crown in Right of ontario (Ministry of Heatlh) Employer BEFORE H Finley Vice-Chairperson FOR THE J Paul GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE B Loewen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING August 23, 1995 GSB 2216/94 DECISION Sandra Edwards, a CommumcatIOns Officer In the Oshawa Central Ambulance CommUniCatIOn Centre (Oshawa C ACe) located m the Oshawa General HospItal gneves that the Employer IS unjustly dISClplmIng her and asks that the Emplover wIthdraw ItS request that she dIvest herself of a conflIct of Interest. It IS her pOSItIOn that she had and has no conflIct of mterest. The Umon asks that she be placed back In her home posltlon as a CommumcatIOns Officer, and that she be compensated for any loss of benefit or compensatIOn resultmg from her Job transfers. The partIes have asked that I remam seIzed, If the outcome IS favourable to the Umon, and have agreed that they wIll attempt work out any benefits or compensatIOn whIch may be ordered. Ms Edwards testIfied that she IS marrIed WIth chIldren. She IS the sole breadWInner In the famIly and has an annual salary of approxImately $42 000 In 1991 her husband, who had been unemployed for some tlme went mto bUSIness WIth a partner to proVIde speCIal events emergency medIcal ambulance coverage under the name of Emergency MedIcal Consultants There were some start-up costs to the busmess and Ms. Edwards IS a guarantor on the loan, although her husband has assumed responsibIlIty for payments on the loan. Ms Edwards had not obtamed legal adVIce with respect to her legal status VIs-a-VIS her husband's bUSiness or her actual or potentIal Interest In It. In June, 1994, the company expanded ItS serVIce to mclude the transportatIOn of stable non-emergenc) patIents. The Compan) has yet to show a profit. Mr Edwards mtroduced the company's servIces to Darryl Culley, the OperatIOns Manager of Oshawa C A.C C and Ms Edward s superVIsor bv the follOWing letter whIch the Gnevor hand- delIvered to Mr Culley 1 EMERGENCY MEDICAL CONSULTANTS 2 FaIrbaIrn Crt. BOWMANYILLE, ONTARIO LIC 4K9 I 90')-432-3686 or 1-905-623 7780 Euucal ion Service Mr Darryl Culley Operations Manager CACC Oshawa 24 Alma Street, OSHA W A, Ontario LlG 289 Dear Mr Culley, Please allow me to introduce two of our services to you and take a brief moment to explain the dutIes that we provide. Enclosed, YOU will find simple brochures describing our Special Events Emergency Medical coverage and Non-Emergency Medical TransportatIOn services. For three years now our special events emergency medIcal coverage has prided itself in the flexibility to customize emergency medical services, meeting the needs and insurance requirements ofthe individuals or groups requiring professional emergenc) medical support for their sporting or special event needs. We are NOT a fly by night first aid group or a volunteer service We have approved Type II and Type IV ambulance style vehicles, professionally staffed and supplJed. We have now included in our Policies & Procedures Manual, that upon arrival at an event stand-by the crew shall contact the appropriate C.A.C C and advise their dispatchers of the event type, times, location & the Unit and cellular phone numbers. I would appreciate your feed- back if thiS IS an applJcable course. On June 1 we began a limited practical alternative to the use of regular emergency ambulances in the transportation of your stable, non-emergency patients. We have been in contact with several area hospitals and discussed with their administrative staff, our service, its restrictions, abilities and how we can be a constructive aid. We have made it clear that we are not an ambulance service, nor do we claim to be. We are a private, supportive utility for stable patients and practical surrogate, NOT available for urgent transport. We also hope that we wIll be of some aid to you and would appreciate any advise [sic] that you may care to offer You ma, also be assured, that in either role ONLY certified Emergency Medical Attendants wIll serVIce calls We can also provide Registered Nurses when requested. Ihou have an) questions or concerns, please, give me a call at 1 905-432-3686 Thank-you for your time and consIderation. Respectfull) [Signed] Donald Edwards, EMeA, EMf-P EMS OperatiOns Manager end. 2 It \\a~ this letter that brought forth the conIlIct-of-lIltercst concern on the part of the l::mployer The eventual result of this concern was the followlIlg lettcr from the Deputy Ml11lster to the Gnevor dated November 18, 1994 Mrs. Sandra Edwards Emergency Medical Dispatcher Oshawa CACC Oshawa General Hospital 24 Alma Street Oshawa, Ontario LIG 289 Dear Mrs. Edwards. Some time ago Mr Darryl Culley OperatIOns Manager for the MlssissaugalOshawa C.A C C was informed by your husband that your husband had become the Operations Manager of a service providing 'a limited practical alternative to the use of regular emergency ambulances in the transportation of your stable, non-emergency patients" In a memorandum to you, dated July 14, 1994, Mr Culle} indicated that your husband s business could be construed as a potential contlict of mterest with your position as a dispatcher at the Oshawa C.A.C C " Accordingly, he requested that you follow Mmistry Corporate Policy and Procedure, which states in part that "an employee shall bring to the attention of the Deputy Mmlster any possible involvement in a situation which mal be construed as a contlict of interest" I understand that you have declined to follow the policy established by the Mmistry and section 15 Regulation 977 under the Public SerYice_Act. Please bear In mmd that the failure to do so 'may be considered as a cause for dismissal" under subsectIOn 15 (4) of that Act. Your husband s busmess is one that is in many respects in competition" with that of the ambulance services. Accordingly, you may be in a positIOn to affect both operatIOns by assistmg your husband (for example, by providing him with call volume and inter facili!)' transfer mformatIon) This conduct would, therefore, interfere with your duties as a public servant, mfluence or affect the carrymg out of such duties, or giye you an advantage or benefit, pecumary or otherwise, derived from your employment as a public servant. \\ ith respect to the question whether a conflict exists, your husband s pOSition as Operations Manager for a company offering patient transportation services likel} places you In a conflict of Interest under section 15 of RegulatIon 977 and under the Human Resources Directlyes and Guidelines (HRDG) Even if the conflict were not an actual one, the potential for a conflict would eXist in the nature of both your employment and your husband s busmess. Moreover, the perceptIOn of a conflict \Yould be a real one, not only by the public, but also by other companIes seekmg to start a bus mess SimIlar to that of your husband, 1 should emphaSize that all such conflicts actual, potential and perceived -- are prohibited under the HRDG .., ,) Accord1l1glv it IS my advice that you remove yourself from tillS contlict of 1I1terest situatIOn at the earliest opportulllty Yours sincerely 'Signed" Margaret Mottershead Deputy Minister The Public Service Act, Reg 977, SectIOn 15 reads as follows 15. (1) A public servant shall not engage in any outside work or business undertaking, (a) that interferes with the performance of his or her duties as a public servant, (b) in which he or she has an advantage derived from his or her employment as a public servant; (c) in which his or her work would otherwise constitute fuIl-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 or her duties as a public servant. R.R.O 1980 Reg. 881 s. 20 (I) (2) A public servant who considers that he or she could be involved in a conflict of interest, in that he or she might derive personal benefit from a matter which in the course of his or her duties as a public servant he or she is in a position to influence, shall disclose the situation to his or her deputy minister, agency head, or minister, as the case may be, and shall abide by the advice given. (3) A public servant who considers that he or she could be in a position of conflict with the interests of the Crown arising from any of his or her outside activities shall dIsclose the situation to hIS or her deput} minister agency head, or minIster as the case may be and shall abide by the advice given. R.R.O 1980 Reg 881 s. 20 (2,3), revised. (4 ) Contravention of any of the provisions of subsection (1) or disregard of subsection (2) or (3) may be considered as cause for dismissal. R.R.O 1980 Reg 881 s 20(4) [Emphasis added] The Mlmstry of Health s Corporate PolIcy and Procedure addresses "ConflIct of Interest and 4 llonorana " I belIeve It IS useful to quote the sectIOns on C ont1lct of Interest 111 full, lI1 order that the parties may understand ho'A- senously concerned the Cmployer IS WIth both actual and perceIved cont1tcts of mterest ThIS polIcy also sets out the role of the Deputy Minister III the determmatlon and consequences of -the IdentIficatIOn of a conflIct of mterest. CONFLICT OF INTEREST HONORARIA Executive Comm ittee approved the followmg policy statement on November 16, 1983 . Superseding the statement approved on July 21 1982. PURPOSE To ensure that MinlStry staff identify possible contllct of interest , situatIOns to the Deputy Minister POLICY (a) ConflicLof Interest STA TEMENT Ministry Staff are individually responsible for being conversant with legislation and general policy concerning connict of interest and for identifying their possible involvement in any connict. (b) Hoomaria Mmistry employees shall not accept honorana for serving on committees, task forces, work groups or as guest speakers/I ecturers during_ or_afteLllOnnaLworkingMurs, where the activity is a direct result of their pOSitions or field of knowledge derived from their employment with the Crown. REFERENCES These statements should be read in conjunction with. Section 20 of Regulation 881 under The Public Service Act, wherem it is an offense for a public servant to engage in any work. or undertaking which interferes with the perfonnance of his duties as a public servant, in which his interest conflicts with the best interests of the Crown, in which he has an advantage denved from employment as a public servant, or which would otherWise constitute full-time employment for another person. Ontario Manual of AdmmistratIOn, Volume:2 Section 6-25- 1'3 Cnmmal Code of Canada, Section 110 wherem it is an offense for a publIc servant to demand or accept a reward or benefit from a person havmg dealings with the government. Manual of Corporate PolIcy and Procedure Statements 3-1 17 and 3 2 17 dealing wIth performance appraisal ThiS is an 5 ongOll1g procedure ....hlch should Identify any problems whICh could constItute a conflict of mterest. APPLICATION These statements apply to all Ministry staff. DEFINITION Conflict of Interest - a conflict between a public servant s personal interest and his responsibility as a public sef\'ant (Ontario Manual of Administration 6-25-1). HonorarIum fee paId to public servants for services rendered to other JUrISdictIOns dunng and after normal workll1g hours. CONFLICT OF INTEREST PROCEDURE The employee shall bring to the attention of the Deputv Minister any possible involvement in a situation which may be construed as a conflict of in terest. Prior to seeing the Deputy Minister, the employee may discuss the situation with his/her supervisor, and/or may contact the Director, Human Resources Branch, for confidential advice as to whether, in fact, a conflict of interest exists. However, resolution of any conflict shall remain the responsibility of the employee and the Deputy Minister Where the Deputy Minister identifies a personal conflict of interest on the part of an employee, the Deputy Minister may request the responsible senior manager or hospital administrator to review the employee s performance during working hours as set out in the control section. HONOR,<\RIA POLICY Conditions of Employment CDNFLlCLOfINIEREST DefinitlQn 'Confllct of Interest A conflict of interest is defined as a conflict between a public servant's personal interest and his/her responsibility as a public servant. This includes actual or perceived conflicts and those which have the potential to be actual or perceived. Conflict of interest may exist whether or not a pecuniary advantage has been or may have been conferred on the public servant. 6 ~tatement of Pnnclple The basic concept underlying all policy on conflict of interest is to prevent conflicts of interest from arising by placing responsibility on the employee for reporting any conflicts of interest to his/her Deputy Minister Public Servant s Responsibility A public servant shall not engage in any outside work or Rl.:garding business undertaking' OutsIde that interferes with the performance of his/her duties Employment as a public servant. in which he/she has an advantage derived from his/her employment as a public servant, in which his/her work would otherwise constitute full-time employment for another person, or In a professional capacity that Will, or is likely to influence or affect the carrying out of his/her duties as a public servant. (Ref REG 20 (I).) Pllblic.-Sen:ant's Res JlilllSibility Each public servant- Regariling a) Shall identify and disclose to his/her deputy minister, Conflicts. agency head or minister, as the case may be: Any possible conflict of interest, even though its significance may be thought to be marginal, Any conflict of interest in which he/she might derive personal benefit from a matter which, in the course of his/her duties as a public servant, he/she is in a position to influence; Any position of conflict with the interests of the Crown arising from any of his/her outside activities, and b) Shall abide the advice given to him/her (Ref REG 20(2) and (3) ) Publi~Se.rYanLs R.espill1sihi~ As the resolutIOn of any contlict of interest will apply ReganimgDthe.r only to the circumstances at the time of disclosure, the Possible publIc servant shall Confucts. Keep the situation under review' and Make subsequent disclosure as necessary Examples of ContlIct of The following IS a short list of examples of contllct of lnIerest 1I1terest situatIOns, which IS not intended to be all-inclusisve SItuations a) Where the public servant mav mfluence the decIsions of the Government m dealmg with a company whIch conducts busmess with the Government, when the companj is largely owned or controlled by a public servant or an Immediate relative, or 111 which the public servant mav have an interest. 7 ./ b) Where the public servant may mfluence the decIsions of a ministry in respect of a particular company or municipal body which IS applymg to a rnil1lstry for a loan, grant or other advantage, when the pubhc servant has a sIgnificant responsiblhty m the affairs of the applicant, e g. he/she is a trustee of land or other property c) Ownership by a publIc servant of land or other property where a property value may be mtluenced by the pubhc servant. d) Where a publIc servant accepts favours from an indIvidual, organization or corporation which deals or may deal with the Ontano Government and where the public servant is or may be in a positIon to influence the dealings. e) When members of a public servant's immediate famIly receive personal benefit as a result of the posItIOn of the public servant. Deputy Minister's The deputy minister, agency head or minister, as the case Authority may be, has the authority to determine the course of action required to resolve any conflict of interest disclosed to him/her (Ref. REG 20 (2) and (3).) DelegatlOlLnf Deputy The authonty of a de put) minister or agenc) head, to deal Mmister '~ with areas of contlIct, is not to be delegated without the Authority~ pennisslOn of the mimster Deputy Mll1is1eLs In dealing wIth dIsclosure of possible areas of conflict by O-ptions. a public servant, optIOns which may be exercised by the deputy mInister include' a) Instruct the public servant to divest himselflherself of the outside interest. b) Instruct the public servant to transfer the outside interest to a neutral third party c) Transfer the public servant to another work unit. d) Publicize a potential conflIct so that the actual conflict can be avoided. e) Temporarily remove the public servant from those responSIbilitIes which cause the conflICt. f) Permit the public servant to continue with hislher duties but arrange that his/her decisions are pre-audited by his/her supenor g) Accept the reSIgnation of the public servant. h) If the appearance of conflIct is deemed not to constitute a conflict WIth the best interests of the Crown, so infonn the public servant. C onfidentlal1ty of DIsclosures. Disclosure of areas of conflIct IS to be treated as confidential between the deput) mmister and employee 8 If the deputy mmlster finds It necessary to discuss the problem with others, either wlthm or outside the ministry he/she should first mform the employee of the fact; and should not disclose the identity of the employee without first consultmg him/her Penalty for Contravention The followmg may be considered cause for dIsmissal or DIsregard. contravention of any of the provisions regardmg outside employment. disregard for the provisions regarding disclosure of possible conflict of interest. (Ref REG 20 (4).) Deputy MlnlSter s These provIsions do not limit the deputy minister in the use DlscIphnary of the procedures under The Pubhc Service Act and Powers. RegulatIons, for dealing with SItuatIons where disciplinary action is deemed to be required. PolItICal ActiYity: The rights of public servants to engage in political activity is [sic] covered separately (See Section 6-20 ) Releas~Jlf lnformatUlll. The rights of public servants with regard to the release of mformation is (sic] covered separately (See Section 6-50 ) QAIHS The partIes presented an Agreed Statement of Facts at the tIme of the hearmg Certam amendments and addItIons were made at that tIme and these are reflected below' 1 The Grievor is a Communications Officer In the Oshawa Central Ambulance Communications Centre (OCACC) She commenced employment there on Apnl6 1988 as a Go-Temp, moved to the UnclassIfied Service in January 1989 and to the ClassIfied Service in December 1989 To date the Grievor has no diSCiplinary record. Attached as Appendix 1 is a copy of the Position SpeCification for this position. The capability and competency of the Gnevor to fulfill the dutIes of the position are not in questIOn. 2 The pOSItion involves receiving, assessing and responding to requests for both emergency and non-emergencY patient transfers. The Communications Officer is responsible for the dispatching of onl) Ministrv of Health authorized ambulance services and it does not involve any contact with non-authorized transfer services. 9 3 Non-emergency pallent transfers II1clude transfers to and ll'om hospllal facilities ~ and nursing homes or other facIlitIes both before and after treatment. Willie these transfers are undertaken by Minlstr; of Health authonzed ambulance ser.. ices. these transfer[ s] are undertaken on Iy on a non-prlonty basIs Consequently there can be delays or cancellations when authorized ambulance servIces are not immedIately avaIlable due to other pnontles. Where the non- emergency patient transfers are undertaken bv ambulance serVices, they would be scheduled and dIspatched through the OCACC by one of Its Commul11cations Officers. 4 In response to a growth 111 non-emergency transfers during a period of restraint, transportation services other than ambulances have commenced offenng non- emergency patIent transfer services. Where a non-emergency patient transfer is undertaken by a non-ambulance service, the transfer would be scheduled and arranged through the hospital or facility or directly with the patient. Such a transfer would not involve the OCACC or any of its Communications Officers. To date, these services have not been used by hospitals, facilities or patients in the area served by the OCACC. 5 On June 14, 1994 the Grievor delivered a letter dated June 9 1994 to Mr Darryl Culley OperatIOns Manager for the OCACC AppendiX 2 is a copy of the letter The letter indicated that effective June 1 1994, Emergency Medical Consultants had begun a "limited practical alternative to the use of regular emergency ambulances m the transportatIOn of your stable, non-emergency patIents" 6 At the time, the Grievor s spouse, Don Edwards, was the OperatIOns Manager and held a part interest in Emergency Medical Consultants. In October 1994, Mr Edwards became the sole owner of Emergency Medical Consultants. 7 On July 14 1994 the Gnevor was given a memorandum from Darryl Culley (Appendix 3) indIcating that her husband s involvement m the transfer service could be construed as a potential conflict of interest with her posltlon as a dispatcher" Mr Culle; mdicated that the Ministry s policies required employees to 'bnng to the attention of the deputy Mmister any possible mvolvement in a situatIOn which may be construed as a conflict of interest" Attached to the memorandum was a copy of the Ministry of Health Corporate Policy and Procedure. 8 On July 27 1994 a further memorandum was given to the Gnevor (Appendix 4) agam requestmg that she contact the Deputy Mil11ster regardmg the potential contlIct of mterest. 9 Following receipt of the memorandum dated July 27 1994 the Grievor contacted the Human Resources Branch, Ministry of Health and "'as adVised to prOVide the requested infonnatlon to the Deputy M1l11ster through her supervisor DalY II Cuiley 10 On August 24 1994 the Grievor provided a letter dated August 23,1994, to 10 Darryl Cullc\' (Appendix 5). The letter indicated that the grievor had "no interest or involvement with the company" and that she had "no intentions of compromising Iherl position by disregarding the policy outlining conflict of interest" IDa In early November 1994 a memorandum from Michael Ennis was sent to Deputy Minister Margaret Mottershead advising her of the Grievor's potential conflict of interest [Appendix 6a] 11 A letter dated November 18, 1994 was sent to the Grievor by the Deputy Minister Ms. Margaret Mottershead (Appendix 6) The letter mdlcated that her husband s involvement III the transfer of patients placed the Gnevor in the position of an actual, potential and perceived conflict of interest with her position as dispatcher As a result, it was the Deputy Mimster's advice that the Gnevor "remove [herself] from this conflict of mterest situation at the earliest opportunity 12 On December 19 1994, the Grievor grieved the direction of the Deputy Mimster as a dIsciplinary actIOn. (Appendix 7) 13 On December 28 1994, the Gnevor was gIven a memorandum from Darryl Culley responding to her grievance. (Appendix 8) 14 On January 23 1995 a letter was sent from Barry Casey OPSEU Staff Representative to the Deputy Minister objecting to the Deputy's direction regarding the conflict. (Appendix 9). At paragraph 3 the Umon invites the Ministry to meet regarding the matter 15 A meeting was held on February 23, 1995, to discuss the issue. No resolution to the conflict was achieved at this meeting. A letter dated April 12, 1995 to the Gnevor from Rick Annstrong confirms the discussIOns that took place at this meeting. (AppendiX 10). 16 On Apnl 21 1995, the Grievor met with Karen Clarke, Human Resources Consultant, to provide her resume and discuss future places in respect of the conflict of interest. J7 To date. permanent assignments to another vacancy under Article 4 6 I have not been possible due to conflict with the rights of other employees. 18 Effective Ma'v 3, 1995 the Gnevor accepted a temporal) change of assignment to Whitby Mental Health Centre at no loss of pay 19 On August 10 1995 the Grievor was sent a letter from Rick Annstrong confirmmg Clrcumstances to date regardmg the confllct. (Appendix II). 20 On August 21 1995 the Gnevor was provided with a temporary assignment to Medical Air Transport in Concord. This transfer IS continned in a letter dated August 16 1995 from Karen Clark (AppendiX 12) 21 The Employer agrees that to date there is no evidence that the Grievor has 11 provided any mformation received m the course of her duties to assist her husband s business. 22 The Employer agrees that to date the Grievor s husband's business has not derived any benefic\t from the M imstry of Health in respect of non-emergenc'r medical transfers. WhIle the partles do not agree that thIS IS a matter of dISCIplIne, It IS common ground that there IS an Issue between the parties whIch IS In need of resolutIOn. Mr JIm Paul, representIng the Umon, takes the pOSItIOn that the matter IS dlsclplmary He submItted that the facts do not warrant a findmg that the gnevor IS m a conflIct of mterest SItuatIOn, or that dISCIplInary actIOn IS appropnate Furthermore, It IS the Umon S pOSItIon that the Employer's actIOns, m partIcular the dIrectIVe from the Deputy Mmlster, IS dlscnmmatory on the baSIS of mantal status and IS, therefore, contrary to Artlcle A of the CollectIve Agreement. Counsel for the Employer, Mr Bnan Loewen, stressed that there was no allegatIOn of blameworthIness In thIS case The matter IS not one of dIsclplme but rather faIlure to comply with certaIn PublIc ServIce RegulatIOns. The Issue for the MInIStry IS whether the Employer, III the person of the Deputy MInIster, has the power to Issue an order to an employee to dIvest hIm or herself of a conflIct of Interest WhICh presents the questIOn of the JunsdlctIOn of the Gnevance Settlement Board to conSIder the matter If the matter IS determmed to be a dISClplmafJ one, then the Employer's pOSItIOn IS that the Gnevor m her unwIllmgness to comply and dIvest herself of the conflIct has put herself m the SItuatIOn of beIng msubordInate Counsel referred me to a number of cases treatmg of "conflIct of Interest m both the publtc and the pnvate sectors and a reVIew of them IS helpful m understandIng the broad range of conflIct of mterest SItuatIOns and m aSseSSIng the mstant SItuatIOn. The Umon also mtroduced cases on del a) of dISCIplIne and the ImpOSItIOn of a umlaterally Imposed rule and the proper standard of reVIew for the Board. I have emphaSIzed those sectIOns of the quotatIOns from the cases whIch are partlcularl) applIcable to the case of Ms. Edwards 12 Re WcKav and the Crown in Right of Ontario (A-linistry of Northern Affairs), (1981) 28 I A C (2d) 441, Crown Employces GrIevance Settlement Board, (Rayncr) The gnevor was an employee with the MInIstry of Northern AffaIrs and at the tIme the conflict of ll1terest was alleged he had been elected to the pOSItIon of presIdent of a local provIncIal rIdIng aSSOCIatIOn. HIS Employer determIned that hIS holdmg of thIS pOSItIon contravened the Intent and spmt of SS. 11 and 15, and the terms of s 14 of the Public Service Act, and that these contraventIOns could result In hIS dIsmIssal under s. 16 These sectlons cover polItIcal actIVItIes of crown employees. The gnevor was told to reSIgn the polItIcal pOSItIon or the Job WhIle the Board dId not deCIde the Issue of whether or not tIllS was a dISCIplInary matter, It dId confirm that the letter was an order from the employer to the gnevor and concluded that the Board dId have JunsdlctIOn to entertain the matter on the basis that the union has a legitimate interest m questlOnmg the propriety of the order given to the grievor notwithstanding that the grievor has since left the employ of the Ministry The Board concluded that m thIS SItuatIon a contraventIOn ofthe polItIcal actlvIty sectIOns 11, 12, 13, 14, or 15 of the Act must take place before S 16, the dIsmIssal sectIon, can be mvoked. It went on to comment that Although It may be very likely that the holding of such an office could lead to a VIOlatIOn of the Act, the evidence of the grievor estabhshes that the holding of the office does not invariably lead to such a violation. In our VIew, for the Ministry to succeed in its position, the Board must come to a conclusion that the holding of the office would invariably lead to a violation of the Act, and this we cannot do Re Van der Linden and The Crown in Right of Ontario (Ministry of Industry and Tourism) (1981) 28 L.A.C (2d) 352, Crown Employees Gnevance Settlement Board, (Swmton) ThIS gnevor who had been employed as an Industnal Development Officer m the Small Busmess Development Bank, was dIscharged on the grounds that he had engaged III conduct which placed hIm m a pOSItIOn of conflIct of mterest between hIS dutIes as a publIc servant and pn vate Interests. He was Involved III a busmess relatIOnshIp WIth one of the chents of the Small Busmess Development Bank over a penod of several months The relatIOnshIp accordmg to the 13 gnevor, \\as not expected to be profitable and ll1deed he lost money he had expended for expenses Incurred dunng his mvolvement 111 this busmess arrangement. The polICIes of thIs MInIstry explICitly stated that conflict of interest can occur even where there is no dIrect monetary advantage to the employee and places an onus on an employee to consult With IllS Deputv Mll1ister If he is in a possible conflict of interest. In decidll1g whether a public servant IS 111 a pOSitIOn of contllct of mterest, a Board such as this should look to whether the public servant has placed hImself in a sItuation where his personal mterests or actiVIties interfere with his ability to carry out his obligations as a public servant or interfere WIth the Government s ability to carry on its programmes for the service of the public While the Board did not find that the Employer was harmed by any specific action of the Grievor, it agreed that the Employer's concern that other businesses which were potential clients of the Ministry would fear the disclosure of confidential information since it could be used by a government employee for his/her personal advantage. It found that there was an appearance of conflict of interest prejudicial to the employer and that this arose from the Grievor's failure to separate his private business from his employment obligations. The Board upheld the dIscharge, commentIng that the Gnevor refused to acknowledge that he should not have engaged m the pnvate busmess actIVIty WIth hIS clIent, and that he had been mformed of the gUIdelInes and the graVIty of non-complIance Re Hallborg and the Crown in Right of Ontario (Ministry of Revenue), (1979), Crown Emplovees Gnevance Settlement Board, 22 L.A.C (2d) (289) (Weathenll) The gnevor was elected to the mumclpal councIl m the area m WhICh he worked as a real property assessor and was dIscharged. The Board exammed hIS two roles and the maJonty concluded that bv reason of hIS work and position as an assessor in the Niagara regIon even though not workmg 111 the same municlpallty the gnevor has special knowledge and access to special knowledge of matters mextricably interwoven with the fabric of muniCipal finances and polItICS. It must be emphasized, however that this role may Il1clude, at times, the defence of the interests of one constituent against those of another" the defence of the Il1terests of one constituent agamst those of another' the defence of the interests of hIS mUl1Icipality as agamst those of another or as agamst those of the ProVll1ce He might also as a member of counctl, feel impelled to take a pOSItIon agall1st the interests of some Il1dlvidual CItizen In eaeh of these situations he might well haH special knowledge or access to special knowledge, by reason of his position as an assessor, which would give him an advantage. Not all of these sItuations, It should be added, 14 would necessarily II1volve debate 111 the council chamber from which he would be seen to withdraw There is, as the employer acknowledges and as we are convinced, no question of the grievor's personal honesty and integrity There is no suggestion that the grievor would take advantage of his special knowledge for his own benefit or even for the benefit of his constituents or his municipality It IS nevertheless the case that the proper interests of an assessor conflIct with the proper interests of a municIpal counsellor 111 the same regIOn Not only is the same person undertaking to serve two masters whose lIlterests are not the same and are sometimes opposed, but he may be seen, and reasonably so, as being in a position where it is open to him to take advantage in one position (even if not for his own benefit) of the special knowledge he has gained in the other The constituent, ward, mUlllcipaJity or Province on the other side of some matter in which the council member with special knowledge IS involved, might well feel, whatever the real case may be, that the sItuation in an unfaIr one There is, in fact, a conflict of interest. Re Hamilton Spectator and Southern Ontario Newspaper Guild, Local 87 (1991), 23 L A.C (4th) 364 (Spnngate) In thIS SItuatIOn, the Gnevor, a Mohawk, was a newspaper reporter who, as part of her aSSIgnment, covered abongInal events and Issues, partIcularly those of the SIX NatIOns Reserve She entered Into a relatIOnshIp WIth one of the heredItary Mohawk ChIefs, became engaged to hIm and they were subsequently mamed. A letter was sent to her, drawmg to her attentIOn that her engagement to thIS IndIvIdual could result In a perceIved unfaIrness among the people of the SIX "1\JatIOns" because of the polItIcal splIt on the reserve" Around the tIme of theIr engagement she was covenng polItIcal events on the reserve and her fiance came to the newsroom and became Involved WIth her and her supervIsor dunng the preparatIOn of a news story and thIS tnggered a further letter whIch set out several mCIdents and the Employer's concerns WIth respect to these It noted her conflIct of Interest and mformed her of reaSSIgnment to a post where there would be no Involvement WIth SIX NatIOns' coverage The GUIld alleged that the transfer from the dlstnct aSSIgnment to a metro aSSIgnment was dISCIplInary and WIthout Just cause and contended further that she was dlscnmmated agamst on the baSIS of her race ancestry colour and mantal status. The Board acknowledged that the Gnevor was treated dIfferentlY than she otherWIse would hay e been because of her Intended marrIage to the Mohawk ChIef and that the GUIld had made out a pmna facie case of dISCnmInatIOn based on mantal status However It was left open for the Employer to demonstrate that because of the partIcular CIrcumstances of 15 the gnevor S SItuatIOn there was no actual dIscnmmatlOn " It was noted that Prohibitions against discrimination in employment are designed to ensure that individuals are not accorded different treatment on the basis of irrelevant characteristics. At times, however a charactenstlc that IS generally irrelevant may be highly relevant. The Uuman Rights Code /9Rl addresses this Issue by setting out which charactenstlcs may at times legItimately be taken mto account and also the circumstances when it IS permissible to do so The provIsIons [so 4 am J 986 c 64 S. 18 (5) s 23 am idem, S 18( 15)} in questIOn read as follows. 4( I) Every person has a right to equal treatment wIth respect to employment without dlscnmlOatlOn because of race ancestry place of ongin, colour ethnic onglO, cltlzensl1\p creed, sex, sexual onentatlOn, age, record of offences, mantal status, family status or handIcap 23 (J) The right under section 4 to equal treatment with respect to employment in not infringed where, (b) the discriminatIOn in employment is for reasons of age, sex, record of offences or marital status if the age, sex, record of offences or marital status of the applicant is a reasonable and bona fide qualificatIOn because of the nature ofthe employment. The Board consIdered three cases m the medIa arena, the first two deterrmned by ArbItrator Owen Shlme In Re Canadian Broadcasting Corp. and N.A.B.E.T., (1973) 4 L.A.C (2d) 263 (Shlme) and m Re Toronto Star and Southern Ontario Newspaper Guild, (1986) , unreported (Shlme), ArbItrator Shlme held that news orgamzations have a legitimate interest not only in ensuring that their reporters report the news impartially and in an objective manner, but that they also be reasonably perceived as doing so .Mr Shime concluded that while the CBC had no right to impose restrictions on technical staff, it could do so for news staff so as to ensure audience confidence in the integrity of news broadcasts. In the second of these cases he commented that It IS patently clear that the grievor s union activist posItion is incompatible with reporting news about labour relatIOns matters In that regard, her subjectIve interest in trade umon matters conflicts WIth her objective duty to report the news in a fair and impartial manner Also the grievor is not the person to judge her own impartiality or objectivity While she may feel that she is able to report labour matters objectivelv she cannot assess what subjective or subconscious factors may motivate her or shape the wa) in which she presents the facts of a news story involving a labour matter In short, the grievor has a conflict of interest and the employer is entitled to be wary of that conflict. 16 ", rh~ Board went on to distIngUISh the case of thc (mc" or from that of the two ca~es above on the baSIS that It was the Gnevor s fiance/husband and not the Gnevor herself who was Involved In . the outsIde actIVItIes and noted that society increasingly recognizes that married people can retain their own identities and act independently of their spouses. This does not, ho\\Cver, alter the fact that spouses generalJ} share a special relationship with each other The Board found that the Gnevor "was In a conflIct of Interest SItuatIon whIch gave nse to a reasonable apprehenSIOn concermng her abllIt'r to obJectIvely report on the VIews and actIOns of Mr MacNaughton as well as on matters that he was Involved WIth" and "that the newspaper s actIOn m remOVIng the gnevor from reportIng on Mr MacNaughton" and matters he was Involved WIth dId not constltute dlscnmmatIOn agamst the gnevor on the baSIS of her mantal status However, ArbItrator Spnngate went on to comment on the Importance of applymg a reasonableness when assessmg whether or not there IS a conflIct of mterest. there were some native-related matters which the grievor could report on with bemg in a conflict situation. It IS possible that some of the readers of the Spectator might have perceived any reporting of native matters by the grievor as involvmg a conflict of interest. The unreasonable perceptions of some readers cannot, however, logically create an actual conflict of interest or give nse to a bonajide occupational reqUirement that she not report on an} news stories relatIve to natives. He ruled that a balance of mterests was the approprIate means of JudgIng whether or not dlSCnmInatIOn had occurred In the Employer/Employee relatIonshIp To aVOId discnmInating against the grievor on the basis of her marital status, the newspaper was reqUIred to determine the extent of the change in her reportmg assignment that was, In the circumstances, reasonably necessary to keep her from reporting on Mr MacNaughton and issues he was Involved with. This would have Involved seeking to limit, as far as reasonably possible, the impact on the gnevor while at the same time takmg into account the newspaper's legittmate staffing requirements and its ability to cover news\\ orthy events. In the result the Board found that the restnctIOn that the Gnevor not report on matters mvolvmg Mr MacNaughton, and her removal from that aSSIgnment was not dIscnmmatory based on her mantal status, but that the general prOhIbItIOn agaInst her reportmg on all natIve-related Issues dId amount to dlscnmmatIOn based thereon. It was noted that the Employer failed "to follow a process of assessing the options open to it to ascertain whether some response short of transferring the grievor would meet its legitimated concerns and operating requirements." 17 Re Regional Municipality of Hamilton-Wentworth and Canadian Union of Public Employees, Local 167 ( 1978) 18 L A.C (2d) 46, (Kennedy) The Gnevor, 111 thIS Instance, was the sole landscape archItect 111 the Plann111g Department of the RegIOnal MUnICIpalIty of HamIlton-Wentworth and functIOned as an aSSIstant planner It was part of hIS Job to reVIew, approve, and comment on development proposals and to act as the maIn contact between the developer and the MUnICIpalIty HIS competency was not 111 questIOn. The Gnevor had contemplated entenng pnvate practice and whIle employed, undertook some pnvate landscape deSIgn work both mSlde and outsIde of the RegIOn. He had professIOnal relatIOnshIps WIth a number of developers and professIOnal firms who would submIt plans to the RegIOn for approval, although, WIth the exceptIOn of one proJect, he dId not do any work on proJects WhICh would come before hIm m the course of hIS emplovment WIth the RegIOn. HIS mvolvement was WIth one profeSSIOnal m partIcular and whIle he mdIcated to thIS mdlvIdual that he could not "be connected WIth any proposed firm because of hIS employment WIth the regIOn" he dId take legal adVIce on the propnety of hIS WIfe's mvolvement as a dIrector, m part for tax purposes, and was adVIsed that thIS would not Interfere with hIS responslbIlItles to the RegIOn. In due course he had office space at thIS firm, corresponded on the firm s letterhead, and receIVed half the balance of hIS bIllIngs after expenses, the other half gomg to hIS WIfe The mCIdent whIch brought these actlvItles to the attentIOn of the Gnevor S supenors was the complamt of a property owner WIth whom he had contact at the Plannmg Office, \vho observed the Gnevor at hIS property whIch was the subJect of an applIcatIOn, WIth a member of the firm. The Gnevor had mdlcated to thIS mdIVldual that more detaIled plans were reqUIred and suggested to hIS profeSSIOnal colleague at the firm he mIght contact thIS mdIvldual. The Gnevor mamtamed that at the tIme he was observed by the the property owner, "he was on the property slmpl) to aSSISt. m gathenng the baSIC data from whIch to construct the landscape plan" and had no further mvolvement m the plan. The Gnevor expressed the VIe\\- that "such gathenng of fa\\- data dId not put hIm mto a pOSItIOn of conflIct WIth respect to the responsIbIlItIes WIth the regIOn" The property owner, conveyed to the Employer that he was annoyed about the posItIOn 111 whIch he found hImself and the Employer, \'lcwmg the SItuatIon WIth lllcreasmg concern and 18 cautIOned the Gnevor to refraIn from any Involvement In a landscape architecture operatIOn When the dIscussIOns went unheeded, the RegIOn termInated the Gnevor In consldenng whether or not the Gnevor was In a conflIct of Interest SItuatIOn, ArbItrator Kennedy considered the pnnclples set out In Re McKendry and the Treasury Board (May 31 1973,FlleNo 166-2- 074- unreported) - whether or not the employee in question IS responsible for a part of a process whereby members of the public are granted or denied licences, benefits, etc., - the extent to which the employee exercise discretion in any part of such process the extent to which he deals with the public, and is seen by them to be instrumental in the process, and - the extent to which clear guidelines on the nature of conflict of interest have been promulgated, and, if they have not, whether the nature of the employee S positIOn is such that he can be expected to reach his own reasonable conclUSIOns or seek advice on the issue of conflict of interest. Followmg a thorough consIderatIOn of the Issues, the ArbItrator found that the Gnevor's Judgement respectmg the applIcatIOns he considered was not affected, that hIS competency and capabIlItIes were not m questIon, and that the Employer's mtegnty had not been compromIsed. However, he dId conclude that the conflIct dId eXIst, but that the Gnevor's belIef that It dId not was honestly held. In the result, the ArbItrator reduced the penalty from a dIsmIssal to a suspensIOn WIthout pay mdlcatmg Ius expectatIOn and confidence that the Gnevor now apprecIated the problematIC nature oflus outSIde actIVIty and would act accordmgly on hIS return. Re OPSEU (Trendell) and The Crown in Right of Ontario (Ministry of Health) (1984), GSB # 180/84 (Roberts) The Gnevor m thIS case gneved that he had been unsuccessful 111 a Job competItIOn. The M111lStry had rejected hIS applIcatIOn on the grounds that he was not qualIfied based on the fact that hIS father was the supervIsor of the department In whIch the Job vacancy occurred The Personnel Officer noted the applIcatIOn of the Gnevor and on the baSIS that the Gnevor's father was the superVIsor of the department In WhICh the competItIOn \\as be111g held and was to chair 19 the selectIOn committee he notified the RegIOnal Personnel AdmJ/llstrator who m turn mformed the Centre s Administrator This person corresponded wIth the Mmlstry s DIrector of Human Resources at Queen sPark, recommendmg that, even though the Manual of AdmmIstratlOn prohIbIted only the hmng of spouses, the applIcatIOn not be allowed and sed.mg approval from the Deputy MImster for thIS posltlon. ThIS was forthcomIng, the applIcatIOn rejected and the gnevance filed. The Board found that there was no mfnngement of the Gnevor s nght to equal treatment wIth respect to employment based on famIly status under the Human RIghts Code smce that nght was qualIfied by the exemptlon of SItuatIOns In WhIch the employer wIthholds advancement m employment to a person who IS the chIld or parent of the employer or employee ThIS case was conSIdered pnor to the mcorporatlOn of ArtIcle A mto the CollectIve Agreement of the partIes. The Board found that there were reasonable grounds to support the Mmlstry s posltlon that a potentlaI conflIct of mterest eXIsted, based on the father's conduct, the perceptlon of the commumty and of other employees Laverty v Cooper Plating Inc. (1987) 17 C C.E.L 44, (0 DC) The plamtlffEmployee filed for wrongful dIsmIssal followmg her termmatIOn due m part, to the fact that her common-law husband was operatmg a bUSIness m duect competltIOn WIth the Employer The eVIdence showed that her son was workmg In the competmg bUSIness and the Employee herself was lIsted as a dIrector of the busmess. The Court found that the plamtiffs knowledge of the entirety of the defendant s business, together with her active partlclpation in her sales manager responsibilIty, would make it incompatible for her contm\led relatlOnship with [her common-law husband] and with the knowledge of [her common law husband sJ competing corporate activity (which I have found as a fact) and, as such, I feel the circumstances could justify her disn1!Ssal, without notice, and that accordmgly [the Employer] acted with justification. The Court dIsmIssed the employee's actIOn for wrongful dIsmIssal Re OPSEU (Gilbert et al) and The Crown in Right of Ontario (Ministry of Correctional Services) (1991) GSB 313/89,467/89,476/89 (\\ dson) In the Board s conSIderatIOn of the applIcatIon of a no-smokmg rule the ArbItrator 20 -- cOPsIdered the deCISIOns of the DIVISIOnal Court and the Court of Appeal In Canadian Union of Public Employees. Metropolitan Toronto Civic Employees" Union, Local 43 and The Municipality of ~fetropolitan Toronto (1990) 74 0 0 R. (2d) 239 (C.A ), notmg that The Court concluded that there was nothmg in the Board s findings of fact which could be depIcted as patently unreasonable Moreover In Imposing a duty on the Employer to exercise its discretion to make rules with disciplinary consequences in a reasonable fashion, the Board had given the collective agreement an mterpretation that it reasonablv and logically could bear Counsel before us did not contest that thiS law applied equally to the Grievance Settlement Board. The ArbItrator then commented on the applIcatIOn of the rule as follows Once it IS detennined that the business objective of the Employer behind hiS umlaterally proclaimed rule IS reasonable, the next issue It seems to me IS to look at the means used to accomplish It and its relationship to the claimed interest of the gnevors. Re Cashin v Canadian Broadcasting Corporation et ai, 88 CLLC * 17019 The applIcant, a wnter/radIO broadcaster, mamed a publIc figure and assumed hIS name She was demed contmuIng employment followmg hIS appomtment as a dIrector of a maJor resource compan) on the grounds that the 'local lIstenmg audIence mIght perceIve the applIcant as lackmg m obJectIVIty m reportIng on resource Issues because of the promment pOSItIOn of her husband m that field" The applIcant began by filIng a complamt WIth the CanadIan Human RIghts CommISSIOn. The complamt was dIsmIssed but the declSlon of the tnbunal was reversed by the Federal Court of Appeal and the matter was remItted to a smgle adJudIcator slttmg as a Human RIghts Tnbunal ThIS AdJudIcator found that the Employer s actIOn dId constItute dlscnmmatIOn based on mantal status (contrary to ss 7 and 10 of the Canadian Human Rights 4ct), that It was not exempted as a bonajide occupatIOnal reqUlrement under s. 14 and ordered the CorporatIOn to offer remstatement among other remedIes In response, the CorporatIOn appealed and was successful, and the ApplIcant followed thIS up WIth an appeal to the Federal Court of <\ppeal whIch was m ItS turn successful The Court found that the practIce of dlfferentlatmg agaInst a marrIed women who adopts her husband s surname was dlscnmmatory and that the CorporatIOn faIled to establIsh a bona fide occupatIonal reqUIrement exceptIOn m the case of the \vnter/broadcaster In reachll1g that conclUSIOn, the Court conSIdered that the :21 CQrporatIOn's concern was not a reasonable apprchensIOn of bias as Judged from Its perspectIve but was rathcr the subJcctIvc tcst 'based on a sheer guess by the employcr as to how the publIc IS reactmg or IS lIkely to react" Thc end result was that AdJudicator's deCISIOn and remedIes wcre remstated Re Corporation of the Borough of North York and Canadian Union of Public Employees, Local 373, (1979) 20 L.AC (2d) 289 (SchIff) In thIs case, a number of Issues was addressed, among them, the delay of the Employer m ImpOSIng dISCIplIne follOWIng the event on WhICh It IS relymg. ArbItrator SchIff was not prepared to allow the Employer to rely on an event for dIscIplmary purposes due to the delay between the occurrence of the event and the ImpOSItion of the dISCIplIne He commented that beyond a few days, m thIS case, a penod of seven weeks, that the employee IS JustIfied In concludmg that hIS conduct IS condoned and the Employer IS barred from the levymg of any penalty Re Brunswick Bottling Ltd. And Retails, Wholesale and Department Store Union, Local 1065, (1984) 16 L.AC (3d) 249 (IwanIckI) (N.B) Relymg on the SchIff deCISIOn, supra, thIS ArbItrator found that a delay of eleven weeks In Imposmg dISCIplIne for an Illegal stnke rendered the dISCIplIne Imposed untlmely and therefore InvalId. Re Vancouver Shipyards Co. Ltd. And Marine & Shipbuilders Union, Local 506 (1988) 34 LAC (3d) 412 (Ready) (B C ) The Umon gneved the Employer's fmlure to recall the Gnevor and the Employer JustIfied thIS faIlure based upon the Gnevor's off~duty plcketmg conduct 8 months earlIer ArbItrator Ready commented that Because the company dId not take definitIve actIOn agamst the gnevor at the tune of the protest plcketmg incident, which could have been grieved at that time, the employer has put itself at nsk in taking such definitive action eIght months later than the mCldent giving rise to potential diSCipline. 22 Tbe gnevancc \\>as sustamed and the Gnevor s recall fIghts restored Rc Cove Guest Home and T\lova Scotia Nurses Union (1990) 14 L A.C (4th) 48 (North) (N S ) There was a two-month delay m the ImposItIon of dISCIplIne lI1 thIS case patlent abuse, and whIle the ArbItrator dId not find that the delay InvalIdated the dISCIplIne, he/she commented that to be advised over two months after the alleged mcident occurred of the extent of the diSCipline IS, at least to some extent, an example of justice delayed is justice denied" and reduced the 10-day suspenSiOn to 5 days DeCISion Jurisdiction The JurIsdIctiOn of the Gnevance Settlement Board IS grounded m the Crown Employees Collective Agreement, S 19 (1) 19 --(1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the mterpretation, application, administration or alleged contraventIOn of the agreement, including any question as to whether a matter IS arbitrable, such matter may be referred for arbitratIOn to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their eVidence and to make their submissions, shall decide the matter and its deCISion IS final and bmding upon the parties and the employees covered by the agreement. The partIes are III agreement that a dIfference eXIsts between them and that thIS dIfference IS In need of resolutIOn. The Issue of whether or not a conflIct of mterest eXIsts has been prevIOUSlY treated by the Gnevance Settlement Board. (See McKay, Van der Linden, and Hallborg supra) The Deputy MmIster denves hls/her authonty and dIscretIOn for dealmg WIth pOSSIble cont1lct- of-Interest SItuatIOns from the Public Service Act Reg 20 (2) and (3) and thIS authOrIty lS set out In the MInIStry of Health, Corporate PolIcy and Procedures. However, the deSIgnatIOn of authontv and dIscretIOn does not mean that actIOns and deCISIons resultmg from the exerCIse of that authonty are Immune from reVle\\ of the Gnevance Settlement Board m cases In whIch the 23 UnIon has a legitImate Interest. ThIs, 111 m) OpInIOn, IS one such case The Gncvor '; lIvelIhood IS threatened, she has been transferred away from her home base and It has been ImplIed that she should make maJor changes to her personal SItuatIon 111 order to dIvest herselfofthe alleged conflIct of mterest. I find, therefore, that I do have JunsdlctIon to determIne whether a conflIct of mtercst as IdentIfied by the Deputy MInIster does eXIst m the case of thIS Gnevor Disciplinary or Non-disciplinary Matter The Issue of whether or not thIS IS a dISCIplInary matter IS a matter of dIspute between the partIes. The Umon sees the transfers as dlscIplmary whIle the Employer VIews the diSCIplInary aspect to be lImIted to the "msubordmatIOn" should the Gnevor fall to comply WIth the order of the Deputv Mlmster set out m her letter of November 18,1994 I agree WIth the Employer m thIS regard. The Employer has well-establIshed regulatIOns and polICIes WIth respect to conflIct of Interest on the part of CIVIl servants and It IS clear from theIr breadth that the preventIOn In the CivIl ServIce, of conflIct of Interest both actual and perceIved, IS a hIgh pnorIty for the Employer The Employer has made It clear that It does not WIsh to see thiS employee lose her pOSItIOn, and m my VIe\\- the transfers whIch, whIle they may have been personally Inconvement to the Gnevor have been a means ofretammg her m a pOSItIOn whIle arrIvmg at a hoped-for resolutIOn. It IS not the applIcatIOn of the confhct-of-Interest regulatIons and procedures whIch IS dlsclplmary m thIS case smce there IS no allegatIOn of any actIOn contrarv to the Employer's 111terest, It IS the msubordInatIOn whIch may ensue from the faIlure to notIfy the Deputy Mmlster or to follow the orders set out by the Deputy Mmlster WhICh may attract dISCIplIne. Dela, of Discipline The Umon has alleged that there has been a delay m mformmg the Gnevor of the undeSIrable SituatIOn and that thIS delay should InvalIdate any dlsclpl111e It IS not clear If the l mon IS consldenng the delay from the date of establIshment of Emergencv MedIcal Consultants or from the date of the letter There was no eVIdence WIth respect to the Employer s knowledge pnor to the receIpt of the letter and therefore any conSIderatIOn of delav would need to date from the Emplover s knowledge through the letter SInce that tune the Employer and the Employee 24 have bcen mvolvcd 111 dealmg wIth the matter and there has not, I belIeve been any unreasonable delay In the Employer S response J< urther the dela) CIted 111 the cases presented mvolve delay 111 applymg dISCIplIne and the Employer had not treated thIS as a dISCIplinary matter up to the tIme of the heanng Nature of Conflict of Interest for a Public Servant Osborn's Concise Law Dictionary defines "Interest" as follows A person IS said to have an interest In a thing when he has rights, titles, advantages, duties, liabilities connected WIth it, whether present or future, ascertamed or potential, provided they are not too remote One may have an Interest In a bUSIness WIthout beIng Interested In It and WIthOUt takIng any actIve part m It. Spouses m OntarIO have an actual mterest m each other's finanCIal mterests unless they make legal arrangements to alter that SItuatIOn. The nature of conflIct of Interest legIslatIOn and polIcy respectmg publIc servants m the Provmce of OntarIO IS preventIve In dIrectIOn and IS very broad m concept. It puts the onus on the employee to make known to the Deputy Mimster an actual, perceIved, or potentIally actual or perceIved conflIct In order that the Deputy MmIster may proVIde "adVIce" on the matter and see that the matter IS promptly resolved. The penalty for faIlure to notlfy can be severe; It can go so far as dIsmIssal The Deputy Mimster has WIde dIscretIOn m provldmg that adVIce and resolvmg the Issue or m removmg the conflICt. Some SItuatIOns WhIch may attract the conflIct of mterest label are the receIpt of honorana, the holdmg of polItIcal office, outsIde employment aCtlvltIes, outsIde busmess actlvltleS, the denvatIOn of personal benefit when bemg m a pOSItIon to 1l1fluence, the ownershIp of property, the acceptmg of favours, and the receIpt of personal benefit by the ImmedIate famIly of a publIc servant. It IS not necessary for an) finanCIal advantage to come to a publIc servant for a conflIct of mterest to eXISt. The publIc servant whose SItuatIOn attracts the conflIct of mterest label, may have taken no actIOn whatsoever, and further may have no mtentIOn of takmg any actIOn whIch would be contrary to the Employer s mterest. A pubhc servant who finds hIm or herself so labelled may feel that hIS or her honesty IS bemg Impugned. 25 ThIS, however docs not folio\\- A pubhc servant wIth a conflict of Interest label IS not bemg accus~d of a lack of mtegnt) or honestv For such an accusatIOn there would n~ed to be som~ specIlic actIon on the part of the employee whIch would attract such a deSIgnatIOn. It IS suffiCient m conflIct of Interest situatIOns that there IS the suggestIOn of the possibIlIty of a conflIct of Interest and no actIOn need ever have taken place and no benefit, present or future need be denved. The Deputy Mmlster 5 letter Identlfies the follOWIng areas of conflICt. 1 "Your husband's business is one that is in many respects in "competition" with that of the ambulance service" The Ambulance Act restncts the response to emergency calls and the transportatIOn of IndIVIduals Involved m such emergencies to MInIStry of Health ambulance SeryICes. No such restnctIOn eXIsts on the transportatIOn of stable patIents from home to hospItal or from hospItal to home The letter sent by Emergency MedIcal Consultants to Mr Culley Identlfied 3 areas m whIch the) are mvolved (a) Stand-by first aid servIce at sports and speCIal events and follow-up contact WIth the Ambulance/DIspatch ServIces If reqUIred, servIces not prOVIded by the Ambulance/DIspatch SerVIces, (b) The proVISIOn of RegIstered Nurses, a servIce not proVIded by the Ambulance /Dlspatch ServIces, and (c) The transportatIOn of stable, non-emergency patIents whIch the Ambulance/DIspatch SerVIces do prOVIde on a non-pnonty baSIS. Emergencv MedIcal Consultants could, therefore only be Said to be "In competItIon" With the Ambulance/DIspatch ServIces In the transportatIOn of stable, non-emergency patlents. Therefore the area of competitIOn" 15 lImIted. One must also recognIze that In contrast to the Gnevor In Re Regional Municipalitv of Ilamilton-Wentworth and Canadian Union of Public Employees. Local 16 7 supra Ms Edwards has not, accordmg to the eVIdence taken any actIOn to establIsh thIS facet of Emcrgencv MedIcal Consultants. 26 2. "Y ou may be in a position to affect both operations (Emergency Medical Consultants and Oshawa C.A.C C ] by assistmg your husband (for example, by pro\ iding him with call volume and inter-facility transfer information)." The fact that Ms Edwards IS employed at the Oshawa C.A.C C gIves ht:r access to certam mformatlon regardIng the operatIOns of the Oshawa c.A.C C Bemg the spouse of the owner of Emergency MedIcal Consultants also places her In a SItuatIon where thIS mfom1atIOn could easIly be conveyed, If she were so Inclmed. She has IndIcated that her oath prohIbIts thIS, she has never done so, nor does she mtend to do so However, that does not solve the problem of perceptIOn m a conflIct of mterest SItuatIOn. ThIS same problem would present Itself to most others occupYIng a pOSItIOn at the Oshawa C.A.C C who were also In a spousal relatIOnshIp WIth the owner of a SeryICe comparable to Emergency MedIcal Consultants whIch transported non- emergency patIents. ThIS would be true whether that person was a management employee, a member of the commumcatIOns staff or a member ofthe clencal staff It has nothIng to do WIth the Gnevor bemg suspected of sharmg mformatIOn or compromlsmg the Employer 3. Assisting your husband "would" (a) interfere with your duties as a public servant, (b) influence or affect the carrying out of such duties (c) give you an advantage or benefit, pecuniary or otherwise, derived from vour employment as a public servant. It would, m mv opmIOn, be more accurate to state that Ms. Edward's aSSIstIng her husband could hay e the results lIsted above In other words, the effects lIsted do not necessarIlv follow from Ms Edward s pOSItIOn as a CommUnICatIOns Officer at the Oshawa c.A.e C However these outcomes need only be a pOSSIbIlIty for a potentlal conflIct of mterest to anse 27 4 '" our husband's position likely places) ou in a conflict of interest under section 15 of Re~ulation 977 and under the Human Resources Directives and Guidelines (HRDG) SectIOn 15 reads as follows 15. ( I) A publIc servant shall not engage in any outside work or busIness undertaking, (a) that interferes with the perfom1ance of his or her duties as a public servant, (b) in which he or she has an advantage derived from his or her employment as a public servant; (c) in whIch his or her work would otherwise constitute full-time employment for another person or (d) In a professional capacity that wIll, or is like Iv to, influence or affect the carrymg out of his or her duties as a public servant. R.R.O 1980, Reg. 881, s. 20 (1) Ms Edwards has not engaged m any outsIde work The questIOn of whether or not she has engaged many busmess undertakmg IS not so clear The eVIdence demonstrated that she has not taken an actIve part In Emergency MedIcal Consultants, other than guaranteemg the loan. However she does have an mterest In the Company b) vIrtue of her bemg a spouse In OntarIO who has nghts under the Family Law Act whIch she has not taken steps to dIvest herself of. The matter of allegIance comes mto play In thIS sectIOn. The Intent of SectIOn 15 IS that the publIc servant s lOyaltIes not be compromIsed or dIVIded and that the publIc servant not be m a pOSItIOn m whlch that IS a possibIlIty Ms. Edwards' spousal relatIOnslllp could "mterfere WIth the performance of her dutIes as a publIc servant" and she could gam an advantage denved from flus or] her pOSItIOn as a publIc servant", that m spite of the fact that she has stated that she values her .lob hIghly and \\ould not aIIow such a thIng to happen. Only the possIbIlIty need be there for a conflIct of mterest to eXISt. 5 "Even if the conflict were not an actual one, the potential for a conflict would exist in the nature of both your employment and your husband's business." The matter of potentIal conflIct has been discussed above 28 6. The perception of a conflict would be a real one by the public. bnsunng that SItuatIOns do not eXIst whIch may be mterpreted by the publIc as favountIsm, unfaIr advantage and other such conflicts of mterest IS Important to the Employer It IS faIr to say that there are members of the publIc who wIll perceive a conflict of mterest on the flImSIest of eVIdence It makes sense, therefore to apply a reasonable person-standard and to consIder the SItuatIOn gIVIng rIse to the alleged conflIct m that hght. The Oshawa C A.C C IS a serVIce used by the publIc and paId for by the publIc Emergency MedIcal Consultants IS a small pnvate busmess whose purpose IS to produce a profit. If there is any benefit to be had, It would be that Emergency MedIcal Consultants would benefit from the Oshawa C.A.C C WIthout Ms Edwards there there IS, based on the eVIdence, no dlscernabIe lmk. With her bemg employed b\ the Oshawa C A.C C and bemg the spouse of the owner of Emergency MedIcal Consultants, there IS a lmk based on WhICh a reasonable member of the publIc could draw the conclusIOn that there IS a pOSSIbIlIty of an advantage flowmg from the Oshawa c.A.C C VIa the lmk (Ms. Edwards) to Emergency MedIcal Consultants. In thIS respect, It can be SaId that Ms. Edwards finds herself m a conflIct of mterest. 7 The perception of a conflict would be a real one by other companies seeking to start a business similar to that of your husband. As WIth the perceptIOn of the publIc It IS appropnate to base an assessment of thIS on the perceptIOn of a reasonable person. It would not be unexpected to find that persons m competIng bUSInesses would be more attuned to the posslblhty of conflict of mterest, and, for the same reasons as the perceptIOn of the publIc It would not be unusual for a competmg busmess to Vle\\ Ivls Edwards pOSItIon as posSIbly provldmg an advantage to Emergency MedIcal Consultants Some of thIS could be offset b) the Employer havmg gUIdelmes for staff who mIght deal WIth outSIde compames to ensure that all compames receIve faIr and equal treatment. If, for mstance the aSSIgnment of calls were to be part of the relatIOnshIp between Oshawa C A.C C and pnvate busmesses SImIlar to Emergency MedIcal Consultants, then a consIstently-run rotatIOn system could ensure faIrness and a perceptIOn of faIrness 29 Therc are three serVIces offered by Emergency fvledIcal Consultants I Special events emergency medIcal coverage ,.., TransportatIOn of your" stable non-emergency patIents - 3 The proVISIOn of RegIstered Nurses. Does cach of these create a conflIct of mterest SituatIOn for Ms. Edwards? In my opmIOn, there are dlstmctlOns to be made SpeCial events emergency coverage IS not proVIded by the Oshawa C A.C C and an~ benefit WhICh would flow would, It seems flow to the Oshawa CACC In the case of the transportatIOn of stable, non-emergency patlents, benefit could flow from Oshawa C.A.C C to Emergenc) MedIcal Consultants gIven that both are Involved In the same actIVIty whether or not the commumcatlOns come through the CommumcatlOns Centre With respect to the prOVISIOn of RegIstered Nurses, It would, I belIeve, stretch a pOInt to expect that the mformatIOn about patIents WhIch IS WIthm the normal scope of a commumcatIOns officer or an ambulance serVIce, mcludes whether or not that mdlvIdual reqUIres a speCIal duty nurse Such arrangements are normally made WIth the asSIstance of other sectors of the Health Care System. As for emergency patIents gomg to hospItal, the focus IS on gettmg them to hospItal and ongomg care would not be amongst the conSIderatIOns at the tIme of the call to the CommUl11CatIOns Centre The Umon has argued that the Gnevor has been dIscnmmated aga111st on the baSIS of her marItal status and that thIS IS In VIOlatIon of ArtIcle A of the CollectIve Agreement. The relevant portIOn of that artIcle reads as follows There shalI be no discnmination practised by reason of race, ancestry place of ongin, colour, ethnic origin, citizenship, creed, sex, sexual onentation, age, marital status. family status, or handlcap as defined in section 10 (I) of the Ontano Human Rights Code (OHRC) [EmphaSIS added} A.rtlcle 10 (1) defines "mantal status" as follows the status of being married, single widowed, divorced or separated and mcludes the status of living With a person of the Opposite sex m a conjugal relationship outside mamage To ac.cept the Umon s argument would be to negate a maJor portIOn of the conflIct ofmterest regulatIOns and dIrectIves There IS, 111 my opmlOn, no dIscnmmatIon bemg practIce on the part 30 of the I mplo\ er Thcre was no e\ Iucllce to show that the regulatIOns and dIrectives had been applied dllfercntIY to her than to others based on her mantal situatIOn. Therefore I find that the Employer IS not In vIOlatIOn of Artlcle A In ItS applIcatIOn of the conflIct of Interest regulatIOns and dIrectIves to the Gnevor In conclusIOn, I wIsh to convey to the partIes that It would be unfortunate for Ms Edwards to lose her posItIon over thIs conflIct of Interest. I note that In the MinIstry of Health s Corporate Pohcy and Procedures, that the resolutIOn of any conflIct shall remaIn the responsIbIlIty of the employee and the Deputy MInIster It appears that dunng the process leadIng up to the arbItratIOn that, whde the Employer was makIng an effort to accommodate the Gnevor on an Intenm basIs and wIthIn the confines of the CollectIve Agreement, the Gnevor was maIntaInIng her honestly held behef that she dId not have a conflIct of Interest. At the same tIme the Deputy Mimster and others were maIntaInIng theIr posItIOn that Ms. Edwards should dIvest herself of thIs conflICt. The documentary eVIdence dId not state what steps the Employer was expectIng Ms. Edwards to take and there was no eVIdence to suggest to me that a thorough exploratIOn of possible optIOns for resolutIOn had taken place There IS a number of optIOns and certaIn ObVIOUS ones leap to mInd such as resIgnatIOn, dismIssal, divorce, and dIssolutIOn of the Company However, I would hope that the parties are able to find more acceptable alternatIves to these rather drastIc solutIOns. The MInIstry s Corporate Pohcy and Procedures sets out a number of optIOns for the Deputy MInister to consider some of which have already been Implemented [*] They are the follOWIng a) Instruct the public servant to divest himselflherself of the outsIde interest. * b) Instruct the public servant to transfer the outside interest to a neutral third party c) Transfer the publIc servant to another work umt. d) Publicize a potential conflict so that the actual conflict can be aVOIded. e) Temporanlv remove the public servant from those responsibilities which cause the conflict. * f) Permit the public servant to continue with his/her duties but arrange that his/her deciSIOns are pre-audited by his/her supenor 11 g) Accept the resignatIOn of the public servant h) I f the appearance of con fllct IS deemed not to constitute a conflict with the best interests of the Crown, so Il1form the public servant. l'hls IS a lIst of pOSSibIlIties only The optIOns are not restncted to those lIsted. Any resolutIOn wIll no doubt reqUIre both co-operatIon and compromise on the part of the MIl1Istr) the Gnevor and Emergency Consultant ServIces, Il1 the person of Mr Edwards An effort at achieVIng a resolutIOn whIch allows the Gnevor to retaIn her posnIOn and whIch deals With the conflicts, actual and perceived, would, I belIeve, be worthwhIle for both partIes In summary then, I have concluded that, a conflict of Interest does eXist for the Gnevor 111 her commumcatIOns officer positIOn at the Oshawa C.A.C C With respect to that aspect of Emergency Medical Consultants, which Involves the transportatIOn of "stable and non- " I have also determIned that the Employer has not VIOlated Article A of the emergency patients CollectIve Agreement WIth respect to the Gnevor I shall remaIn seIzed of thiS matter In the event that the parties reqUire my aSSistance With regards to the ImplementatiOn of thiS deCISiOn. Dated at4 J;:,-, on__January ~1~_~_ 32