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HomeMy WebLinkAboutP-1984-0929.Shortill.84-12-14@ Ontario Public Service Grievance Board GRIEVANCE NO. 929/84 HEARING: L. SHORTHILL and MINISTRY OF HEALTH April 17, 1985 20th Floor 180 Dundas St. W. Toronto, Ontario M5G 128 41 6/965-1455 "Unjust Dismissal" PRESENT Board Members: Prof. C. Gordon Simmons Chairman E. A. Black Member J. G. Griffin Member For the Girevor: E. L. James For the Employer: M.V. Quick Counsel James, Flood & Tanner Barristers and Sol ici tors Counsel Legal Branch Ministry of Health -2- On December 14, 1984 the board issued its decision in connection with grievance 929/84 between the present parties. The decision concluded with the following statement" So the preliminary objections are dismissed. to schedule further hearings in this matter when the issues on their merits will be heard. The Secretary will be instructed On March 7, 1985 the Ministry applied to the Divisional Court for judicial review of the above decision. Nevertheless, the board scheduled hearings for April 23 and 24 for the purpose of hearing the issues on their merits. Upon convening on April 23, counsel for the Ministry requested that the board adjourn proceedings pending the outcome of the judicial- review application. Ms. Quick, for the Ministry, advanced the following reasons in support of her request to adjourn. In the event that the board proceeded to hear the issue on its merits, it would be for naught if the court upheld the application of the Ministry for judicial review and ruled that the board lacked jurisdiction to entertain the issue on its merits. In that event such an exercise would be an unnecessary expense. She informed the board that a total of approximately sixteen witnesses would probably be called to testify before the board so that a number of hearing days would be involved. Moreover, a number of witnesses for the Ministry are located in various parts of the province which would entail considerable expense in having them attend hearings in Toronto. Counsel for the grievor informed the board that an adjournment would cost her -3- client approximately $2,000, but we were not informed what the cost would be if we scheduled several hearing days to which she would be obliged to attend. Counsel for the Ministry responded that the grievor could be compensated for her monetary loss caused by the delay if the board so ordered. The board was also informed that the court has tentatively set the first two weeks of July, or the last two weeks of August, 1985 as dates when the matter is to be heard. Therefore, a delay of three or four months is invo lve d. Counsel for the Ministry also supported her argu- ment to adjourn upon the ground that the grievor's counsel had failed to produce certain documents that had been requested. However, this issue was resolved during the hearing . Finally, counsel for the Ministry informed the board that it would be seeking an order from the board to compel the appearance of a certain witness when the board holds its hearings on the merits. During the course of the hearing on April 23 it was revealed that the grievor intends to introduce a written statement into evidence by her physician but does not intend to call him as a witness. Counsel for the Ministry wishes to have him appear and testify. Aft-er considering arguments of counsel, we informed the parties that, on balance, the request for /- adjournment ought to be granted. We recognize that any -4- delay ought to be avoided whenever possible. is desirous in having the matter resolved in order that she may proceed to other things. the most prudent course to follow in this instance is to The grievor However, we believe that adjourn. The projected delay amounts to three or four months. If we were to proceed only to discover we lacked jurisdiction, the parties would have incurred considerable unnecessary expense. outweighs the delay that is involved. We consider that the cost of proceeding However, we informed the parties that should subsequent events demonstrate that further delays are being promoted by either party, the board would be prepared to reconvene on short notice by application of either party. The board also ruled on the issue of compelling the grievor’s physician to attend at a hearing and give viva voce evidence as follows. Due to the adjournment, the parties would have an opportunity to advise the board more fully why it was necessary that the physician attend or upon what grounds could it be argued that he need not attend. Counsel for the grievor informed the board that the doctor had given a full and complete statement in a letter and was of the opinion that he could not offer anything more. But apparently that does not satisfy the Ministry, The board was of the view that, if counsel pursued this more fully through correspondence during the adjourned period, they may be able to resolve it. If they were unsuccessful, the board indicated that it would -5- rule on the issue before reconvening a further hearing. The board also indicated to the parties that, if the doctor was required to attend a hearing to testify and his testimony added little additional information, we would require the Ministry to bear the expense of having him attend. Evidence Act, R.S.O. 1980 c.145, s.52. opportunity to review the Section since the hearing and reproduce it below: We based our direction to the parties on The We have had an (4) Where a legally qualified medical practitioner has been required to give evidence viva voce in an act ion and the court is of opinion that the evidence could have been produced as effectively by way of a medical report t he court may order t he party that required the attendance of the medical practitioner to pay as costs therefor such sum as it considers appropriate. It would appear that Subsection 4 does not give a court (tribunal) discretion over whether or not a medical practitioner must attend at a hearing. In other words the Ministry may insist upon his attendance. In the event that the Ministry insists upon his attendance, the board -6- will consider whether or not it was necessary in all of the circumstances and will be prepared tu rule on the ordering of costs pursuant to Section 52 (4) . Accordingly, the board adjourned the hearing sine die to await further developments as previously dis cus sed . Dated at Kingston, this 17th day of June, 1985. Prof. C.G. Simmons, Chairman J.G. Griffin, Member E.A. Black, Member *- I- I- ,- 20th Floor 180 Dundas St. W. Toronto, Ontario M5G 128 Public Service Board G r i evan ce 416/965-1455 GRIEVANCE No. 929/84 HEARING: Ms. Shortill and Ministry of Health October 22, 1984 L "Unjust D is m iss al” PRESENT Board Members: Prof. C. Gordon Simmons E.A. Black J. G. Griffin For the Grievor: E. L. James For the Employer: M. V. Quick Chairman Member Member Counsel James, Flood & Tanner Barristers & Solicitors Counsel Legal Branch Ministry of Health -2- The employer raised a preliminary objection over the jurisdiction of the Board to hear and resolve this grievance on its merits. During the initial stages of the hearing, it was agreed that the Board would render its decision on the preliminary objection before proceeding to hear the grievance on its merits. Ms. James for the grievor, also raised a preliminary objection. It was her position that certain correspondence that had been exchanged between her and Ms. Quick, counsel for the employer, to which Ms. Inniss, Secretary to the Board, had received copies, ought not to have been made available to members of the Board prior to the commencement of the hearing. The Chairman informed Ms. James that he only had been made privy to such correspondence and that he was prepared to withdraw from the proceedings and have the two remaining panel members continue, pursuant to Regulation 881, Section 37(2). However, Ms. James sought advice and informed the Board that the grievor was withdrawing the objection . Ms. Quick proceeded by submitting a document which contained a total of forty-one different items. The items included letters, memoranda and a writ of summons and a statement of claim. The Board informed the parties that it would take a liberal view of the admission of documents but would proceed cautiously in determining the relevancy of such documents. Furthermore, we informed the parties that the weight which we would attribute to each document would depend upon its relevancy. The parties agreed to such an approach and upon this basis the documents were received. -3- The basis for the employer's objection to the Board's jurisdiction was that the grievor had not been continuously employed for the preceding six months. Regulation 881, Section 49 (1) states: 49 - (1) Subject to subsections (2) and (3), sections 50 to 57 apply to persons who are employed in the public service under the jurisdiction of a deputy minister and who have been so employed continuously for at least the preceding six months. Ms. Quick submitted that the grievor repudiated the employment relationship when her counsel gave notice to the Attorney General by letter on September 13, 1983 that proceedings were being commenced for breach of the employment contract. While the letter of September 13 left certain doubt as to what was being claimed as the breach, there was no doubt in a letter to the Ministry of Health on September 16 by the grievor's counsel that the breach amounted to dismissal of the grievor. Accordingly, the employer argued that the grievor had repudiated her employment contract and there was no longer any employment relationship existing between the parties. Ms. James argued that her client continued to be an employee throughout and it was only in June 1984 when the employer refused to allow her to return to work did the employer's position in this matter become clear . Ms. James called the grievor and Ms. Sheryl Morrow to testify. Ms. Morrow is a Personnel Supervisor with the employer and her evidence -4- revealed that the grievor remained on the payroll files to the date of the hearing. The grievor testified that she has never received any separation allowances, etc., and considers that she is still an employee. Apart from the foregoing evidence, counsel for both parties relied on various letters, etc., which were submitted as exhibit 1, to support their respective positions. We have had an opportunity to peruse the material, as well as consider the arguments of counsel. While the entire matter before us is bizarre, we have reached the conclusion that the grievor remained an employee until June 1984 when she attempted to return to work. Accordingly we find that Section 49 (I) does not support the employer's position and the preliminary objection is dismissed. Our reasons follow . The beginnings of this unfortunate situation first appeared in April 1983 when the grievor complained to her supervisor in writing over her classification and duties (exhibit 1, letter # 1). Before her complaints could be resolved, Ms. James entered the picture, claiming in a letter dated May 24, 1983 that the employer's comments were inaccurate and provocative. Ms. James claimed that the grievor's rights were breached and stated that the grievor's grievance was entitled to be dealt with according to statutory procedures (exhibit 1, letter #3). -5- P- - One thing led to another and letters between Ms. James and the employer continued. On July 14, 1983, a letter from the employer to the grievor, stated that due to her high number of absences from work she was to undergo a mandatory medical examination pursuant to Regulation 881, Section 68 (3) (exhibit 1, letter # 10). Matters soon became more heated and moved swiftly. Ms. James stated in a letter of September 13, 1983 that she was giving notice of proceedings being taken against the Crown and claiming that her client had been wrongfully dismissed (exhibit 1, letter # 12). The employer responded to Ms. James stating that it was not the position of the employer that the grievor had been dismissed. The letter stated “she is still an employee of this facility even though she is currently on paid leave of absence due to illness. The purpose of the mandatory medical examination is to determine Ms. Shortill's ability to return to work as well as her prognosis for the future. It is hoped that Ms. Shortill will attend this appointment soon." Ten days later, when Ms. Shortill still had not submitted to a medical examination, the employer again wrote to her, informing her that if she continued to refuse to comply she would be placed on "unauthorized leave without pay" (exhibit 1, letter # 17). She was subsequently placed on unauthorized leave without pay and was also informed that if she continued to refuse to comply "it will be necessary to declare that you have abandoned your position" (exhibit 1, letter # 19). (exhibit 1, letter # 16). The next significant happening occurred in January 1984 when a writ of Summons was issued on behalf of the grievor by Ms. James (exhibit I, item # 21). -6- Subsequently, in March 1984, Ms. James received advice that her suit against the Crown might encounter difficulties and that she should pursue a grievance under the Regulations (exhibit 1, letter # 23). In May 1984 two significant things happened. Ms. James acted upon the advice she had received and attempted to have the grievor reinstated in her position. Secondly, Ms. Quick entered upon the scene (exhibit 1, letters # 26 and 27). When Ms. James had not received replies to some of her letters, she informed the employer by letter that the grievor would be reporting for work on June 20, 1984 (exhibit 1, letter # 29). This letter prompted Ms. Quick to reply that the grievor had repudiated her employment contract in 1983 and that she saw no point in having the grievor attend at work on June 20 (exhibit 1, letter # 30). A total of twelve further letters were contained in exhibit 1 but we do not consider that they assist us at this time in resolving the issue. As we stated at the outset, this situation is bizarre. We have an allegation by the grievor that she had been wrongly dismissed and then find the employer saying that she hasn’t been dismissed at all. Rather, the employer was seeking to have her undergo a medical examination to determine the reasons for her repeated absences from work and a prognosis for the future. Then, some months later, when the grievor seeks to return to work we find the employer saying that she can’t return because she repudiated her employment contract. The entire situation is strange indeed. -7- P- - However, we believe that the resolution difficult. We plan to apply ordinary rules of contract to the problem is not to resolve it. The information that was supplied to the Board reveals that during the Spring and Summer of 1983, Ms. Shortill was concerned over her classification and was encountering a number of absences from work for reasons which were not made clear to the Board. In any event, matters deteriorated between her and the employer to the point where she believed that she had been unjustly dismissed and initiated proceedings in an attempt to rectify the situation. In essence, she was alleging that the employer had breached the employment contract. But the employer replied that it had not dismissed her and that it was only seeking medical information about her health. At this point in time it cannot be said that the employer had considered that the employment relationship had come to an end. It seems to us that the employer could have followed two other courses of action at this stage in their relationship. It could have agreed with Ms. James that it had dismissed Ms. Shortill or it could have followed through on its suggestion of abandonment in its letter of October 27, 1983 (exhibit 1, letter # 19) and declared that she had abandoned her position. But it did neither. So at this stage in the matter we find that the employer had never considered Ms. Shortill as not being an employee. We cannot, with respect, accept Ms. Quick's assertion in her letter of June 19, 1984 (exhibit 1, letter # 30) that "Ms. Shortill's conduct constitutes an unequivocal repudiation of the employer-employee relationship ...” Howard V. Pickford Tool Ltd (1951) 1 K. B. 17 (C.H.) is a -8- P- case somewhat analogous to the instant situation. In that case a Managing Director brought an action seeking a declaration that the employer had repudiated the employment contract. The evidence revealed that the Managing Director was continuing to perform his duties and the claim was dismissed. Asquith L. J. stated at page 421: An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind. Therefore a declaration that the defendants had repudiated their contract with the plaintiff would be entirely valueless to the plaintiff if it appeared at the same time, as it must appear in this case, that it was not accepted. In the instant situation, Ms. Shortill was on a leave of absence but the employer emphatically stated that it still considered her to be an employee after it had been informed by Ms. James of the proceedings being taken against it. In our view the Howard case is applicable to our fact situation. .A-- - Next, Ms. James sought to have the grievor's grievance pursued within the Ministry (exhibit 1, letters # 33 and 38) and when she was unsuccessful she contacted the Board (exhibit 1, letter # 40). She had also tried to have Ms. Shortill return to work (exhibit 1, letter # 27) but , as stated earlier, this too proved to be unsuccessful (exhibit 1, letter # 30). So it would appear that from the Autumn of 1983 until June 1984, Ms. Shortill was on "an unauthorized leave of absence." The employer attempted to change all of this when she applied to return to work. But this change was too late. The employer could have terminated the relationship in the Autumn of 1983 but it elected not to do so. It adopted -9- the position that the employment relationship had not been terminated and this position remained unchanged until she sought to return to active employment. At this point in time, the employer was made aware that Ms. Shortill considered the employment relationship to be continuing. It had done nothing in the meantime to terminate that relationship. It was only after her request to return did the employer say that she had repudiated the employment contract in 1983 and stated that the employment relationship had expired at that time. We have repeatedly stated that the employer's position comes too late to be effective. When she informed the employer that she intended to resume her active employment, the employment relationship must be considered to have continued throughout. At this stage in their relationship, the only avenue that was open to the employer was to terminate her services. It did not do this. Therefore Section 49 (I) of Regulation 881 cannot support the employer's position. Ms. Shortill continued to be an employee, albeit on an unpaid leave of absence. A second ground of objection was timeliness but Ms. Quick acknowledged that timeliness goes more to weight than to jurisdiction. We agree. Further the employer did not argue that it had been prejudiced in any way. Therefore, we reject this objection also. Moreover, we would be prepared to extend the time limits under Section 60 (b) of Regulation 881 if it had been necessary to do so. - 10- So the preliminary objections are dismissed. The Secretary will be instructed to schedule further hearings in this matter when the issues on their merits will be heard. DATED at Kingston, this 14th day of December, 1984. Prof. C. G. Simmons - Chairman E. A. Black - Member J. G. Griffin - Member Ontario Public Service G rievan ce Board Erratum Sheet Re: Enclosed 929/84 Ms. Lillian Shortill and Ministrv of Health 20th Floor 180 Dundas St. W. Toronto, Ontario M5G 128 41 6/965-1455 January 22, 1985 is a copy of the corrected last page of the decision in the above- noted matter. The signature should be J. G. Griffin instead of G. K. Griffin. Please amend your copy of the decision which was recently issued by this Board. #-- F T.A. Inniss, Secretary /hj Encl. 10 - So the preliminary objections are dismissed. The Secretary will be instructed to schedule further hearings in this matter when the issues on their merits will be heard. DATED at Kingston, this 14th day of December, 1984. Prof. C. G. Simmons - Chairman - __ C- E. A. Black - Member J. G. Griffin - Member