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HomeMy WebLinkAboutP-2001-P0049.Edwards.03-02-04 Decision Public Service Commission des ~~ Grievance Board griefs de la fonction publique Bureau 600 ~-,... Suite 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 PSGB# P/0049/01 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Edwards Grievor - and - The Crown In RIght of Ontano (Mimstry of CorrectIOnal ServIces) Employer BEFORE Deborah lD LeIghton Vice-Chair FOR THE GRIEVOR Andrew Camman PolIshuk, Camman and Steele BarrIsters and SOlICItorS FOR THE EMPLOYER Sean Kearney Counsel Management Board Secretanat HEARING December 18 2002 2 DECISION Rev MelodIe Edwards gneves that she was wrongfully dIsmIssed on May 30 2001 after a heated exchange regardIng the use of the WorShIP centre at HamIlton Wentworth DetentIOn Centre (HWDC) The employer's posItIOn IS that the gnevor abandoned her employment, and pursuant to sectIOn 20 of the Public Service Act (PSA) the employer removed her from the payroll on October 29,2001 and declared that she ceased to be a publIc servant on November 15th, 2001 The employer's prelImInary motIOn to dIsmIss the gnevance on grounds that Rev Edwards was not dIsmIssed, but abandoned her employment proceeded on the basIs of documentary eVIdence and argument. No VIva voce eVIdence was called. The salIent facts are not In dIspute Rev Edwards commenced employment as a chaplaIn wIth the mImstry In May1997 She IS an ordaIned pnest of the AnglIcan Church of Canada. Rev Edwards obJected to the use of the WorShIP centre at HWDC for non-spmtual functIOns or meetIngs The employer was USIng the WorShIP centre for such thIngs as medIatIOn-arbItratIOns, whIch occur pursuant to the collectIve agreement between the Ontano PublIc ServIce Employees' Umon and the employer It was thIS use that led to the IncIdent on May 30th 2001 when Rev Edwards photographed a medIatIOn-arbItratIOn. Rev Edwards was summoned to Supenntendent Morns' office and was questIOned about why she took photographs of the meetIng. Rev Edwards stated that the use of the WorShIP centre for medIatIOn-arbItratIOns was contrary to the mImstry's polIcy that any use of the centre must be consIstent WIth ItS use as a place of WorShIP Rev Edwards was asked to gIve the film to the Supenntendent, whIch she refused to do After further requests and further refusals, the Supenntendent Informed Rev Edwards that she was relIeved of her dutIes as chaplaIn untIl a meetIng the next day May 31 st, 2001 at 11 00 am Supenntendent Morns also told Rev Edwards that she was suspended for InsubordInatIOn. 3 It IS the gnevor's VIew that the Supenntendent termInated her employment dunng the meetIng on May 30 2001 It IS the employer's VIew that she was not termInated, but suspended wIth pay The gnevor's lawyer was unable to attend wIth her on May 31 so the gnevor Informed the employer that she could not be at the 11 a.m meetIng. The employer responded to the gnevor's request for a reason for dIsmIssal on June 1 2001 statIng that Rev Edwards had not been dIsmIssed. On June 4 2001 Rev Edwards was advIsed of the consequences of beIng absent wIthout permIssIOn and the employer's nght under sectIOn 20 of the PSA to declare that an employee absent for two weeks or longer wIthout permIssIOn may be declared to have abandoned hIS or her posItIOn. Another letter was sent In July and another In August tellIng her to report to work or provIde a medIcal note wIth a request for leave The gnevor dId not return to work or request a leave A letter In October Informed her that she was to be removed from the payroll on Oct. 29 2001 gIVIng her to November 15th, 2001 to notIfy the employer of whether she would return to work. The gnevor dId not respond. Further detaIls of the eVIdence wIll be Included as necessary In the reasons for the decIsIOn. Submissions of the Employer Sean Kearney counsel for the employer argued that the documents showed that the gnevor abandoned her posItIOn. Counsel argued that Rev Edwards was Informed that she was absent wIthout permIssIOn, that she must return to work, or the employer would rely on sectIOn 20 of the PSA Mr Kearney cIted decIsIOns of the Gnevance Settlement Board (GSB) the sIster board to the PublIc ServIce Gnevance Board (PSGB) to argue that the employer must comply wIth the provIsIOns of sectIOn 20 of the P SA by shoWIng that the gnevor was absent wIthout officIal leave for two weeks or more OPSEU (TAM) and The CroYf,n in Right of Ontario (Ministry of Revenue) (1976) 0001/76 (Beatty) OPSEU (Roy)and The Crown in Right of Ontario (Ministry of Education) (1978) 0006/78 (Brunner), OPSEU (Jone) and The Crown in Right of Ontario (Ministry of Government Services) (1989) 1098/87 (Emnch) OPSEU (Szabo) and The Crown in Right of Ontario (Ministry of the Attorney General) (1991) 0292/91 (Saltman) OPSEU (Baldeo) and The Crown in Right of Ontario 4 (Management Board Secretariat) 1270/93 (1995) (FInley) Counsel submItted that the gnevor was Informed In wntIng of the consequences of not returnIng to work or requestIng a leave of absence She dId neIther Hence the employer declared that she had abandoned her posItIOn on November 15th, 2001 Submissions of the Grievor Counsel for the gnevor Andrew Camman, argued that the employer had dIscnmInated agaInst the gnevor both before the May 30th IncIdent and after Counsel argued that the gnevor was constructIvely dIsmIssed on May 30th, 2001 and that she could not return to work because of the pOIsoned workplace The gnevor was deeply offended by the use of the WorShIP centre for secular purposes such as mediatIOn-arbItratIOns It was thIS ongoIng concern that led to the IncIdent on May 30th. Counsel argued that the gnevor belIeved that she was termInated and that she could not return to what she consIdered to be an unsafe workplace Counsel argued that she was forced out of her posItIOn, that she dId not abandon It. Decision HavIng carefully consIdered the submIssIOns of the partIes, and the eVIdence tendered, I have decIded to dIsmIss the gnevance It IS clear from the GSB case law that that board has JunsdIctIOn to reVIew whether the reqUIsItes of sectIOn 20 of the P SA have been met. Counsel for the employer agreed that the PSGB also has the JunsdIctIOn to reVIew whether sectIOn 20 of the PSA has been properly Invoked. SectIOn 20 provIdes A publIc servant who IS absent from duty wIthout officIal leave for a penod of two weeks or such longer penod as IS prescribed In the regulatIOns may by an Instrument In wntIng be declared by hIS or her deputy mImster to have abandoned hIS other posItIOn, and thereupon the posItIOn becomes vacant and the person ceases to be a publIc servant. R. S 0 1990 c P 47 s 20 The first part of the analysIs reqUIres eVIdence that the employee has been absent wIthout permIssIOn for two weeks or more The board In Tam held that the next part of the exerCIse IS to consIder even If 5 a leave was demed, whether" It could be establIshed that the employee dId In fact have reasonable and JustIfiable reasons for hIS or her absence" The board In Tam went on to explaIn that It would In such a case be essentIal for the employer to establIsh that a requested leave "was not unreasonably dIscnmInatonly or arbItranly wIthheld." (p 10) The eVIdence before me clearly establIshes that Rev Edwards was absent wIthout permIssIOn for more than five months Although there mIght have been confusIOn In the gnevor's mInd after the heated exchange between Supenntendent Morns and herself, there should have been no mIsunderstandIng after she receIved the letter of June 1 2001 Supenntendent Morns' letter to the gnevor stated In part I am respondIng to your e-maIl and faxed correspondence sent to my office on May 31 and June 1 2001 respectIvely It IS my understandIng that Mr J Carvalho Deputy Supenntendent Programs, contacted you yesterday by telephone on my behalf to address your concerns and request a meetIng wIth you for today On Wednesday May 30 2001 dunng a meetIng In my office, I Informed you that you were suspended wIth pay for the remaInder of the day As a result of the suspenSIOn I ordered you to report to the InstItutIOn on Thursday May 31 2001 at 11 00 hours to attend a meetIng. You were also advIsed that an employee representatIve of your chOIce could accompany you, If desIred, at your expense You were not "dIsmIssed" or "relIeved from duty" as you IndIcate In your correspondence dated June 1 2001 On Thursday May 31 2001 you advIsed us you would not be attendIng thIS meetIng as you were unable to arrange for an employee representatIve to attend wIth you. In a later dIscussIOn wIth Mr Carvalho you stated you were unsure If you could attend a meetIng on Fnday June 1 2001 and IndIcated you would contact hIm at 08 30 hours Fnday mornIng. On Fnday June 1 2001 we receIved a fax transmISSIOn from you whIch dId not address Mr Carvalho's request for a meetIng thIS date or IndIcate your avaIlabIlIty for WorShIP ServIce on Sunday Therefore, It IS our expectatIOn that you wIll report for your next scheduled ShIft on Sunday June 3 2001 Furthermore, a meetIng has been scheduled wIth you on Monday June 4 at 11 00 hours In the boardroom An employee representatIve of your chOIce, and at your expense, may accompany you If you desIre In spIte of thIS letter the gnevor contInued to maIntaIn that she had been termInated, and refused to come to work. 6 Even though decIsIOns of the GSB have noted that there IS no statutory reqUIrement to notIfy an employee that sectIOn 20 of the P SA may be Invoked, the employer dId warn the gnevor by letters dated June 4 and June 5 The letter of June 5 also made It clear that the gnevor could request leave wIth or wIthout pay wIth the appropnate documentatIOn, but that wIthout such a request or return to work sectIOn 20 would be Invoked. Another letter dated July 18 2001 from Michael SImpson, RegIOnal DIrector to Rev Edward's then lawyer T Shev SIngh, also stated clearly that the employer wanted to meet wIth hIm and the gnevor to resolve the matter The letter also Informed Mr SIngh that Rev Edwards was on "an unauthonsed" leave wIth pay Mr SImpson Informed Mr SIngh that If Rev Edwards was Ill, somethIng referred to by Mr SIngh In hIS letter of June 8 2001 to Supenntendent Moms, she needed to request a medIcal leave and provIde supportIng documents As noted earlIer In the summary of the eVIdence, the gnevor was asked agaIn In October 23 2001 to return to work or request appropnate leave She dId neIther Thus the employer clearly satIsfied the reqUIrement that the gnevor was absent wIthout permIssIOn for two weeks or more The next questIOn IS If a leave was demed, then whether the gnevor had "reasonable and JustIfiable reasons" for the absence I have to conclude that she dId not. FIrst, and most Importantly the gnevor never requested a leave - even though she was advIsed by her employer that she was stIll an employee and that she was absent from work wIthout permIssIOn. The employer's correspondence from as early as June 1 2001 made It clear that Rev Edwards had not been termInated. The employer repeatedly asked to meet wIth her and her representatIve In June July and August. The employer also repeatedly requested that she return to work or request a leave However the gnevor maIntaIned that she was termInated, despIte beIng told she was not, and despIte the fact that the employer contInued to pay her salary untIl October 29 2001 The only explanatIOn gIven for her absence wIthout officIal leave IS that the workplace was "pOIsoned," and that she was beIng harassed. The theory that she could not return IS not consIstent 7 wIth the theory that she was termInated. There was no eVIdence that she ever filed a workplace dISCnmInatIOn and harassment complaInt. In any event, the GSB In Roy held, In a sImIlar case, that the gnevor's allegatIOns of harassment and dISCnmInatIOn dId not JustIfy hIm refusIng to go to work. Mr Roy lIke the Rev Edwards, never asked for a leave I am persuaded that there was InSUfficIent JustIficatIOn for the gnevor's absence from work wIthout permIssIOn. FInally SInce the two cntena have been met, (1) the absence wIthout leave for two weeks or more, and (2) no reasonable excuse for the absence, and SInce there IS no eVIdence that the Deputy Mimster exercIsed the dIscretIOn under sectIOn 20 of the PSA In bad faith, dIscnmInatonly or arbItranly then the gnevance must be dIsmIssed. For all the reasons noted above the board dIsmIssed the gnevance on January 23 2003 Dated at Toronto thIS 4th day of February 2003 ~ ".~ :-- Lelg ton' . Vice-Chair