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HomeMy WebLinkAbout1996-2038GARLAND99_07_09 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS S TREET WEST SUlTE600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 2038/96 OPSEU # 96G365 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Ken Garland) Grievor - and - The Crown In RIght of Ontano (MImstry of TransportatIOn) Employer BEFORE Mlchael V Watters V Ice Chair FOR THE Ed Holmes GRIEVOR Counsel Ryder Wnght Blair & Doyle Barnsters & SOlICItorS FOR THE Jonathan D Cocker EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARINGS May 7 13,14 25,26 1998, June 30,1998 March 2, 1999 Apnl29 1999 - 1 - The grievor was dismissed from his employment as a Driver and Vehicle Licence Issuing Clerk at the Downsview Issuing Office on October 2, 1996 The letter of dismissal reads as follows II Dear Mr Garland I have been informed of a recent ministry investigation conducted as a result of suspected breach of public trust The findings of the investigation are that in the course of your duties as a driver and vehicle licence issuing clerk, you performed unauthorized transactions using the vehicle registration database which is in violation of ministry policies and procedures Your actions constitute a serious breach of trust The ministry can no longer rely on you to fulfil the duties of licence issuing clerk Consequently, under the authority delegated to me by the Deputy Minister, your employment is terminated In accordance with Section 22(3) of the Public Services Act, R S 0 1990, Chapter P 47, you are dismissed from the Public Service effective immediately You have the right to grieve your dismissal pursuant to Article 27 8 2 of the Collective Agreement and the Crown Employees Collective Bargaining Act Yours truly, Jennifer D'Angelo for Rudi Wycliffe Assistant Deputy Minister (Acting) II (exhibit #9) - 2 - At this juncture, it should be noted that the signature portion of the above letter suggests on its face that Ms Jennifer D'Angelo signed the letter "for Rudi Wycliffe, Assistant Deputy Minister (Acting) " Hearings were held on the merits of the dispute on May 7, 13, 14, 25, 26, June 30, 1998 and on March 2, 1999 At the hearing of April 29, 1999, the Union advanced a preliminary motion for an Order reinstating the grievor with full redress on the grounds that his dismissal was void ab initio I was led to understand that in the days immediately prior to the hearing of April 29th, the Union was informed by the Employer for the first time that Ms D'Angelo was, in fact, the actual decision maker in this instance Counsel for the Union further advised that he received a copy of the Ministry's Delegation Document (filed as exhibit #38) on April 28, 1999 The Union relied, inter alia, on Reid, 2098/96 (Leighton) in support of the motion The following order was issued' on June 9, 1999 "1 The grievor be reinstated immediately into his former position as a Driver and Vehicle Licence Issuing Clerk, without loss of seniority, wages and benefits, 2 Interest be paid to the grievor on the amount owing under paragraph one ( 1 ) above, 3 This Vice-Chairperson remains seized in the event the parties experience any difficulties in implementing this Order " - - 3 - I undertook to provide written reasons for the Order in due course This Award outlines the reasons relied on for the issuance of the above Order The relevant provisions of the Public Service Act read Power to 22(3) A deputy minister may for cause dismiss from Dismiss employment in accordance with the regulations any public servant in his or her ministry Delegation 23(1) with the consent in writing of his or her of powers, minister, a deputy minister may delegate in deputy writing any of his or her powers under this minister Act to any public servant or any class thereof in his or her ministry Delegation 23(2) With the consent of his or her minister, a of duties, deputy minister may delegate any of his deputy or her duties under this Act to any public minister servant or any class thereof in his or her ministry Regulation 977, Sub-section 4(2) Where the incumbent of a position is unable to act or where a position becomes vacant, the deputy minister may designate a civil servant in the ministry to perform the duties of the position in an acting capacity The Designation Document mentioned above reads, in part " MINISTRY OF TRANSPORTATIQ~AND COMMUNICATIONS MINISTER'S CONSENT FOR DELEGATION OF THE DEPUTY MINISTER'S AUTHORITY Pursuant to Section 23, Subsections 1 and 2, of The Public Service Act, R S 0 1980, Chapter 418, I hereby consent to the delegation by the Deputy Minister of his powers and duties to the public servants or class thereof as more particularly set out in the attached pages The previous - - 4 - authority dated 20th April, 1983, is hereby revoked 87-03-02 Ed Fulton Date Minister DELRGATION OF THE DEPUTY MINISTER'S AUTHORITY Introduction By this document, I have delegated to particular managers within the Ministry the powers which I may exercise and the duties which I have authority to perform under the provisions of the Public Service Act and/or the Collective Agreement with respect to Working Conditions and Employee Benefits Delegation - Extent and Restrictions The powers and duties delegated cannot be further delegated without the Deputy Minister's approval If a delegated official is not available to exercise the required authority, then special authorization must be obtained through the Human Resources Branch for that occasion alone For each item identified in this document, the authorities listed are intended to apply to every incumbent in the positions or types of positions indicated However, an individual's supervisor may restrict that individual from exercising one or more of the authorities which have been delegated to his/her position Notice of such restriction should be given in writing to the affected individual Dismissal from Employment When an employee is to be dismissed for cause, the necessary documentation for the Deputy Minister's signature is prepared in the Human Resources Branch When a Regional Manager or Head Office Manager recommends the dismissal of an employee having more than twelve months service, the recommendation - 5 - requires the concurrence of the appropriate Regional Director, Branch Director, Executive Director or Assistant Deputy Minister before the recommendation is forwarded to the Human Resources Branch TERMINATION/RELEASE FROM EMPLOYMENT EXPLANATION DELEGATION Dismissal Dismiss from employment Assistant Deputy Ministers for cause and deliver a notice of dismissal for cause Dismissal (employees having less than Assistant Deputy Ministers twelve months of service) Executive Directors Dismiss from employment for cause Regional Directors and deliver notice of dismissal for Branch Directors cause Regional Managers Head Office Managers II This document was entered lnto evidence during the cross-examination of Ms D'Angelo Ms D'Angelo is currently the Director of Highway 407 Operations for Canadian Highways Management Corporation At the time material to this case, she was employed by the Ministry of Transportation as the Director of the Licencing and Control Branch She held this position in the period July, 1995 to October, 1997 Ms D'Angelo previously worked as Director of Organizational Development for the Ministry of Natural Resources for eight ( 8 ) years Ms D'Angelo's immediate supervisor in the relevant period was Mr - - 6 - Rudi Wycliffe, Assistant Deputy Minister (Acting) in the Safety and Regulation Division In this capacity, Mr Wycliffe was responsible for overseeing the operation of the Drivers and Vehicles Branch in the Central Region Ms D'Angelo stated that he had been in this position for approximately one ( 1 ) year prior to the grievor's dismissal It was Ms D'Angelo's evidence that Mr Wycliffe asked her to assume his role while he was away on vacation during the last week of September and the first week of October, 1996 Ms D'Angelo testified tha t Mr Wycliffe made the request verbally and that nothing was put into written form in respect of his delegation of authority to her for the period in issue Ms D'Angelo advised that she did not receive any specific instructions from Mr Wycliffe at the time, and that he did not place any limits or restrictions on her ability to perform the responsibilities required in this acting role She understood her duties to be "the full and complete responsibility of the Assistant Deputy Minister of the Safety and Regulation Division" During the last week of September, 1996, while in this acting position, Ms D'Angelo met with Ms Rhonda Clark, the Administrator of the Drivers and Vehicles Licencing Office at Downsview, a representative of the Internal Audit Branch, and a representative of the Employee Relations Office of the Human Resources Branch Ms Clark was the supervisor for the office in which the grievor worked These ~~ - 7 - individuals provided Ms D'Angelo with a verbal briefing, supported by written documents, pertaining to the grievor's performance of his duties More specifically, they advised her that they had gathered evidence suggesting he had failed to comply with certain policies and procedures applicable to the Drivers and Vehicles Branch The above individuals informed Ms D'Angelo that they viewed the grievor's actions as constituting a "threat to the public trust" They further conveyed a sense of urgency to her in the sense that they felt the grievor should not be left in the position Their recommendation was that he be dismissed Ms D'Angelo testified that she reviewed all of the relevant facts and that she assessed the situation to ensure the process used was fair Based on this review and the above recommendation, she decided to terminate the grievor's employment for cause Ms D'Angelo believed his actions amounted to a breach of public trust and that they were sufficiently serious to justify immediate removal Ms D'Angelo indicated that she alone made the decision to dismiss pursuant to her delegated authority She understood that she had the requisite authority to take such action as the Acting Assistant Deputy Minister The letter of dismissal, reproduced above, was issued to the grievor within a matter of days It was prepared by staff in the Human Resources Branch for Ms D'Angelo's signature As noted previously, she ~-_._~~ - 8 - subsequently signed the letter in the following fashion "Jennifer D'Angelo for Rudi Wycliffe Assistant Deputy Minister (Acting)" The third sentence of the letter reads "Consequently, under the authority delegated to me by the Deputy Minister, your employment is terminated" Ms D'Angelo acknowledged that this authority was delegated to Mr Wycliffe initially She added, however, that he "delegated that authority to me" Ms D'Angelo asserted that she had an understanding of the powers and duties which may be delegated through a Deputy Minister She stated that this knowledge was acquired through her prior position with the Ministry of Natural Resources wherein she was responsible for developing the delegation of authority provisions for that Ministry In such position, Ms D'Angelo learned of similar provisions in place in other Ministries Ms D'Angelo testified that she was also aware of the Delegation Document distributed to line managers in the Ministry of Transportation Finally, she stated that she was familiar with the requirements of the Public Service Act vis a vis delegation of authority In cross-examination, Ms D'Angelo was asked the following question "Are you aware of the fact that when someone is delegated as Acting Manager, or appointed as such under the Regulations, that you are designated to perform the duties of the position and not the powers?" I recorded her response as "Not the way I was always instructed to ~ - 9 - perform the duties, it was both" Ms D'Angelo acknowledged she was unaware of a Regulation stating that a person in an acting capacity is only delegated to perform the duties of the position Ms D'Angelo testified that the Deputy Minister's Office knew she was acting as Assistant Deputy Minister in the period material to this case In this regard, she advised that Mr Wycliffe had sent a memo to that effect to staff within the Division and to the Deputy Minister Ms D'Angelo further stated that, during the first week of the acting assignment, she attended an Executive Committee meeting as the acting Assistant Deputy Minister She recalled that the Deputy Minister was present at the meeting Ms D'Angelo met with Mr Wycliffe following his return from vacation She could not specifically recall talking to him about the decision to dismiss the grievor She, nonetheless, believed that she would have done so given it was her practice to review all important decisions taken during such an absence Ms D'Angelo advised that she was not party to any further communications about her decision until the Employer's counsel contacted her on April 28, 1999, this being the day prior to the hearing As previously stated, at the hearing of April 29, 1999, counsel for the Union brought a preliminary motion to have the dismissal vacated ab initio It was his submission the Employer had led no evidence to - 10 - establish that Ms D'Angelo had the authority under the Public Service Ac.:t , the Regulations or the Delegation Document to dismiss the grievor He argued, on the basis of the Reid award, that the termination was void ab initio and that the grievor should be reinstated with full monetary redress and without loss of benefits or seniority At the hearing, the parties agreed that the Union did not have to make an election as to whether to call any evidence before advancing the motion Before outlining the respective arguments in greater detail, it is necessary to review the facts and reasoning in Reid at some length The grievor, Mr Roy Reid, was an Acting Supervisor in the Probationary Service of the Ministry of Community and Social Services His employment was terminated in November, 1996 after certain allegations of sexual harassment and a subsequent investigation A reading of the award discloses that Mr Jack Ray, the Manager of Children's Services, recommended to Ms Barbara Saunders, the Area Manager, that the grievor be discharged following the above-noted investigation While he was acting as Area Manager in place of Ms Saunders, Mr Ray signed the letter of dismissal dated November 8, 1996 Mr Ray did not prepare the letter It was his evidence that the content of same was approved by Ms Saunders The letter included the following statement "By the authority delegated to me by the Deputy Minister ~ - 11 - under Section 23 of the Public Service Act I hereby dismiss you for cause in accordance with Section 22(3) of the Public service Act, effective November 8, 1996 " Mr Ray testified that he had no written instructions from Ms Saunders to effect the discharge Indeed, it seemed to be the substance of his evidence that he did not make the decision Mr Ray was not given written authorization to serve as Acting Area Manager He asserted that such authorization was not required and noted that he had never received same when acting previously in that capacity When the Employer closed its case after thirteen ( 13 ) days of hearings, the Union presented a motion for a non-suit One of the grounds relied on was "the failure of the Employer to introduce evidence establishing that the Employer had properly exercised its statutory authority under section 22 of the ESA to dismlss the Grievor" The Union's initiative was met by an application from the Employer to reopen its case so as to lead evidence that Ms Saunders had been properly authorized by the Deputy Minister to dismiss employees It would appear that counsel for the Employer wanted to introduce the appropriate delegation document, as well as to present the Area Manager's evidence directly The Employer's request was denied as the evidence was available before its case was closed The Board further determined that the Union's motion was timely, as it was not until Mr Ray testified he did not have written authority to terminate Mr Reid that the Union - 12 - learned there "was no written delegation of the Deputy Minister's power to terminate employees" The Board commented as follows with respect to the nature of the Union's motion "The Board was of the view that this ground was actually not grounds for a non-suit motion, but was more in the nature of a preliminary motion that could lead to a finding that the purported dismissal was void ab initio and that if the Board found there was a substantive flaw in the dismissal of Mr Reid, the Board would be without jurisdiction to consider the merits of his case If this was so, then a finding that the dismissal was void ab initio and an immediate reinstatement would be appropriate" (page 5) The arguments with respect to the preliminary motion are set out between pages seven ( 7 ) and thirteen (13 ) of the Reid award The following excerpt conveys the substance of the Union's position "Counsel argued that even if Ms Saunders had the necessary written consent and delegation from the Deputy Minister, evidence which was not tendered to the Board, it is Mr Ray's evidence that he received no delegation in writing from Ms Saunders Counsel argued that while the Ac:t allows an informal process for delegation of duties, thus allowing Mr Ray to assume Ms Saunders duties without written authorization, it specifies that the exercise of a power to dismiss requires two written documents Thus it was not open to Mr Ray to carry out Ms Saunders' delegated power to discharge In Ms Mitchell's submission the Employer should have been able to introduce either a document indicating an appointment of Mr Ray to an Acting position, which appointment included both duties and powers, or, alternatively, a document from Ms Saunders delegating to Mr Ray, as the Grievor's Manager, her powers to dismiss the Grievor, plus the consent of the Minister for her to make such a delegation Mr Ray testified that no such documents exist Counsel argued in conclusion that the Act provides substantive not - - 13 - procedural rights She argued accordingly that if those rights have not been waived the discipline taken in violation of a substantive provision must fail Given the evidence, Counsel argued that the only evidence is that the person signing the dismissal letter had not received the written delegation of the power to dismiss that lS required under the Act. Thus she argued that the Board must exercise its jurisdiction to consider the Act. as an employment related statute under Section 48(12)(j) of the Labour Relations Act (1995) and find that the Employer acted outside its statutory authority Counsel asked the Board to use its broad remedial jurisdiction to fashion an appropriate remedy She argued that the only appropriate remedy is to void the discharge and reinstate the Grievor to his employment with no loss of wages or seniority " (pages 8-9) In response, the Employer's argument included the following "The Employer submitted that it did put evidence before the Board that would allow it to conclude that in discharging the Grievor it complied with Sections 22(3) and 23 of the Act The Employer submitted that the letter of dismissal cities the proper delegations for the authority to dismiss He argued that Mr Ray, who signed the letter on the date of dismissal and for cause dismissed the Grievor on the date that the letter was signed, testified that he had been appointed Acting Area Manager on that date and could exercise all the rights and obligations of the Area Manager Counsel noted that he had sought to reopen the Employer's case to present a delegation document proving the delegated authority from the Deputy Minister to the Area Manager, Ms Saunders, but had not been permitted to reopen his case This document, he stated, would have shown the Board that Area Managers form part of a class that are permitted to dismiss under Section 22(3) of the ~t He noted further that the appointment of civil servants to an acting capacity is provided for at sub-section 4(2) of Regulation 977 to the Act He argued that there is no requirement that this appointment be in writing, thus the delegation documents would have shown that this power had been delegated to first line management which includes Area Managers, and thus Mr Ray had the authority to dismiss Mr Reid Counsel also argued that the failure to prove a proper statutory authority "is a procedural flaw and not a substantive - 14 - flaw" In his submission a failure to show statutory authority to dismiss Mr Reid does not in and of itself lead to a substantial wrong or miscarriage of justice " (page 10) The Board in Reid unanimously decided that Mr Ray was not properly authorized to terminate the grievor's employment and, therefore, the Employer had breached sections 22 and 23 of the Eublic Service Act, rendering the termination void ab initio The grievor was, accordingly, ordered reinstated without any loss of seniority, wages and benefits The relevant part of the decision reads "Our reasons for coming to this decision are as follows The general power to dismiss a public servant for cause is given by Sub-section 22(3) of the Act to the Deputy Minister of each Ministry A Deputy Minister is permitted, under Section 23(1), with the written consent of his or her Minister, to delegate this power in writing to any public servant or any class of public servants The legislature clearly required the formality of written delegation for a reason The dismissal of a public servant must only be carried out by those who have been properly authorized to exercise this discretion And proper authorization must be in writing This is a substantive right provided by the Act If a public servant is dismissed by someone not properly authorized as required by the Act, the termination is ultra vires and necessarily void ab initio There was no evidence tendered by the Employer that Mr Ray was properly authorized under Section 23(1) of the Act to dismiss Mr Reid The letter which purported to terminate Mr Reid's employment stated By the authority delegated to me by the Deputy Minister under Section 23 of the Public Service Act I hereby dismiss you for cause in accordance with Section 22(3) of the Public Service Act, effective November 8, 1996 - 15 - However, Mr Ray acknowledged in his evidence that he did not have written authority from the Deputy Minister under Section 23 of the Act This letter is not evidence of a proper delegation of the power to dismiss Given Mr Ray's viva voce evidence that he was not so authorized, it is simply not true Further, Mr Ray did not have written authority or even oral instructions from Ms Saunders to dismiss Mr Reid Further there is no evidence to show that Mr Ray was appointed under sub-section 4(2) of the Regulation 977 which provides Where the incumbent of a position is unable to act or where a position becomes vacant, the deputy minister may designate a civil servant in the ministry to perform the duties of the position in an acting capacity But even if Mr Ray was so appointed, this provision refers only to the duties of the position and not the powers, such as the power to dismiss After reviewing the evidence and the provisions of the Act, the Board concluded that there had been no delegation of power to dismiss to Mr Ray While the ~cL requires the consent and delegation of the power to dismiss be in writing, we agree with the Board in Villella which held that there may be a "presumption of validity in the employer's exercise of this statutory authority," and unless there is a "demonstration of irregularity," then a Board can take it that a person signing the termination letter was doing so with the authority properly delegated to that individual As noted above, in the case before us, there is clear evidence of irregularity The letter that Mr Ray signed stated that he had the authority, but his evidence was that he did not have written authority to dismiss Mr Reid " (page 13-15) In argument, counsel for the Union initially reviewed the effect of sections 22 and 23 of the Public Service Act He noted that a Deputy - 16 - Minister has the "power" to dismiss an employee for cause in accordance with the regulations pursuant to section 22(3) Counsel emphasized that such a dismissal represents the exercise of a power, and not a duty, and that, accordingly, the delegation of such authority is subject to section 23(1) and not section 23(2) of the Act. The former section requires two ( 2 ) written documents, these being the written consent of the Minister authorizing delegation by a Deputy Minister and the Deputy Minister's written delegation of powers to any public servant or any class thereof The latter section does not require the consent or delegation to be in written form when it is a duty which is being delegated Counsel submitted that the legislation clearly contemplates a distinction between powers and duties Counsel for the Union argued that the above-mentioned distinction is found, as well, in subsection 4 ( 2 ) of Regulation 977 Again, that provision states Where the incumbent of a position is unable to act or where a position becomes vacant, the deputy minister may designate a civil servant in the ministry to perform the duties of the position in an acting capacity Counsel submitted that, on a plain reading, this provision does not permit the designation of a civil servant to perform the powers of a position in an acting capacity Reliance was placed on the Board's finding in Reid that Regulation 977" refers only to the duties of the - - 17 - position and not the powers, such as the power to dismiss" (page 14) From the perspective of the Union, the fact Ms D'Angelo was verbally told to assume the role of Acting Assistant Deputy Minister for two ( 2 ) weeks did not give her the right to perform the powers of the position It was the Union's position, simply put, that the Employer had not led any evidence to show that Ms D'Angelo was delegated both the powers and duties of the position assumed Reference was also made to the Delegation Document filed by the Union during the cross-examination of Ms D'Angelo Counsel noted that thereunder the Deputy Minister has delegated the power to dismiss an employee having more than twelve ( 12 ) months of service to "Assistant Deputy Ministers" This grievor has been employed by the Ministry of Transportation since 1977 Counsel stressed that Ms D'Angelo was an Acting Assistant Deputy Minister for two (2) weeks and that there was no evidence she was delegated the powers of an Assistant Deputy Minister for that period It seemed to be the Union's position that, in the absence of a specific delegation of the power to dismiss, Ms D'Angelo in her acting capacity could not exercise the authority delegated to Assistant Deputy Ministers under the Delegation Document Counsel for the Union noted that the letter of termination was signed by Ms D'Angelo "for Rudi Wycliffe, Assistant Deputy Minister (Acting)", and that such letter states "under the authority delegated to ~--- - 18 - me by the Deputy Minister, your employment is terminated" On his reading, it appeared on the face of the document that Mr Wycliffe had acted pursuant to the authority delegated to him by the Deputy Minister Counsel indicated that he first learned Mr Wycliffe was not the actual decision maker just prior to the hearing when told Ms D'Angelo would be called as a witness for that purpose He emphasized it was only on the giving of her evidence that the Union had an opportunity to explore and challenge the scope of her authority Additionally, counsel advised that he did not receive the Delegation Document from the Employer until April 28, 1999, the day prior to the hearing He asserted that he was unable to confront Ms D'Angelo with the document until she was presented as the actual decision maker In the circumstances, counsel submitted that the Union's motion was timely In surmnary, it was the Union's position the Employer had failed to introduce evidence that it properly exercised its statutory authority under the ~ublic Service Act and Regulations in the discharge of this grievor On the basis of Reid and Blake et al , 1276/87 et al ( Shime ) , I was asked to irmnediately reinstate the grievor to his former position without loss of wages, benefits and seniority and with interest In response, counsel for the Employer noted that pursuant to section 23(1) of the Public Service Act, a Deputy Minister may delegate in writing any of his or her powers to any class of public servant with - 19 - the written consent of the Minister He submitted that these requirements were satisfied in this case as evidenced by the Delegation Document More specifically, counsel referenced the fact that the document delegates the power to dismiss employees, such as the grievor, to "Assistant Deputy Ministers" On his interpretation, this would encompass a person like Ms D'Angelo who was serving as an Acting Assistant Deputy Minister at the time in question It was counsel's submission that the Delegation Document does not differentiate between permanent and non-permanent members of the class He further argued that Regulation 977 is inapplicable to the instant dispute, as, on his reading, it only requires a designation where a civil servant is to perform the "duties" of a position in an acting capacity Counsel asserted that there is no provision requiring a Deputy Minister to designate where the incumbent lS unavailable and another employee is asked to perform a power, or powers, in an acting capacity Counsel for the Employer submitted that the circumstances in Reid were different from those existing here He distinguished RaLd on the following three ( 3 ) grounds ( i ) in Reid, Mr Ray testified he did not in fact have the power of an Area Manager to dismiss whereas, in this case, Ms D'Angelo believed she had such power, (ii) Mr Ray testified that he did not exercise a delegated power to dismiss, whereas Ms D'Angelo clearly exercised such a power when she decided to dismiss the grievor for ~ - 20 - cause, and (iii) in Reid, the Employer's counsel was unable to put the delegation document into evidence and, as a consequence, the Board made its decision without the benefit of knowing what delegation was made by the Deputy Minister with the Minister's consent Counsel noted that, in this case, the Delegation Document was before the Board in the form of exhibit #38 Counsel for the Employer further argued that the Union had not taken issue with respect to Mr Wycliffe's power, as an Acting Assistant Deputy Minister, to sign a letter of termination such as the one delivered to this grievor He suggested that, in substance, there was no distinction between the status of Mr Wycliffe and Ms D'Angelo for purposes of exercising a power to dismiss under the Public Service Act It was the thrust of his submission that the Union should have raised the issue as to the ability of an Acting Assistant Deputy Minister to engage in such action at a much earlier stage in the proceedings Counsel argued that because of this failure to raise the issue in a timely fashion, the Union should be estopped from advancing it at this late date Finally, it was counsel's assertion that any irregularity existing here was merely a technical, in contrast to a substantive, defect which could be cured by the Board The Employer relied on the following authorities in support of its position Adams. , 140/77 (Adams) , Villella, 1662/96 (McKechnie) , and Re Putnoki and Public Service Grievance Board (1975), 7 0 R (2d) 621 (Ont Div Ct ) ~- - 21 - In reply, counsel for the Union indicated he was not taking issue with respect to Mr Wycliffe's power to dismiss He noted that there was no evidence as to whether Mr Wycliffe had authority to dismiss under the Eublic Service Act Counsel raised the possibility that there might "be a letter addressed to him on that issue" Counsel stated, rather, that the focus of its case was whether Ms D'Angelo possessed the power to dismiss He indicated this only became an issue when the Union learned that she, and not Mr Wycliffe, made the decision to dismiss the grievor Counsel emphasized that before that development, the Union did not know Ms D'Angelo was an Acting Assistant Deputy Minister Instead, it simply believed she had signed the letter for Mr Wycliffe In the final analysis, counsel maintained that the issue of Mr Wycliffe's authority was a red herring Counsel for the Union disputed the Employer's argument to the effect that ReSJUlat.ian 977 was irrelevant to the resolution of this dispute He noted that the Regulation only references duties and suggested that powers would have been addressed therein if it had been intended that employees in an acting capacity could be designated to exercise same Counsel further asserted that this aspect of the Employer's argument was contrary to the reasoning expressed in Reid He repeated that the Union's motion was timely as it was "only put on alert" when told Ms D'Angelo would testify as the decision maker On ~ - 22 - his assessment, the question of timing "kicked in" when Ms D'Angelo gave evidence that she, in fact, made the decision to dismiss Lastly, counsel argued that the defect was a substantive matter going to jurisdiction rather than merely a minor error which could be rectified It was submitted, therefore, that the cases relied on by the Employer were distinguishable Ms D'Angelo's normal position at the time material to this dispute was Director of the Licencing and Control Branch The evidence is that Mr Wycliffe verbally asked her to assume his position as Acting Assistant Deputy Minister in the Safety and Regulation Division while he was absent on vacation for a period of two ( 2 ) weeks It is clear that he did not delegate his authority to her in writing nor did he provide Ms D'Angelo with specific instructions with respect to the scope of her responsibility while acting for him Ms D'Angelo testified she understood that she had "full and complete" responsibility Her subjective belief, however, cannot be determinative of this case Similarly, the dispute does not turn on whether the Deputy Minister may have known, or been advised, that Ms D'Angelo was acting for Mr Wycliffe Rather, the resolution of this matter requires an analysis of sections 22(3) and 23(1) of the Public Service Act, the Delegation Document, and subsection 4 (2 ) of Regulation 977 in order to assess whether Ms D'Angelo possessed the required authority to dismiss the - 23 - grievor In one respect, this case is unlike Reid for here Ms D'Angelo readily acknowledged that she was in fact the ultimate decision maker Section 22(3) of the Public Service Act bestows on a Deputy Minister the power to dismiss a public servant for cause Both parties agreed that Ms D'Angelo purported to exercise such a power when she dismissed the grievor The delegation of this power is provided for by section 23(1) of the Public Service Act and not by section 23(2) The latter relates to the delegation of the duties of a Deputy Minister A reading of section 23 discloses that powers and duties are treated differently under the Act in respect of the process required for their delegation More particularly, the delegation of a Deputy Minister's powers requires two (2) written documents whereas no written consent or delegation is needed on the delegation of duties I note, in this regard, that pursuant to RejJulatiun 977, a civil servant may be designated to perform the duties of a position where the incumbent is unable to act It seems that such designation may be effected informally as the Regulation does not contemplate a requirement it be in writing This differential treatment of powers and duties reflects, in the context of a discharge, the importance of the act and the seriousness of the consequences Section 23(1) of the Public Service Act places two ( 2 ) preconditions on the delegation of powers by a Deputy Minister ~ - 24 - Firstly, the Minister must provide his or her written consent Secondly, the delegation by the Deputy Minister to a public servant or any class thereof must be in writing This case is unlike Reid in another respect for here the Employer's Delegation Document is before the Board The aforementioned document satisfies both of the preconditions set out above as it provides for the following ( i ) the Minister's written consent for the delegation of a Deputy Minister's powers and duties to public servants or a class thereof, and (ii) the written delegation of the Deputy Minister's authority to dismiss an employee with more than twelve (12) months service for cause to a class described as "Assistant Deputy Ministers" It lS clear from the evidence that the Deputy Minister in this case did not make a specific and written delegation of powers to Ms D'Angelo, including the power to dismiss No evidence was tendered by the Employer as to such a delegation having been made The question which arises, therefore, is whether Ms D'Angelo had the power to dismiss the grievor for cause pursuant to the terms of the Delegation Document Put another way, did she fall within the class of "Assistant Deputy Ministers" when she was acting for Mr Wycliffe? The threshold question is whether the class of "Assistant Deputy Minister's", as described in the Delegation Document, was intended to include persons acting as such, potentially in a temporary and short - 25 - term basis as here, or whether it was directed at those employees with a more permanent attachment to the position I consider it material that the Delegation Document, under the heading 'Delegation-Extent and Restrictions' , states that the authorities listed are intended to apply to every "incumbent" in the position or types of positions indicated In my experience, the term incumbent is corrunonly taken to mean the person normally or regularly occupying the position Such a meaning is reflected in subsection 4(2) of Regulation 977 which provides that the Deputy Minister may designate a civil servant to perform the duties of a position in an acting capacity where the incumbent of same is unable to act Accordingly, the use of the word "incumbent" in the Delegation Document suggests that an employee acting as an Assistant Deputy Minister for a short period of time, while the regular occupant of the position is away on vacation, was not intended to fall within the specified class In the context of this case, I have some real difficulty in viewing Ms D'Angelo as an incumbent for purposes of the document I am attracted to this interpretation as it is consistent with a plain reading of subsection 4(2) of Regulation 977 My conclusion is further reinforced by the complete lack of any reference in the Delegation Document to employees working in an acting capacity I think it more likely than not that there would have been specification of such employees if there was an intention to capture them within the - 26 - class of "Assistant Deputy Ministers" I consequently find that Ms D'Angelo did not fall within the class specified by the Deputy Minister's delegation of powers under section 23(1) of the Public Service Act It follows that she did not possess the requisite authority to dismiss the grievor As stated, subsection 4(2) of Regulation 977 provides that "where the incumbent of a position is unable to act or where a position becomes vacant, the deputy minister may designate a civil servant in the ministry to perform the duties of the position in an acting capacity" The language of the Regulation suggests that, without other authority, the employee designated to perform In an acting capacity may only perform the duties and not the powers I refer to other authority, as it would seem that the Deputy Minister, pursuant to section 23(1) of the Euhlic Service Act, could delegate in writing the power to dismiss for cause to a specific public servant regardless of whether he or she was serving in an acting capacity As previously mentioned, no evidence was led by the Employer that such a delegation was made in favour of Ms D'Angelo in this case What is abundantly clear is that Ms D'Angelo could not have acquired the power to dismiss under Regulation 977 I note, In passing, that no evidence was presented as to a designation even in respect of the duties of the acting position Finally, I consider that the presence of subsection 4(2) of Regulation 977 supports - - 27 - my interpretation of the Delegation Document Simply put, there would be no need for such a provision if an acting employee in an Assistant Deputy Minister position, or otherwise, had the same delegated authority as the incumbent In summary, no evidence was advanced that the Deputy Minister made a specific delegation of his or her powers to Ms D'Angelo under section 23(1) of the Public Service Act Rather, the evidence, in the form of the Delegation Document, discloses that the Deputy Minister delegated the power to dismiss a senior employee to a class described as "Assistant Deputy Ministers" I have determined that such class did not encompass Ms D'Angelo while she was replacing Mr Wycliffe during the period of his vacation Additionally, for reasons stated above, Ms D'Angelo could not acquire the power to dismiss under Ragulation 977 In the final analysis, there is no evidence before me that she possessed the authority to dismiss the grievor The only evidence on the point is that Mr Wycliffe verbally asked her to act in his place That request, given the statutory requirements, was obviously insufficient to transfer the requisite authority to her The fact that Ms D'Angelo, and not Mr Wycliffe, was the actual decision maker was conveyed to the Union shortly before the hearing of April 29, 1999 Union counsel was then informed Ms D'Angelo would be called to give evidence with respect to the circumstances surrounding - 28 - the making of the decision Her role was confirmed when she testified that she made the decision to dismiss the grievor for cause, without any input from Mr Wycliffe, following the meeting with Ms Clark and the representatives from the Internal Audit and Human Resources Branches Prior to these events, I think the Union could reasonably believe Mr Wycliffe was the decision maker given the content of the letter of termination and the form of the signature thereon In the circumstances, it is understandable why the Union did not question Mr Wycliffe's authority at the outset I note, in this regard, that even if he was an Acting Assistant Deputy Minister, Mr Wycliffe could have received a specific delegation of powers in written form from the Deputy Minister sufficient to satisfy the requirements of section 23(1) of the Public service Act There is no evidence before me as to whether that step was taken or not I consider the Employer's reliance on the Union's failure to challenge Mr Wycliffe's authority as immaterial In my judgment what is more significant is the fact that he ultimately turned out not to be the decision maker I also consider it significant that the Union did not receive the Delegation Document from the Employer until April 28, 1999 Up to that point in time, the Union had no reason to be concerned with the extent of Ms D'Angelo's authority for it did not know she was the effective decision maker On receipt of the document, together with the advice - - 29 - that Ms D'Angelo made the decision, the Union was alerted to the fact that Directors, such as Ms D'Angelo, did not fall within the class authorized to dismiss for cause It was at that juncture that the more specific issue as to the extent of her authority arose As noted, the details of same were not made fully apparent until she gave her evidence at the hearing I have, accordingly, concluded that the Union's motion is timely This conclusion is consistent with Reid There, a similar motion was found to be timely as it was not until Mr Ray testified he did not have written authority to terminate Mr Reid that Union counsel learned there was no written delegation of the Deputy Minister's power to terminate employees for cause I n Adams., the Employer failed to establish a proper delegation of the Deputy Minister's authority to dismiss to the civil servant who had dismissed the grievor The Board found that the Union's failure to "raise this issue at the time of the dismissal or at the outset of the hearing estopped the Union from raising it later" In the Board's view, the Union should have raised the issue at least at the very beginning of the hearing and thereby put the Employer on notice It determined that, having failed to do so, the Union was "estopped from seizing upon an absence of evidence it contributed to" In my judgment, the present case is distinguishable from Adams In - 30 - that case, the preliminary objection was raised by the Union after both parties had closed their cases In this instance, the motion was made after the Employer closed its case but before the Union started to call its evidence It is clear from a reading of Adams that the Board was concerned about prejudice caused to the Employer Here, there is no similar prejudice as the Union advised the Employer of its intent to proceed with the motion prior to Ms D'Angelo's evidence The Employer, therefore, was alerted to the issue and had a full opportunity to adduce evidence on same prior to closing its case As a consequence, the Employer was not detrimentally affected as was the Employer in Adams, as here the Union did not contribute to the absence of evidence I have not been persuaded that the Union should be estopped from pursuing the motion it advanced in this instance In tillella , the Union raised a preliminary objection that the discharge should be found void ab initio because of certain defects in the delegation document More particularly, the Deputy Minister had failed to date the document and it mistakenly referenced section 23(3) of the Public Service Act instead of section 22(3) The Union's objection was dismissed as the problem with the date could be cured in the course of the hearing before the Board and the inclusion of the wrong section number was merely a typographical error Villella is clearly distinguishable from the present dispute as there was no doubt - 31 - in that instance that the decision maker acted pursuant to proper authority The Union's complaint was directed, rather, at technical defects with the delegation document Here, no such defects exist The issue raised relates to the absence of evidence that Ms D'Angelo had the authority to dismiss the grievor I consider this to be a substantive, rather than a technical, issue and agree with the comment in Reid that it is one going to fundamental jurisdiction In Putnoki, the Union argued before the Divisional Court that the Board's decision upholding the grievor's dismissal should be quashed In the course of the proceedings, the Union advanced the following two ( 2 ) arguments (i) there was an improper delegation of the power to suspend as the consent of the Minister to delegate that authority was signed by a Minister who had been replaced by another Minister by the time of the suspension, and (ii) the Board lost jurisdiction because there was no pre-hearing before an official authorized by the Deputy Minister prior to the dismissal as required by the Regulations With respect to the first argument, the court found that the consent of the initial Minister continued to be valid until revoked or varied by the incoming Minister With respect to the second argument, the Court noted that the grievor had withdrawn from the hearing because he felt it was premature It determined that a hearing, in fact, was held from which the grievor voluntarily withdrew without adequate reason The Court - 32 - further stated that even if a hearing had not been held, subsequent proceedings before the Board were not vitiated by prior defects in the internal proceedings of the Ministry In my judgment, putnoki is distinguishable for the same reasons as is Villella Additionally, I fail to see how a full hearing on the merits could cure the lack of authority at the time the dismissal was effected I find that the authorities relied on by the Employer are all distinguishable from the instant dispute As was the case in Reid, I reject the Employer's submission that the flaw was merely a defect in form or a technical irregularity that did not lead to a substantial wrong or miscarriage of justice As indicated, I consider that the issue raised is a matter of substance depriving me of the jurisdiction to proceed further with the merits The Employer, in my judgment, failed to introduce evidence to establish it properly exercised its statutory authority to dismiss the grievor For that reason, the dismissal must be treated as void ab initio For these reasons, I issued the Order of June 9, 1999 which was reproduced earlier in this award - 33 - Dated at Windsor, Ontario this 9th day of July,1999 fff) '-l wOJ1ii:s Michael V Watters Vice-Chair