HomeMy WebLinkAboutP-2005-1033.Ted de Boer.06-05-10 Decision
Public Service Commission des Nj
Grievance Board griefs de la fonction
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P-2005-1033
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Ted de Boer Grievor
- and -
The Crown In RIght of Ontano
(Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer
BEFORE Kathleen O'NeIl Vice-Chair
FOR THE GRIEVOR Ted de Boer (Gnevor)
Zoltan RonkaI (RepresentatIve)
FOR THE EMPLOYER Mr Sunee1 Bahal
Counsel
Mimstry of Government ServIces
HEARING February 8 2006
WRITTEN March 8 2006
SUBMISSIONS
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DeCISIon
ThIS deCISIOn deals wIth prelImInary motIOns brought by the employer In respect ofMr Ted
DeBoer's gnevance whIch alleges that he was dIscnmInated agaInst when the employer faIled to
accommodate hIS dIsabIlIty from January 2002 untIl hIS retIrement In June 2003 The gnevance
was filed In March, 2004 over eIght months after the retIrement, whIch leads the employer to
obJect to the Board's heanng the matter because of the delay In gneVIng, as well as on the basIs
that the gnevor was no longer an employee or a publIc servant when he gneved. The employer
also relIes on the fact that the gnevor voluntanly retIred, at a tIme when, to hIS knowledge, there
were temporary assIgnments avaIlable to hIm and possIble permanent posItIOns In the near
future, consIstent WIth hIS restnctIOns Further the employer maIntaInS that a number of the
remedIes requested by the gnevor IncludIng retroactIve pay for performance are beyond the
JunsdIctIOn of the Board.
By way of background, the gnevor was an operatIOnal manager at Guelph CorrectIOnal Centre
when he retIred In 2003 He had sustaIned a workplace InJury In 1992, whIch lead to hIS receIpt
of workers' compensatIOn benefits He returned to work wIth modIfied dutIes, untIl hIS condItIOn
became chromc, and hIS doctor advIsed In January 2002 that he was to have no Inmate contact.
The employer's posItIOn IS that It dId not have work that met that restnctIOn untIl late 2002, but
that they contInued to look for work whIch would meet the gnevor's restnctIOns The gnevor's
posItIOn IS that he named certaIn Jobs In January 2002 that were wIthIn hIS restnctIOns but the
employer dId not assIgn hIm to them The gnevor dId not dIspute the employer's statement that
he made no complaInt about the faIlure to return hIm to work at the tIme Mr DeBoer went back
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on workers' compensatIOn benefits whIch were augmented by certaIn credIts untIl June 2002
By the tIme those credIts were exhausted, the gnevor sought to return to work.
In December 2002, the employer advIsed that aJob had been found on a temporary basIs whIch
met hIS restnctIOns, and that they would contInue to look for a permanent one The gnevor was
then offered the optIOn of beIng declared surplus and retmng wIth an unreduced penSIOn wIth hIS
Factor 80 Instead ofreturmng to work at aJob wIthIn hIS restnctIOns, and beIng on paid leave
untIl hIS retIrement on June 25 2003 The gnevor accepted that offer and both he and a
representatIve of the employer Barry Thomas, Semor TransItIOn SpecIalIst, sIgned a letter dated
February 7 2003 whIch reads as follows
The Mimstry of PublIc Safety and Secunty CorrectIOnal ServIces DIVISIOn IS
commItted to assIstIng staff to safe and tImely return to work. ThIS IS achIeved
through the use of IndIvIdualIzed workplace accommodatIOns Over the past year
Guelph Treatment Centre has endeavoured to find sUItable work that would fit
your medIcal restnctIOns At thIS tIme there are temporary assIgnments avaIlable
wIth possIble permanent posItIOns In the near future Consequently we are
prepared to offer a posItIOn consIstent WIth any accommodatIOn needs you may
reqUIre
However It IS our understandIng that you are entItled on June 25 2003 to access
your Surplus Factor 80 Therefore, the employer IS wIllIng to abolIsh your
posItIOn as OM16 OperatIOnal Manager Guelph CorrectIOnal Centre effectIve
February 10 2003 However as your Surplus Factor 80 date IS June 25 2003 the
employer IS prepared to allow you to commence non-workIng notIce from
February 10 2003 up to June 25 2003
As a result you wIll then be able to begIn reCeIVIng an actuanal unreduced Surplus
Factor 80 pensIOn on June 26 2003 You wIll also receIve payment for any
outstandIng accumulated credIts as well as legIslated severance
I realIze the past several months have been very dIfficult for you and on behalf of
the RegIOnal DIrector Western RegIOn I wIsh to thank you for your many years
of dedIcated servIce to the Ontano CorrectIOnal System and for your co-operatIOn
dunng thIS dIfficult transItIOn penod.
Please IndIcate your acceptance and understandIng of thIS actIOn by sIgmng a
copy of thIS letter
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In March, 2004 the gnevor became aware that he could have argued that the employer should
have been lookIng more wIdely for accommodated work throughout the year 2002 It IS now the
gnevor's contentIOn that the employer was lookIng too narrowly at the correctIOnal InstItutIOn In
whIch he worked, whereas there was the whole publIc servIce avaIlable to consIder for Jobs
wIthIn hIS restnctIOns The gnevance, whIch flows from that posItIOn, was filed on March 19
2004 A meetIng was held wIth the gnevor hIS representatIve Mr RonkaI, and the RegIOnal
DIrector on May 10 2005 At that tIme the settlement requested was recorded by the employer
as follows
1 Employment credIts used from January 2002 to July 2002 restored
2 From July 2002 to February 10th 2003 WSIB dIfference In momes lost
3 Pay for Performance - January 1 st 2002 to March 1st 2002
4 Pay for Performance - Apnl 1 st 2002 to March 31 st 2003
5 Pay for Performance - Apnl 2003 to June 25th 2003
6 Due to the fact you dId not receIve Pay for Performance you dId not receIve
your last raise on Apnl 1st 2003 therefore you wIsh 1 95%, retroactIve from
Apnl 1 st 2003 to June 25th 2003
7 Lost momes from the 2002 OPSEU stnke, as you were not gIven the
opportumty to partIcIpate
The first prong of the employer's obJectIOn IS based on the submIssIOn that the gnevance was
filed well after the 14-day tIme lImIt set out In s 34(1) of RegulatIOn 977 under The Public
Service Act as follows
34 (1) 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 OReg. 168/96 s 6 (1)
(2) SubsectIOn (1) applIes to a person who has been employed In the publIc
servIce under the JunsdIctIOn of a deputy mImster contInuously for at least SIX
months before the deadlIne under that subsectIOn for filIng a gnevance OReg.
168/96 s 6 (1)
Further the employer notes that the gnevor gneved In March 2004 but dId not refer the matter
to the Board untIl June, 2005 addIng a further penod of delay The second prong of the
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prelImInary obJectIOn IS more fundamental The employer maIntaInS that It should not be
reqUIred to lItIgate a gnevance from someone who has voluntanly retIred and that the gnevor
should not be gIven access to the gnevance procedure afforded to publIc servants SInce he IS no
longer one Counsel notes that the statute has specIfied that people can gneve after they are no
longer In the employ If they are removed or dIsmIssed from theIr employment, but there IS
otherwIse no provIsIOn for ex-employees to gneve
The gnevor and hIS representatIve resIst the prelImInary motIOns on the basIs that the gnevor
gneved when he became aware In March 2004 of the full extent of hIS nght to accommodatIOn of
hIS dIsabIlIty and thus he has gneved In a tImely manner under s 34(1) Further the gnevor's
submIssIOn IS that the Issue of accommodatIOn IS a human nghts matter whIch should be
consIdered sufficIently Important to allow the Board to extend any tIme lImIts, and to be
undeterred by the fact that the gnevor was retIred when he gneved. The gnevor's representatIve
pOInts out that the terms of the Workplace DISCnmInatIOn and Harassment PreventIOn polIcy
(WDHP) provIdes that It applIes to
-former employees, generally wIthIn SIX months of separatIOn from the OPS who
belIeve they are dIscnmInated agaInst or harassed dunng theIr employment In the
OPS
Furthermore, although tIme frames are presented wIthIn the polIcy the preamble to the SectIOn
entItled "Time frames" reads as follows
WhIle every effort must be made to comply wIth the folloWIng tIme frames,
faIlure to so does not vOId the process
The gnevor relIes on the WDHP polIcy as the source In employer polIcy for the nghts floWIng
from the Human Rizhts Code, IncludIng the duty to accommodate dIsabIlItIes As to the
voluntary retIrement Issue, Mr RonkaI submItted on the gnevor's behalf that he had lIttle real
chOIce except to retIre gIven hIS InJury as he was aware that hIS optIOns wIth the Mimstry would
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be lImIted In the future GIven that the gnevor was not aware of the full extent of hIS nghts to
accommodatIOn, It submItted that It IS unknowable Ifhe would have made the chOIce he dId, had
he been aware that he mIght have been able to obtaIn accommodatIOn elsewhere In the publIc
servIce
The employer responds by submIttIng that even though It IS true that Human Rights statutes have
a quasI-constItutIOnal status, there are procedures and tIme lInes Involved In filIng complaInts
dealIng wIth such Issues, as Illustrated by the rulIngs of the Ontano Human Rights CommIssIOn
recorded In Dubash and the Ministry of Health, PSGB # P/00IO/90 (Willes) See also Jones and
the Ministry of Correctional Services PSGB #P/0009/92 (Willes) for an example of a gnevance
InvolvIng an allegatIOn of harassment whIch was not heard by the Board because It had not been
gneved In a tImely manner
***
The most basIc provIsIOn regardIng the Board's gnevance procedure IS s 34(1) of RegulatIOn
977 of the Public Service Act, set out above Because the wordIng of that provIsIOn focuses on
when the gnevor became aware of the matter he IS complaInIng about, the first questIOn for
determInIng whether a gnevance IS tImely relates to the gnevor's personal, subJectIve, state of
knowledge or awareness SettIng aSIde for a moment the questIOn of whether the gnevor
retaIned the status to gneve after hIS retIrement from the publIc servIce, It IS Important to note
that, even for persons stIll In the employ of the publIc servIce, the Board has held that the
subJectIve portIOn ofs 34(1) must be tempered wIth the obJectIve component ofa consIderatIOn
of the tIme elapsed SInce the events complaIned of and consIderatIOns of ItS Impact on the
employer Delayed awareness of theIr nghts by gnevors has not lead to an open-ended nght to
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gneve long after the events complaIned of See, for Instance the analysIs In Amirault and
Ministry of the Solicitor General and Correctional Services PSGB # P/0028/94 (Lynk) as well as
Kroeger and Ministry of the Solicitor General and Correctional Services PSGB # P/0060/98
(Willes) and Lay and Ministry of the Solicitor General and Correctional Services PSGB #
P/0014/95 (LeIghton) two cases In whIch It was held that gnevors must take some responsIbIlIty
for InformIng themselves and, In the absence of compellIng cIrcumstances, the gnevances were
dIsmIssed on the basIs of delay Although the pen ods of tIme Involved In those cases was longer
than on the facts of thIS case the same consIderatIOns apply and are heIghtened by the other
elements of thIS case, most notably the Intervemng agreement to retIre For a further dIscussIOn
of the Board's tImelIness Junsprudence, see the decIsIOn In Marshall and the Ministry of Health
and Long-Term Care O'NeIl PSGB #P-2004-2738 relIed on by the employer and the cases cIted
thereIn.
The usual elements taken Into account by the Board In decIdIng whether a case should go
forward, despIte a lengthy lapse of tIme sInce the events complaIned of, Include the nature of the
gnevance the reasons for the delay the length of the delay and the questIOn of preJudIce to the
employer
TurnIng to those factors as found In thIS case, the basIc nature of the gnevance IS an allegatIOn of
faIlure to accommodate gOIng back to 2002 The employer urges a findIng that It would be
preJudIced In lItIgatIng a case of thIS kInd, whIch would reqUIre reconstructIng events and Job
opportumtIes eXIstIng over two years pnor to the gnevance Employer counsel submItted the
case of OP SEU (Smith) and the Ministry of Northern Develovment and Mines (Mikus)
GSB#2002-0243 0244 and 1243 In whIch the Gnevance Settlement Board found that, In a case
of delay In gneVIng a J ob postIng, the employer would be preJudIced In tryIng to reconstruct the
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CIrcumstances of a number of years ago In not Just one office but several, whIch would be
sImIlar to what would be reqUIred to lItIgate thIS case Further gIven that there was no obJectIOn
to the faIlure to return the gnevor to work In January 2002 or request for accommodatIOn from
January to June of 2002, the employer was not In a posItIOn to have preserved records or
eVIdence as It would have If there had been an earlIer claim.
The length of the delay from the maIn actIOns complaIned of, the faIlure to accommodate In
2002, ranges from almost 15 months, to more than two years, amounts of tIme that have lead to
dIsmIssal of gnevances, even where the gnevance concerned a dIsmIssal See for Instance
Arkelian and Ministry of Health PSGB #P/0044/92 (Willes) and Johnson and Smith and the
Ministry of Community and Social Services PSGB # P/0003/99 (LeIghton)
In thIS case, the reason for the delay IS that the gnevor had not prevIOusly been aware that there
mIght be a wIder oblIgatIOn on the employer to seek a J ob for hIm outsIde the correctIOnal
InstItutIOn In whIch he worked. The gnevor IndIcated that he gneved wIthIn fourteen days of
becomIng aware of thIS broader nght to accommodatIOn, and argued that the delay should not be
consIdered to start runmng untIl he learned of hIS nghts In March 2004 ThIS aspect of the case
IS very sImIlar to the sItuatIOn In Lay and Kroezer cIted above, where It was found that delayed
awareness was not sufficIent to overcome the other factors In those cases
I have carefully consIdered all the arguments made as to why I should allow thIS matter to
proceed and have concluded that they are not sufficIent In thIS case There are good reasons to
exerCIse my dIscretIOn to dIsmIss thIS case on the basIs of undue delay These Include the fact
that the overall delay from the tIme of the events complaIned of IS of a length that has lead to
dIsmIssal In many Board cases Further although the gnevor had a delayed awareness of the full
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nature of hIS complaInt, neIther thIS, nor the nature of the gnevance, essentIally to recoup wages
that he would have earned If he had been offered work wIthIn hIS restnctIOns earlIer are so
compellIng as to overcome the preJudIce to the employer whIch would be Involved In allowIng
the matter to proceed. In thIS case, that preJudIce would Include not Just the dIfficulty of
reconstructIng the events of several years ago concernIng Job opemngs potentIally In several
areas of the publIc servIce, but also the preJudIce whIch would flow from allowIng the lItIgatIOn
of thIS gnevance despIte events whIch took place In the Intenm, IncludIng the gnevor's
retIrement.
As noted above, dunng the tIme elapsed SInce the events complaIned of, the gnevor voluntanly
retIred Instead of acceptIng the employer's offer of accommodated work, by sIgmng the
document dated February 7 2003 set out above After that date, the employer was entItled to
consIder any Issues of accommodatIOn at an end, especIally as the gnevor acted on the agreement
and departed five months later In June To allow the Issue of the accommodatIOn of the gnevor's
dIsabIlIty to be reopened based on a gnevance filed eIght months after the retIrement, over a year
after the agreement to retIre and two years after the now dIsputed decIsIOns In early 2002, would
be unduly preJudIcIal to the employer's legItImate expectatIOns, based on the sIgned agreement,
that the gnevor was no longer requestIng accommodatIOn and that the employment relatIOnshIp
was severed. Once an employment relatIOnshIp IS voluntanly severed by way of an agreement
such as the one sIgned In February 2003 an employer IS generally free to conduct Itself on the
basIs that there wIll be no future oblIgatIOns to the former employee once It has complIed wIth
ItS sIde of that agreement. There mIght be specIal cIrcumstances In some other case that would
form an exceptIOn to that general rule, but those present In thIS case are not sufficIent to base
such an exceptIOn. Although the gnevor submIts that he dId not have much chOIce about sIgmng
the agreement, there was no dIspute that he had over a month to thInk about It. He was free to
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get further advIce about hIS chOIces, IncludIng the duty to accommodate, at that tIme There are
no facts before me whIch gIve any suggestIOn that the gnevor was under any type of duress The
gnevor may have found the chOIce dIfficult, and wIshed that the chOIces before hIm were more
vaned, or that the employer had offered to return hIm to work earlIer In 2002, but that does not
constItute duress The terms of the February 2003 document make It clear that he was declImng
the employer's offer of accommodatIOn and takIng paid leave untIl retIrement WIth an actuanally
unreduced penSIOn Instead. There IS no dIspute that the gnevor voluntanly retIred In June 2003
he does not seek to undo the resIgnatIOn or to be reInstated to employment. None of hIS remedIal
claims extend past the date of hIS retIrement.
It IS very Important as a matter of polIcy that agreements voluntanly sIgned be upheld, or
workplace partIes would not be able to have confidence In the finalIty of agreements made and
theIr abIlIty to govern theIr affairs accordIngly The questIOn of finalIty of agreements IS
fundamental to the entIre legal system, and IS especIally Important In the ongOIng operatIOn of
any workplace OtherwIse, partIes would be constantly wondenng whIch agreement they could
count on, and whIch one would be subJect to beIng reconsIdered Indefimtely In the future It
would be overly preJudIcIal to the employer and all concerned to create a precedent whIch would
amount to a questIOmng of the finalIty of the agreement between the partIes that lead to the
gnevor's voluntary retIrement, and the severance of the employment relatIOnshIp that followed.
GIven the above findIng, It IS not necessary to address the second prong of the employer's
motIOn whIch engages the questIOn of the extent of any nght to gneve for ex-employees who
have not been dIsmIssed or removed from employment.
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In the result, for the reasons set out above, the gnevance IS dIsmIssed.
Dated at Toronto thIS 10th day of May 2006
en G O'NeIl, Vice-Chair