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HomeMy WebLinkAboutP-2003-3552.Coccia.05-07-26 Decision Public Service Commission des ~~ Grievance Board griefs de la fonction publique Bureau 600 ~-,... Suite 600 Ontario 180 Dundas SI. 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 P-2003-3552 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN CoccIa Grievor - and - The Crown In RIght of Ontano (Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE Deborah lD LeIghton Vice-Chair FOR THE GRIEVOR ElIzabeth CoccIa FOR THE EMPLOYER Sean Kearney Semor Counsel Management Board Secretanat HEARING March 22, 2005 WRITTEN May 17 2005 SUBMISSIONS 2 DeCISIon Ms ElIzabeth CoccIa filed a gnevance on February 13 2004 contestIng dIscIplIne that was Imposed on her on July 11 2003 At the outset of the heanng, the employer raised a prelImInary motIOn to dIsmIss the gnevance as untImely The gnevor opposes the motIOn. The facts are not In dIspute and were agreed to by the partIes at the heanng. Ms CoccIa began employment as a CorrectIOnal Officer wIth the Mimstry In 1985 She was promoted to a management posItIOn In 1990 At the tIme of the IncIdent leadIng to the dIscIplIne, Ms COCCIa was an OperatIOnal Manager at HamIlton Wentworth DetentIOn Centre The IncIdent Involved a number of employees, and there was an allegatIOn that they used undue force on an Inmate The Mimstry began an extensIve InVestIgatIOn whIch led to a number of employees beIng dIsmIssed and dIscIplIned. CnmInal charges were laid agaInst some IndIVIduals, but not the gnevor A letter dated June 12, 2003 Informed Ms CoccIa, that the employer was consIdenng dIscIplInary actIOn agaInst her The allegatIOns were as follows 1 That on October 18 2002 you were grossly neglIgent In carryIng out your role, responsIbIlItIes and dutIes as OperatIOnal Manager regardIng the exceSSIve use of force used In Inmate" A" 2 That your conduct was unprofessIOnal, In that you were deceItful In filIng a report and In respondIng to Mimstry InVestIgators 3 3 That on October 18 2002 you faIled to meet the standards for professIOnal behavIOur for Mimstry employees as outlIned In a statement of ethIcal pnncIples, when you faIled to document the use of force on Inmate "A" 4 That you faIled to comply wIth the Mimstry polIcy for use of force, as outlIned In the Adult InstItutIOns PolIcy and Procedures Manual and InstItutIOns StandIng orders by faIlIng In the mImmum reportIng reqUIrements on the use of force on Inmate 5 That on October 18 2002 you faIled to provIde care, custody and control as reqUIred of an OperatIOnal Manager and In contraventIOn of the Mimstry of CorrectIOnal ServIces Act. (The Inmate's name has been omItted.) By the same letter the Mimstry notIfied the gnevor that a meetIng was scheduled for June 20 2003 to gIve her an opportumty to speak to the allegatIOns She was also Informed that If she dId not attend that meetIng, the Mimstry would proceed wIthout her Input. Ms CoccIa retaIned a lawyer Mr Graydon Sheppard, to represent her wIth the matter raised In the employer's June 12,2003 letter By letter dated June 12,2003 Mr Sheppard Informed the Mimstry that for medIcal reasons the gnevor was unable to attend. Further Mr Sheppard wanted dIsclosure of the documents and tapes made dunng the InVestIgatIOn before proceedIng to what he referred to as the heanng. The Mimstry wrote on June 20 2003 to Ms CoccIa to clanfy the process and gIve her an opportumty to respond to the allegatIOns In wntIng. In lIght of the correspondence receIved from your legal representatIve, let me clanfy our process The meetIng of June 20 2003 was scheduled to allow you an opportumty to respond to the allegatIOns outlIned In my letter to you dated June 12,2003 ThIS IS an admInIstratIve process, not a court proceedIng. EntItlements and procedures are dIfferent for both (e g. a representatIve cannot be sent to meet wIth me on your behalf unless you are In attendance) Today you have receIved the InformatIOn necessary for thIS meetIng. You are afforded the findIngs of the 4 Mimstry's InVestIgatIOn, as well as your statements There wIll be no further InfOrmatIOn for you at thIS tIme Please reVIew the allegatIOns and findIngs Respond to me In wntIng by Wednesday June 25 2003 If you have anythIng further to add In your defense The gnevor made no response, but her lawyer wrote on June 23 2003 obJectIng to the process You have reqUIred my clIent to respond by June 25 If she has anythIng further to add In her "defense" She IS not In a posItIOn to respond by that date In VIew of her health and your refusal to provIde the addItIOnal InformatIOn requested In my letter In the cIrcumstances, If you elect to proceed wIth any actIOn whIch IS detnmental to my clIent, the same wIll ImmedIately be challenged In court by way of JudIcIal reVIew On July 11 2003 the Mimstry Informed Ms COCCIa that It had decIded, gIven the findIngs of the InVestIgatIOn, that the allegatIOns outlIned In an earlIer letter were substantIated and Imposed dIscIplIne - a 20-day suspensIOn. The letter also Informed the gnevor that she had the nght to gneve the dIscIplIne pursuant to the provIsIOns In the Public Service Act. The gnevor pursued a JudIcIal reVIew of the employer's dIscIplInary suspensIOn, whIch was dIsmIssed by the DIvIsIOnal Court on February 4 2004 [Coccia v Ontario (Ministry of Public Safety and Security (2004) 0 J No 1118 (DIV Ct)] The court summanzed the gnevor's submIssIOn In part as follows Mr Sheppard, on behalf of the applIcant, asserts that the applIcant was depnved of her entItlement to procedural fairness, and submIts that In the cIrcumstances, she had the chOIce of eIther applYIng for JudIcIal reVIew or proceedIng as of nght under the gnevance and arbItratIOn procedures of the Act and RegulatIOns 5 The DIvIsIOnal Court held that the Public Service Act provIdes a gnevance procedure, and the gnevor's faIlure to use It breached a well-establIshed pnncIple that generally admInIstratIve remedIes must be exhausted before seekIng a reVIew by the courts The court stated further "The applIcant chose not to avaIl herself of thIS process, and she offered no explanatIOn for her faIlure to do so" On February 13 2004 the gnevor filed a gnevance contestIng the 20-day dIscIplInary suspensIOn. The employer demed the gnevance on the grounds that It was not tImely THE SUBMISSION OF THE PARTIES Counsel for the employer argued that the gnevance was late, and there were no grounds to support an extensIOn of the tIme lImIts Under subsectIOn 34(1) of RegulatIOn 977 to the Public Service Ac(an employee may file a gnevance wIthIn 14 days of becomIng aware of the subJect matter of the complaInt. Counsel relIed on the well known factors outlIned In Becker Milk to argue that Ms CoccIa was clearly aware of her nght to gneve and chose Instead to pursue a JudIcIal reVIew [Re Becker Milk Company Ltd and Teamsters Union, Local 647 (1978) 19 L.A.C (3d) 217 (Burkett)] Seven months IS a substantIal delay and no good reason has been provIded for the delay Counsel relIed on the folloWIng cases In support of hIS submIssIOn OPSEU (Szabo) and Ontario Realty Corporation (2001) GSB 1811/98 (HerlIch) OPSEU (Smith) and MinistlY of Northern Development Mines (2004) GSB 2002/243 et al. (Mikus) OPSEU (St. Jean et al.) and Ministry of Community Safety and Correctional Services (2004) GSB 2001/1122 (LeIghton) Johnson and Vipari andMinistlY of Community and Social Services 6 (1999) PSGB 0003/99 (LeIghton) Clayton and Blais and Ministry of Solicitor General and Correctional Services (2000) PSGB 0006/99 and 0012/99 (LeIghton) Campbell and Ontario Realty Corporation (2001) PSGB 0032/99 (LeIghton) Arkelian and Ministry of Health (1994) PSGB 0044/92 (Willes) Johnson, Smith and Ministry of Solicitor General and Correctional Services (1999) PSGB 0001/99 and 0005/99 (Agarwal) McFadden and Ministry of Solicitor General and Correctional Services (1999) PSGB 0019-99 (Willes) Ms CoccIa agreed that the gnevance was filed late She argued, however that the board should hear the case on the ments Her reasons were that when the predIscIplInary heanng was scheduled on June 20 2003 she was recovenng from surgery undergone on June 5 2003 She was not well enough to attend. Moreover she was advIsed that because she dId not receIve a predIscIplInary heanng, she had the nght to go to DIvIsIOnal Court for a JudIcIal reVIew She acknowledged at the heanng that one reason for purSUIng JudIcIal reVIew was that, If successful, she mIght get her costs for the applIcatIOn. Another reason was that If she was successful she would get the dIscIplIne process reversed so that she would get a predIscIplInary heanng. Ms COCCIa argued that once she got the DIvIsIOnal Court deCIsIOn, she filed her gnevance wIthIn 14 days She pOInted out that the employer could not have assumed that she had abandoned her complaInt. Therefore she opposed the motIOn to dIsmIss her gnevance Counsel for the Mimstry argued In reply that even If Ms CoccIa now thInks that the legal advIce to her was wrong, she only has a possIble claim agaInst her lawyer Further even If she was advIsed to seek a JudIcIal reVIew by her lawyer the Mimstry Informed her In the dIscIplInary 7 letter that she could gneve She had filed gnevances as part of a group In the past. Moreover Supenntendent Thomas also advIsed her that she had a nght to gneve From the outset, the Mimstry took the posItIOn that the DIvIsIOnal Court had no JunsdIctIOn to hear the case In sum, counsel argued that Ms CoccIa knew her nghts and chose to pursue a JudIcIal reVIew and therefore the gnevance IS not tImely and should be dIsmIssed Towards the end of the heanng Into thIS matter I asked counsel for the employer If he was aware of any PSGB cases, whIch dealt wIth the filIng of a gnevance after a gnevor ImtIally proceeded wIth a cIvIl matter The day after the heanng, counsel for the employer dIscovered a case decIded In the pnvate sector that he thought mIght be helpful to the board Re Sodexho Marriott COlporation of Canada Ltd and Ontario Public Service Employees Union, Local 241 (2002) 108 L.A. C (4th) 68 (Beck) Mr Kearney forwarded thIS case to Ms CoccIa WIth the express request as to whether or not she would agree to thIS case beIng put before me wIthout submIssIOns on hIS part. When the board heard nothIng from Ms CoccIa she was contacted and asked to respond. She agreed that the case could be put before me and at her request she was gIven permIssIOn to make a submIssIOn on It. Her submIssIOn to the board was dated Apnl 29 2005 Counsel for the employer made a final wntten submIssIOn whIch was receIved on May 17 2005 In her wntten submIssIOn, the gnevor essentIally repeated the pOInts that she had presented on March 22, 2005 at the heanng Into thIS matter so I wIll not repeat It here 8 DECISION SectIOn 34(1) of RegulatIOn 977 to the Public Service Act provIdes as follows A person descnbed In subsectIOn (2) who IS aggneved about a workIng condItIOn or term of hIS or her employment may file a gnevance wIth hIS or her deputy wIthIn 14 days after becomIng aware of the workIng condItIOn or term of employment gIVIng nse to the gnevance For many years thIS board has adopted the well-known factors In Becker Milk to assess whether or not a gnevance If not filed In a tImely matter should nevertheless proceed. See for example Arkelian (supra) In thIS case, Ms CoccIa filed her gnevance seven months after a 20-day dIscIplInary suspensIOn was Imposed upon her The gnevor acknowledges that she was late, but asks thIS board to extend the tIme lImIts under the regulatIOn and hear her case In decIdIng whether to exerCIse my dIscretIOn and extend the tIme lImIts I must consIder 1) the reason for the gnevor's delay 2) the length of the delay and 3) the nature of the gnevance In Becker Milk havIng IdentIfied these factors, ArbItrator Burkett went on to hold If the offendIng party satIsfies an arbItrator notwIthstandIng the delay that It acted wIth due dIlIgence, then If there has been no preJudIce the arbItrator should exerCIse hIS dIscretIOn In favour of extendIng the tIme lImIts If, however the offendIng party has been neglIgent or IS otherwIse to blame for the delay eIther In whole or In part, the arbItrator must nevertheless consIder the second and thIrd factors referred to above In decIdIng If reasonable grounds eXIst for an extensIOn of the tIme lImIts 9 The only reason Ms CoccIa gIves for filIng her gnevance late IS that she belIeved that she had a nght to seek a JudIcIal reVIew of the employer's decIsIOn to dIscIplIne her She hoped to get the dIscIplIne process reversed In thIS way and possIbly be awarded costs for her applIcatIOn. She noted to the board that once she receIved the DIvIsIOnal Court's decIsIOn she filed her gnevance wIthIn 14 days There was some Inference In Ms CoccIa's submISSIOn to the board that she was merely folloWIng her counsel's advIce and therefore her gnevance should now be allowed to proceed. Vice-Chair HerlIch reJected thIS argument In Szabo (supra) The gnevor In that case pursued a cIvIl actIOn claimIng to be wrongfully dIsmIssed by the government after hIS employment was surplussed. The court subsequently dIsmIssed the actIOn on the grounds that It had no JunsdIctIOn to hear the matter The gnevor In that case appealed the decIsIOn to the Ontano Court of Appeal Some SIX months after filIng the appeal, the gnevor filed a gnevance wIth the Gnevance Settlement Board. In Szabo there was some Issue as to whIch forum was the correct one, SInce the gnevor's complaInt was In part based on a prevIOUS settlement of a cIvIl actIOn. In decIdIng not to exerCIse the eqUItable dIscretIOn to extend the tIme lImIts, Vice-Chair HerlIch held The concerns about the Impact of legal chOIce of forum IS a separate matter from the general and specIfic reqUIrements to file gnevances In a tImely fashIOn. Indeed, had such a gnevance been filed, there IS every lIkelIhood that the partIes mIght have been able to agree on the forum In whIch to first determIne the JunsdIctIOnalIssue perhaps even wIthout preJudIce to the nght to subsequently proceed In the other forum If necessary 10 In the case before me the gnevor was advIsed by her counsel that she could pursue the JudIcIal reVIew Her employer also advIsed her that she had a nght to gneve under the Public Service Act She chose to pursue the JudIcIal reVIew because she hoped through that forum to get her costs If she was successful Vice-Chair HerlIch also relIed on Wicken (GSB 2216/97) (Knopf) where the board declIned to exerCIse Its dIscretIOn to permIt the gnevance to go forward some sIxteen and a half months after a dIscharge, even though the gnevor In that case had been specIfically advIsed not to file a gnevance untIl after the cnmInal proceedIng he was Involved wIth was fimshed. In contrast to Wicken Supenntendent Thomas told Ms COCCIa personally that she could file a complaInt at the PSGB and her dIscIplIne letter advIsed her lIkewIse In wntIng. Moreover she had filed a gnevance wIth the board prevIOusly as part of a group so she was fully aware of her nghts As noted earlIer the DIvIsIOnal Court found In ItS reasons dISmISSIng the applIcatIOn that the gnevor had gIven no good reason for why she chose to proceed wIth the JudIcIal reVIew applIcatIOn Instead of a gnevance I lIkewIse find that there has been no good reason for the seven-month delay In filIng the gnevance and that the gnevor was not dIlIgent In advancIng her complaInt to the board. It stIll falls for me to consIder the length of the delay and the nature of the gnevance In decIdIng whether or not the dIscretIOn to extend the tIme lImIt ought to be exercIsed. The length of the delay In the CIrcumstances IS substantIal And the nature of the gnevance IS of partIcular Importance ArbItrators have held In the past that dIsmIssal cases may warrant an extensIOn of 11 the tIme lImIt because of the senous consequences of denYIng the nght to a heanng. However Ms CoccIa was not dIsmIssed as In Wicken nor dId she lose employment through the surplus process as In Szabo And even In these cases the GSB decIded not to extend the tIme lImIt. Ms COCCIa was gIven a 20-day suspensIOn and she contInues to work as an OperatIOnal Manager wIth the Mimstry I have to conclude that there IS no compellIng reason because of the nature of the case to Ignore the delay HavIng carefully consIdered the submIssIOns of the partIes and the factors as outlIned In Becker Milk I find that the gnevance IS not tImely and there IS no eVIdence to support the exerCIse of the board's eqUItable JunsdIctIOn to extend the tIme lImIt. Thus, the gnevance IS hereby dIsmIssed. 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