HomeMy WebLinkAbout1996-2098REID98_08_17
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
,
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPfE (416) 326-1396
GSB # 2098/96
OPSEU 96I039
. IN THE MAlTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Roy Reid)
Grievor
- and -
The Crown in Right of Ontario
(Mimstry of Commumty and SOCIal Servtces)
Employer
BEFORE D.J.D Leighton, Vice-Chair
E. Seymour Member
D Montrose Member
FOR THE E.M. Mitchell
UNION Counsel
Koskie & Minsky
Barristers & SoliCItors
FOR THE J Smith
EMPLOYER Counsel, Legal Servtces Branch
Mimstry of Commumty & SOCIal Servtces
HEARING April 15, 1997
May 6, 7, 9, 26, June 2,3,4,23, 1997
August 18, 19,21,22,26, December 19, 1997
I
INTRODUCTION
Mr Roy Reid was an Actmg Supervisor in the ProbatIOnary Service of the Mimstry of
Commumty and SOCIal ServIces in the summer of 1996 After certam allegatIOns of sexual
harassment and a subsequent investigation, the Employer terminated Mr Reid's employment
on November 8, 1996 Mr Reid filed a grievance with the Board WhICh came onto hearmg on
.
Apn115, May 6, 7,9 and 26, June 2,3,4,23, August 18,19,21,22 and 26 of 1997 After
the Employer closed its case on August 2200, the Union presented a motion for non-suit to the
Board arguing that the Employer had not made out a prima fade case of dIsmIssal for cause
for the following reasons.
i) Delay between the Employer's knowledge of, and inactIOn about, some
conduct which may have required action (whether counselling or
discipline), and the Employer's subsequent discharge of the Gnevor,
based, in part, on that conduct.
ii) Failure of the Employer to call the decision maker to gIVe testImony
before the Board By calling only the female witnesses to the conduct
and a manager who made a recommendatIOn to dIscharge, whIch that
WItness testIfied was not the sole cntena conSIdered by the Employer,
the Employer has asked the Board to become a decision maker in the
workplace, rather than exerCIse its JunsdIction under the CECBA to
deCIde a "dIfference" between the partIes
ni) The failure of the Employer to mtroduce eVIdence establishing that the
Employer had properly exercised its statutory authority under Section 22
of the PSA to dIsmISS the Gnevor
iv) The failure of the Mimstry to follow ItS own gUIdelines and the
guidelines m the collective agreement in handlmg allegatIOns of sexual
harassment.
Union Counsel asked to make the non-suit motion WIthout havmg to elect whether to call
eVIdence After hearing the oral submissions of the parties, the Board deCIded unanImously
Page 2 of 17
I
I
that we would follow previous Grievance Settlement Board deciSIOns which had not required
the movIng party to elect to call evidence and we would proceed to hear the argument on the
non-sUIt motion. OPSEU (Faler) and MmIstry of Correctional ServIces [1990] G S B 218/89,
OPSEU (GIbson, Patterson) and [Ministry of CorrectIonal Services] G S B 320/93, OPSEU
(Gallagher) and Ministry of Correctional Services [1995] G S B 493/94 We were persuaded
that in thIS particular case, after thirteen days of hearings, the proceeding would not be unduly
prolonged if the Union was not required to elect. If the non-suit motion was granted the
hearing would be substantIally shortened. The parties had agreed that we needed at least seven
to ten more days to finish the case If the motion was demed, we indicated that we would not
provide reasons, in order to avoid unfairness.
The Union proceeded with a substantial argument to support its non-suit motion on the
afternoon of August 22 The Employer then asked for an adjournment to August 26 in order
to prepare its argument in response to the non-suit motIOn. The Board granted the
adjournment on the 2200 and the adjournment of August 25th.
When the Board reconvened on August 26, the Employer made a motion to re-open its
case Counsel for the Employer, Mr Smith, argued that there were not sufficient grounds to
grant the non-SUIt, but nevertheless wanted to re-open Its case to proVIde the Board WIth proof
that the Deputy Minister had properly authorized the Area Manager, Ms. Barbara Saunders, to
dismiss employees and the testImony of Ms Saunders herself He argued that there had been
no challenge by the Union as to any lack of authority or Improper delegation In opemng
statement.
Page 3 of 17
Counsel argued further that the decIsion maker was Mr Jack Ray He argued that the
Board should consIder the evidence in its "tOtalIty," and find that it was Mr Ray who made
the decIsion to terminate Mr ReId. Mr Smith argued this despite the fact that Mr Ray
testIfied in eVIdence that he had not made the deCISIon to termmate Mr ReId He argued
further that we could allow the motion to reopen its case because It was a matter of form not
.
substance and there would be no prejudice to the Union.
Ms. MItchell argued for the Umon that It would be an abuse of process to allow the
Employer to re-open Its case at this point m the proceedings. She said that the evidence which
the Employer now sought to mtroduce was not new Ms Mitchell argued further that the
umon couldn't notIfy the Employer m advance about the Issue of improper delegatIon because
It did not know untIl Mr Ray testified that there was a problem with delegatIOn of authonty to
him. She noted that she had cross-examined Mr Ray extensively on whether or not he had
been authorized to make the decision to terminate Mr ReId She said that not only was Mr
Ray candId that he was not given written authority to make the terminatIon, but he testIfied
that he dId not make the deCIsion.
Counsel argued that the Employer had a "free look" at the Umon's theory of the case
WhICh overlaps substantIally with the non-suIt motion and that it would be highly preJudIcIal to
the Union to allow the Employer to re-open at thIS pomt. Thus she asked us to exerCIse our
dIscretion and deny the Employer's request to re-open the case
After careful consideration of the submISSIOns of the parties the Board deCIded
unanImously to deny the Employer's request to re-open its case and submIt further evidence
The Board was of the VIew that the request to re-open was not timely The evidence was
Page 4 of 17
I
aVailable before the case closed. It was not merely an oversIght or simply a procedural matter
Moreover, it was clear that Ms. Mitchell's motion was tImely and that it was not until Mr
Ray testified that he did not have wntten authonty to termmate Mr ReId, that she learned that
there was no written delegation of the Deputy Mmister's power to termmate employees The
Employer closed its case knowmg Mr Ray's evidence
The Board proceeded to hear substantial argument from the Mimstry, and then reply
argument from the Umon on the non-suIt motion, After the hearmg we asked for addItional
written submissions on the issue of whether the Employer had properly exercIsed its statutory
authority under Section 22 of the Public Service Act (the Act) in dismissmg the Gnevor The
Board was of the VIew that this ground was actually not grounds for a non-suit motion, but was
more m the nature of a prelimmary motIon that could lead to a findmg that the purported
dIsmIssal was VOId ab initio and that If the Board found there was a substantIve flaw m the
dismissal of Mr Reid, the Board would be without Junsdictlon to consIder the ments of hIS
case If this was so, then a findmg that the dIsmissal was VOId ab initio and an immediate
rem statement would be appropnate
After reviewmg the submIssions of the partIes on thIS pomt, the Board deCIded
unanimously that the dismissal of Mr ReId was void ab initio An order was made by the
Board on October 17, 1997 remstatmg the Grievor WIth no loss of senionty, wages or benefits
The Board was asked to reconvene on December 9, 1997 m order to aSSIst the partIes
WIth implementmg the order Subsequently the Board was mformed that the parties had settled
their differences and the case was closed Since the matter was settled between the parties, no
reasons were issued at that tIme In late June of 1998 it was brought to the Board's attention
Page 5 of 17
.
that further difficulties had arisen between the parties and that our reasons for remstatmg Mr
ReId would be necessary
The Evidence
Mr Jack Ray, who at the time in question was Manager of ChIldren's ServIces with the
.
Mimstry, testified that he recommended to Ms. Barbara Saunders, Area Manager that Mr
Reid be discharged followmg the mvestIgatIon mto certam allegatIons agamst Mr ReId of
sexual harassment. It was Mr Ray's evidence that hIS recommendatIon was based on the
contents of the Investigator's report. Mr Ray also stated that Ms Saunders would have had
input from the Legal Department and from Human Resources. Mr Ray testified that he did
not make the decISIOn to dIscharge Mr ReId, although Mr Ray signed the dismissal letter
dated November 8, 1996 which terminated Mr Reid's employment with the Ministry The
dismissal letter states
By the authority delegated to me by the Deputy MInIster under SectIOn 23 of the
Public ServIce Act I hereby dismISS you for cause m accordance WIth Sectlon
22(3) of the PublIc ServIce Act, effective November 8, 1996
ThIS letter was signed designating Mr Ray as the Actmg Area Manager
However, in cross-examination Mr Ray stated that he did not draft the termination
letter and he could not explain why it only referred to seven complamants and not the ten that
were referred to In the investigator's report. He did not know how long he acted for Ms.
Saunders, or why he was in the Acting position. Mr Ray testified that he had no written
mstructions from her to carry out the discharge His response to the question of Union
Page 6 of 17
Counsel "DId she know that you were going to temunate Mr Reid?" was answered "She
would have approved the letter" Mr Ray was asked "How did you know that you had
authority to terminate Mr Reid?" Mr Ray answered "She would have approved the letter in
consultatIOn with Human Resources." Imtially his evidence appeared to rest on an assumptIOn
that Ms. Saunders "would have" approved the letter Then he testified he knew she had
.
approved the letter
Mr Ray could not remember why he didn't wait for Ms Saunders to return before
setting up the meetmg for November 8, when Mr ReId was termmated. He Said there was
some concern about keeping Mr Reid waiting any longer for the Employer's decision on his
discipline Mr Ray also acknowledged that he was aware of the reqUirements of the Act.
Mr Ray's evidence m re-examinatIOn was that he did not need written authOrIzation to
take over as Acting Area Manager and that he never had written authOrIzation at any time
when he acted for her m the Acting position.
The Union's Submission
The Dmon submItted that the Employer had called no evidence from which the Board
could conclude that it had complied with SectIOns 22(3), 23(1) and 23(2) of the Act in
I
dischargmg Mr ReId These sections provIde as follows
22(3) A Deputy Mimster may, for cause, dismISS from employment m
accordance WIth the regulatIOns any publIc servant m hIS or her
Mimstry
23(1) With the consent m writing of hIS or her Mimster, a Deputy Minister
may delegate in writmg any of his or her powers under thIS Act to any
publIc servant or any class thereof m hiS or her Mimstry
23(2) With the consent of hIS or her Mmister, a Deputy Mimster may delegate
Page 7 of 17
I
any of hIS or her dutIes under this Act to any publIc servant or any class
thereof m hIS or her Mimstry
Counsel argued that the Act is straightforward the power to dismISS a publIc servant for cause
is a "power" given by law to the Deputy Minister A Deputy Minister has the discretIOn to
delegate that power m writing to any other persons in the Mmistry as long as he or she has
consent in wntmg to do so from the Mimster In contrast, the Act also provIdes that "dutIes"
of the Deputy Mimster may be delegated with the consent of the Minister However, neither
the consent nor the delegatIon of a duty need to be m writmg
Counsel argued that even if Ms. Saunders had the necessary written consent and
delegation from the Deputy Mmister, evidence which was not tendered to the Board, it is Mr
Ray's eVIdence that he received no delegation m writing from Ms. Saunders Counsel argued
that whIle the Act allows an mformal process for delegatIOn of dutIes, thus allowmg 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 indicatmg an appointment
of Mr Ray to an Acting position, which appointment included both duties and
powers, or, alternatIvely, a document from Ms. Saunders delegatmg to Mr
Ray, as the Gnevor's Manager, her powers to dismiss the Gnevor, plus the
consent of the Minister for her to make such a delegation. Mr Ray testified
that no such documents eXISt.
Counsel for the Union argued further that the employment of Mr Reid as a public
servant is governed by two documents. the collective agreement with the Union and the Act.
Public servants withm the bargaining umt represented by a trade umon not only have the
protection of their collective agreements and recourse to settlement by arbitration before the
Page 8 of 17
Board pursuant to Crown Employees Collective Bargaining Act, but they also have the
protection of the Act. Counsel referred the Board to several decisIOns on the delegatIOn of
authority including OPSEU (M Chow) and Ministry of Labour [1987] G S B 2004/86,
OPSEU (Sandham) and Ministry of Health [1992] G S B 802/92, Putnoki and PublIc Service
Grievance Board [1975], 70 R. (2nd) 621 (Ontario Divisional Court), OPSEU (Weisenberg)
.
and Ministry of Correctional ServIces [1982] G S B 31/82, OPSEU (Villella) and the
Mimstry of the Solicitor General [1997] G S B 1662/96 (intenm deciSIOn)
Counsel argued further that while no Board has yet mvalIdated a dIsmIssal because of a
VIolation of the Act, no other panel has been faced with the complete lack of evidence of
appropnate delegation and consent. She argued that it was clearly wIthm the Board's
jurisdIction to void the diSCIpline for the faIlure to comply with the Act when the eVIdence was
completely lacking
Counsel argued in conclusion that the Act provides substantIve not procedural rights
She argued accordmgly that if those rights have not been Waived the diSCipline taken m
VIOlatIon of a substantive provision must fall GIven the eVIdence, Counsel argued that the
only eVIdence IS that the person signmg the dismissal letter had not received the written
delegation of the power to dismISS that is required under the Act. Thus she argued that the
Board must exercise Its junsdiction 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 appropnate remedy IS to void the
dIscharge and remstate the Gnevor to his employment with no loss of wages or senionty
Page 9 of 17
Employer's Submission
The Employer submitted that It did put eVIdence before the Board that would allow It to
conclude that in discharging the Gnevor It complied with SectIons 22(3) and 23 of the Act.
The Employer submitted that the letter of dismissal cites 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 Gnevor on the date that the letter was signed, testified that he had
been appomted 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 Act. 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 appomtment be m
writmg, thus the delegation documents would have shown that this power had been delegated
to first hne management which mcludes Area Managers, and thus Mr Ray had the authority to
dismISS Mr Reid
Counsel also argued that the failure to prove a proper statutory authonty "IS a
procedural flaw and not a substantive flaw" In hIS submISSIon a failure to show statutory
authonty to dismiss Mr Reid does not in and of itself lead to a substantial wrong or
mIscarriage of justice The evidence of Mr Ray showed that the Employer had ordered an
mvestigation and that the Gnevor was proVIded ample opportumty to respond to the allegations
Page 10 of 17
,
raised Mr Ray considered the work record of the Grievor and the nature of the work
performed by the Grievor Counsel cIted OPSEU (Adams) and the Mimstry of Correctional
Services [1977] G S B 140/77 where the employer had failed to establIsh a proper delegatIOn
of the Deputy's authOrIty to dIsmiss to the civil servant who had dIsmissed the gnevor The
Board found that the failure of the union to "raise thIS issue at the tIme of the dismIssal or at
.
the outset of the hearing estopped the union from raising the issue later" He quoted from the
case as follows:
We might also observe, If the union's pOSItIOn was upheld, m future cases It too
would be required to establish a myriad of preliminary facts, despite the absence
of controversy with respect to such matters. It seems to us that this approach IS
too technIcal for the arbItration of employment related matters between partIes
that have an ongoing relatIOnshIp, particularly when the governmg statutes
stipulates that no proceeding under It should be invahd by reason of any defect
m form or technical irregularity "
Counsel argued that the Board viewed the failure to prove the statutory authonty of the civil
servant as a defect m form or "technical irregularIty "
In conclusion, Counsel for the Employer argued that If the Board finds that the
Employer has failed to show the statutory authority to dIsmISS Mr ReId "the flaw IS a defect
in form or a techmcalIrregularity that has not led to a substantial wrong or mIscarnage of
justice" Counsel argued that there was ample eVIdence before the Board to contmue so that a
full aInng of the merits can occur in order to settle the matter
Druon's SubnussIOn m Reply
Counsel for the Union noted in her reply that the Employer had not argued that It had
no oblIgation to prove that It had complied with reqUirements of the Act. Rather, It argued
Page 11 of 17
that it had complied with the Act. The Umon submItted again that the Employer had provided
no evidence to the Board that the Employer had complied with Sections 22(3) and 23 of the
Act. Counsel noted that the language of the terminatIOn letter, whIch states that Mr Ray was
terminating Mr Reid's employment "by the authority delegated to me by the Deputy
Minister," is a bald assertIon of the authority and not eVIdence of the veracIty of the assertIOn.
In fact, Mr Ray acknowledged that he had no written authority from the Deputy Minister to
terminate Mr Reid Nor did he have any evidence from Ms. Saunders, written or otherwise,
to terminate Mr Reid. Evidence of Ms Saunder's authorIty to termmate employees is of no
assistance, even had It been tendered to the Board Counsel also argued that there IS no
evidence before the Board that Mr Ray was appomted to an acting position pursuant to sub-
sectIOn 4(2) of RegulatIon 977 Nor was there evidence that Ms. Saunders was "unable to
act" in her position as Area Manager as required by sub-sectIOn 4(2) She reIterated that Mr
Ray said he dId not know why he was performing as an Acting Area Manager or how long
Ms. Saunders was away Counsel argued that Sub-section 4(2) of the Regulation IS Irrelevant
because It addresses the designation to an acting position to perform the dutIes of the position
whIch is permissible without writing, but not the powers of the positIOn.
Counsel made some further submissIOns in response to the Employer's submIssIOn on
the Adams deCIsion. She noted that the Board m Adams found that the umon was estopped
from relying on the lack of delegated authority at the end of a full hearmg In her submission
no estoppel argument had been raised m this gnevance, nor IS It aVailable to the Employer in
this case It was not until Mr Ray testified that the Union had any Idea that there might be a
problem with the termmatIOn of Mr Reid. Thus the umon here made the ObjectIon to the
Page 12 of 17
Improper delegatIon at the first possible opportunity, and Adams IS dIstmguishable
Decision
The parties agreed that the Board had the JUrIsdiction to decIde the Issues as presented
As noted above, we decided unanImously that Mr Ray was not properly authonzed to
.
terminate Mr Reid's employment and, therefore, the Employer had breached Sections 22 and
23 of the Act, making the termination VOId ab initio Thus we ordered Mr Reid remstated
without any loss of seniority, wages and benefits.
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 Mimster of
each Ministry A Deputy Minister is permitted, under Section 23(1), WIth the wntten 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 wntten 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 authonzation must be m writing
This is a substantive nght 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 authonzed
under Section 23( 1) of the Act to dIsmiss Mr ReId The letter whIch purported to terminate
Mr Reid's employment stated
By the authonty delegated to me by the Deputy MImster under Section 23 of the
Page 13 of 17
Public Service Act I hereby dismiss you for cause m accordance with Section
22(3) of the PublIc Service Act, effective November 8, 1996
However, Mr Ray acknowledged in hIS evidence that he did not have wntten 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
Futher 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 reviewmg the eVIdence and the
provisions of the Act, the Board concluded that there had been no delegation of power to
dismiSS to Mr Ray
But even if we were to find that Mr Ray had the proper delegatIOn of the power to
dismiss, which we do not, he told this Board that he did not decide to dismISS Mr Reid We
cannot Ignore this evidence as requested by the Employer Mr Ray SIgned the letter, but he
did not make the decision In other words even if he'd had the power delegated to him
properly, he dId not exerCIse the power
While the Act 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
Page 14 of 17
validity in the employer's exercise of thIS statutory authonty," and unless there is a
"demonstration of irregularity," then a Board can take it that a person signing the termmation
letter was doing so with the authority properly delegated to that individual As noted above, m
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.
In Villella the Board consIdered a preliminary objection raised by the umon that the
dIscharge should be found VOId ab initio because of defects m the delegation document. The
Deputy Minister had failed to date the delegatIon document, although it had been signed by
her, and there was a mistake in the reference to the sectIOn of the Act. The Board dIsmIssed
the union's objection, findmg that the date problem could be cured m the course of the hearing
before the Board and that the inclusIOn of the wrong sectIOn number was merely a
typographIcal error In re PutnokI the court dismissed a request for JudIcial reVIew of a
decision of the PSGB where that Board assumed junsdictIon of a grievance which alleged
improper complIance with the Act. The grievor argued he had been Improperly suspended
under the Act because the consent of the Minister to delegate the authority to suspend was
signed by one Minister who, by the time of the suspension, had been replaced by another
Mimster The court dIsmissed the argument presented to It and found that the consent of the
Minister continued to be valid until revoked or varied by the incommg Minister Similarly, m
WeIsenberg the Board held that the dIscretIOn to delegate and to gIve consent attached to the
office as opposed to the person holdmg the office In thIS case, the Board refused to find a
discharge from employment invalid because both the Mimster and Deputy Minister had
Page 15 of 17
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changed since the date on which the consent and delegation had been executed
In all of these cases there were technical problems with the document eVIdencing the
delegatIOn. In Weisenberg and Putnoki both the Minister and Deputy Mimster who gave
consent and the delegatIon of authonty were no longer m office But there was a delegatIOn of
the power to an mdIvidual who exercised It by dismissing the grievor There was no doubt in
these cases that the person actmg pursuant to the delegatIOn had the authonty to do so
Similarly, in Villella the Deputy Minister had failed to date the delegation document and there
was a mistake in reference to the sectIOn of the Act, but there was no doubt that the person
who dismissed the gnevor in that case had the authority to do so
In the case before us the Board had no eVIdence to support Mr Ray's authority to
dIsmIss Mr Reid Without proper delegation then the dismIssal must be ultra vires This
Board held similarly in Sandham when it found that there was no exerCIse of a dIscretion
conferred by the collectIve agreement on the Deputy Mimster or designee and the eVIdence
before the Board was that the decision maker was neither The Board held unanimously "we
find there has been no proper exerCIse of the dIscretIOn conferred by Article 55(1) "
For the reasons found above, we ordered that Mr Reid be remstated on October 17,
1997, without loss of semonty, wages and benefits. Havmg found thus we dId not address the
other grounds of the Union's motIOn.
Page 16 of 17
Dated at Toronto thIS 17th day of August 1998
D~
~~~
E Seymour, Member
, ~\~
::~ \: --.
D Montrose, Merd::er
Page 17 of 17