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HomeMy WebLinkAboutP-2017-2377.Aspiotis.19-02-07 Decision Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 PSGB# P-2017-2377 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Aspiotis Complainant - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Brendan Morgan Vice-Chair FOR THE COMPLAINANT Jim Aspiotis FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel SUBMISSIONS TELECONFERENCE June 6 and 22, 2018 October 5, 2018 - 2 - DECISION BACKGROUND [1] The Complainant, Mr. Jim Aspiotis, is employed by the Ministry of Community Safety and Correctional Services (“CSCS” or the “Employer”). The Complainant’s home position is located at the Employer’s Toronto South Detention Centre. There is a dispute between the parties as to the Complainant’s position at the time of the filing of the complaint. [2] The Complainant is a long service employee with the Employer. His employment with the Ontario Public Service commenced in 1993. His full-time employment as an ‘Operational Manager’ began in 1998. [3] On or about November 17, 2017, the Complainant filed a Form 1 Application with the Board complaining about the results of a’ restructuring’ that had taken place within the “Correctional Services Oversight and Investigations Unit” (CSOIU’). As a result, the Complainant was re-assigned to the position of ‘Deputy Superintendent’ at the Employer’s Toronto South Detention Centre. The Complainant alleged his home position was made redundant and, further, that he had been improperly reassigned to the position of Deputy Superintendent. [4] The Complainant took the position that the Employer’s decision to reassign him was not a work performance issue. In the alternative, if it was, the Employer had an obligation to manage his work performance before the reassignment took place. [5] The improper reassignment of the Complainant was, in his opinion was arbitrary and made in bad faith. One of the consequences of reassigning the Complainant was to make his Staff Inspector position redundant. [6] The Complainant submitted that by making his position ‘redundant’ certain rights should have been provided to him by the Employer. These include, but are not restricted to, “surplus rights”. [7] In the alternative, the Complainant alleged that the Employer’s actions should be understood as ‘disciplinary’ in nature which has lead to his being ‘constructively dismissed’ from his employment. [8] The Employer in the course of filing of its Form 2 Response and its subsequent written submissions raised a series of preliminary objections that the reassignment of the Complainant was not reviewable by the PSGB as the complaint fell outside of the Board’s regulatory authority. [9] The four preliminary objections raised by Counsel for the Employer are described in detail in paragraphs 21 through 25, below. - 3 - [10] Counsel for the Employer submitted that the Complainant’s complaint should be dismissed on any or all of its four preliminary objections. [11] In raising these objections the Employer relied upon Regulation 378/07 of the ‘Public Service of Ontario Act, 2016’ (the ‘Act’), specifically Sections 4.(2)2 and 4 and the Board’s jurisprudence. [12] The Employer did agree to engage in a mediation session. Counsel for the Employer advised the Board and the Complainant that should the mediation fail to produce a resolution the Employer intended to pursue the preliminary objections. [13] A mediation session was scheduled by the Board for April 26, 2018. MEDIATION SESSION [14] Unfortunately, the parties were unable to resolve the complaint at the April 26, 2018, mediation session. [15] At mediation the parties advised the Board that a Ministry of Community Safety and Correctional Services internal staffing review had the potential to resolve the issues outlined in the complaint as part of a broader resolution of staffing matters. The parties and the Board agreed to maintain a dialogue about the progress, if any, of this review and what impact it might have on the complaint later on in the calendar year 2018. [16] With respect to the Employer’s preliminary objections the parties were directed to provide written submissions, commencing with the Employer. The Complainant was then to provide its written response with the Employer being provided with the opportunity to reply to the Complainant’s submissions if it chose to do so at a date prescribed by the Board. THE MINISTRY REVIEW [17] The Parties filed their respective submissions in accordance with the time limitations set out by the Board. The parties and the Board agreed that the Board would wait for the Parties to advise the Board as to the progress of the Ministry review before attending to the Parties’ written submissions. [18] The Board scheduled a teleconference between the Board and the Parties for October 5, 2018. The purpose of this teleconference was to determine the status of the Ministry review and, if it was proceeding, what impact it may have on the Complainant’s complaint. [19] The prevailing opinion of the parties during the teleconference was that the Ministry review was not progressing in a timely manner. It was agreed that if the Ministry staffing review failed to address the issues pertinent to the Complainant - 4 - the Board would issue a decision on the preliminary issues in dispute. At the writing of this Decision it is the understanding of the Board that the Ministry review is on-going. It is unclear that even if completed it will assist in resolving this complaint. SUBMISSIONS OF THE PARTIES 1. Employer Submissions (i) Review of Preliminary Objections [20] The Employer’s preliminary motion sought to have the Complainant’s complaint dismissed on four grounds. There was some overlap amongst these four issues. [21] The first objection was that Regulation 378/07 Section 4. (2)2 of the Act prevents the Board from hearing complaints where the issue in question concerns the assignment of a “public servant to a particular class of position”. [22] A second objection raised by Counsel was that the Board lacked the jurisdiction to review the Employer’s “performance review” of the Complainant. Counsel for the Employer cited Regulation 378/07 of the Act, Section 4(2)4 in support of its position. [23] A third objection raised the issue of the Complainant’s employment status with the Employer. The Employer submitted that the Complainant’s home position as a Staff Inspector at the CSOIU had not changed. Further, the Employer challenged the Complainant’s assertion that, in the alternative, he had been ‘constructively dismissed’. [24] Finally, Counsel for the Employer submitted was that if the facts plead by the Complainant were proven true, the Board lacked any remedial authority to assist the Complainant. Specifically, if the facts that the Complainant were “true and provable” there is nothing within the Board’s remedial power to cure the complaint of the Complainant by “creating a new position” for him. [25] As by way of background, Counsel for the Employer stated that representatives of the Employer and the Complainant met on September 1, 2017 to discuss the Complainant’s work performance and, as a result, to advise him that he was being re-assigned to an alternative management position within the Ministry. The reassignment took place immediately. [26] Based on the submissions of Counsel the Complainant was temporarily re- assigned to an alternate position within the Ministry. The position in question was that of ‘Deputy Superintendent’ at the Toronto South Detention Centre. It was the submission of the Employer that the temporary reassignment of the Complaint resulted in his placement in a higher job classification with an increased salary. - 5 - [27] It is worth noting that the Complainant does not dispute that he was re-assigned to the position of ‘Deputy Superintendent” nor does he dispute that he received an increase in compensation alleged by the Employer. The Complainant does dispute that he voluntarily accepted the reassignment. The Complainant further disputes that he was adequately informed by the Employer as to the reasons for the re-assignment. [28] Counsel for the Employer submitted that notwithstanding the re-assignment the Complainant’s home position remained as “Staff Inspector” within the ‘Workplace Information Network’ or ‘CSOIU’. [29] Counsel for the Employer submitted that the Public Service Commission’s directive entitled “Employment Policy” described a demotion as “occurring when an employee is assigned to or voluntarily accepts a position in a classification with a lower maximum salary than the employee’s current position.” [30] Based on the definition contained in the directive, the Employer submits that the re-assignment of the Complainant to ‘Deputy Superintendent’ is not a demotion. [31] The Employer further denied that by re-assigning the Complainant the Employer had made his position at the Workplace Information Network redundant thus entitling him to surplus rights. [32] Counsel argued that the re-assignment related to recent performance reviews of the Complainant in his role as a Staff Inspector in the ‘CSOIU’. [33] The Employer further relied upon the fact that the Complainant had consented to the temporary re-assignment by executing a CSCS “Temporary Assignment Agreement” on September 11, 2017. Counsel stated that the Complainant entered into an extension of that agreement sometime after it expired on March 9, 2018. [34] Finally, the Employer denies that the Complainant was ‘constructively dismissed”. Counsel relied upon the facts that the Complainant continues to work full-time shifts, that the reassignment is temporary in a higher classification and higher rate of pay as evidence that the Complainant has not been constructively dismissed by those standards understood by the civil authorities. (ii) The Employer’s Application of Regulation 378/07 and Authorities [35] Counsel for the Employer submits that in order to proceed with this matter the Board must first turn to Ontario Regulation 378/07, Section 4.(2)2 and 4 to determine if it has the jurisdiction to review the transfer or temporary re- assignment of the Complainant. [36] Regulation 378/07, Section 4.(2)2 and 4 states that: - 6 - (2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment: 4. (2)2 The assignment of the public servant to a particular class or position. 4. (2)4 The evaluation of a public servant’s performance or the method of evaluating his or her performance. [37] Based on the facts described in the Complainant’s Form 1 Application and subsequent submissions it was the Employer’s position that the complaint be dismissed without the Board scheduling a hearing. [38] The Employer further stated that the Regulation at Section 4 (2)4 impedes the Board’s jurisdiction to review the Employer’s performance review of the Complainant. [39] Further, the Employer submitted that the Complainant had not been constructively dismissed. Counsel suggested that the Complainant had maintained his employment with the Employer in a higher job and pay classification pending the outcome of the Ministry review. The Employer further submitted that even had the Complainant been able to support his allegations Regulation 378/07 did not provide the Board with a mechanism to adjudicate constructive dismissals. [40] Counsel acknowledged that the Regulation enables the Board to entertain complaints regarding dismissal for cause, discipline and a working condition of employment. Constructive dismissal, on the other hand, is a matter where the civil courts have jurisdiction, not the PSGB. [41] In the alternative, it was submitted, if the Board was to assume jurisdiction its remedial authority did not extend to reinstating the Complainant. [42] Counsel for the Employer reiterated its position that the Section 4.(2)2 of Regulation 378/07 prevents the Board from hearing complaints challenging “the assignment of the public servant to a particular class of position.” [43] Based on the facts described in the Complainant’s documents, the Employer submitted that this complaint exclusively focuses on the reassignment of the Complainant to an alternative position. Neither the work performance review nor the reassignment itself Counsel submits are reviewable by the Board. As a result, the Board should dismiss the complaint without further enquiry. [44] In the alternative, Counsel submitted that the information provided by the Complainant did not satisfy the exceptions set out by the Board’s jurisprudence discussed below. - 7 - [45] With respect to the question of the Board’s jurisdiction over the transfer of an employee the Employer referred the Board to the decision in ‘’A’ Grievor v. MOHLTC P/14/90, August 13, 10991 (Springate)’. [46] Counsel directed the parties to page 19 of the decision. The Board discussed the question of the PSGB’s jurisdiction to hear evidence on employee transfers. It stated that while the Board generally lacked the jurisdiction to review transfers the decision did provide two examples where the Board was said to have remedial authority in certain “administrative” and “disciplinary” transfers. [47] The Board noted that it maintained jurisdiction to review a transfer where that transfer was disciplinary in nature. With respect to administrative transfers the Board had jurisdiction where there was evidence that the transfer was motivated by arbitrariness or bad faith by the Employer. [48] Counsel reiterated its submission that the Complainant had not adequately supported his position that his transfer was either disciplinary in nature or was made in an arbitrary, discriminatory or bad faith manner with any tangible facts. The Employer added that by the Complainant’s voluntarily entering into the “Temporary Transfer Agreement” and its subsequent extension the Complainant was estopped from challenging the temporary reassignment. [49] In submitting that the Board lacked remedial authority Counsel cited “Hugh McDonald PSGB) (O’Neil) et al v MCSCS, PSGB 2012-4718 November 7, 2014, 2014 CanLII 76836 (ON PSGB). [50] Counsel directed the Board to paragraph 17. This passage outlined the Board’s remedial jurisdiction with respect to the ability to provide a remedy. The decision proposes that there must be a nexus between “an existing term or condition of employment, related to the facts complained of, something that is part of the complainant’s contract of employment. This is something more than a belief that something is unfair, no matter deeply held. Secondly, there must be a breach of that term or condition of employment, and thirdly, there must be a link between that breach and a remedy that the Board is empowered to give.” [51] Counsel submitted that based on the Board’s decision in “McDonald” the remedy sought by the Complainant in this complaint, even if proven, was beyond the jurisdiction of the Board. [52] Counsel suggested that if the Board was to grant the Complainant the remedy sought, that being a transfer back to his home position at CSOIU it would be effectively creating a new term of employment by “guaranteeing” a home position. - 8 - [53] This, the Employer maintained was beyond the jurisdiction of the Board and as a result represented yet another grounds for the dismissal of the Complainant’s complaint without a hearing. [54] Based on one of or all of the above objections Counsel for the Employer submitted that the Complainant’s complaint be dismissed without the Board scheduling a further hearing. Complainant’s Submissions (iii) Complainant’s Response to the Employer Preliminary Objections [55] The Complainant provided a thorough response to the Employer’s submissions in a timely fashion. [56] Prior to his reassignment the Complainant held the position of ‘Staff Inspector’ within the CSOIU. The Complainant explained that there were many tasks attached to this position, including the gathering of intelligence about new and existing inmates, coordinating with other senior members of the Ministry and external police forces. [57] This position, in the submission of the Complainant, was highly specialized. He claimed that he was one of a very select group accepted to conduct this work. [58] The Complainant supplemented the knowledge and skills required for the Staff Inspector position by attending at conferences with other law enforcement organizations and governmental authorities. He advised the Board that he had spoken at these events and was highly regarded in the law enforcement and intelligence community. [59] The Complainant’s chronology of the events in question matched those described in the Form 2 Response and written submissions of the Employer. [60] In his written submissions, the Complainant focused on five aspects of the Employer’s written response. These are articulated throughout the Complainant’s submissions but can be summarized as follows: (a) The Employer failed to properly manage the work performance of the Complainant prior to his ‘removal’ from the CSOIU position at the Toronto South Detention Centre. The failure of the Employer to do so, the Complainant suggests, constitutes a violation of the ‘Employee Performance Policy (‘EPP’) of 2016; (b) The Employer otherwise failed to properly apply the EPP and other related human resources practices; (c) The information provided by the Employer in their submissions is false, unreliable or inaccurate and therefore should not be relied upon; (d) The Complainant did not voluntarily enter into a ‘Temporary Reassignment Agreement’ with the Employer. Instead the Complainant’s position at the CSOIU - 9 - was made redundant or, in the alternative, the Complainant was constructively dismissed; and (e) The behaviour and decisions of the Employer throughout the process were arbitrary and all decisions surrounding the employment status of the Complainant were subject to bad faith. [61] The Complainant submits that the Employer did not take appropriate steps before reassigning him to the position of Deputy Superintendent. [62] The Complainant acknowledges that the Employer reassigned him to the Deputy Superintendent position following a meeting between the Employer and Complainant on September 1, 2017. [63] The Complainant, however, submits that by unilaterally and expeditiously reassigning him the Employer failed to follow the Employee Performance Policy (‘EPP’) to which the Complainant and Employment are both bound. The Complainant provided a copy of the EPP to the Board and the Employer with its written submissions. [64] In the submission of the Complainant the EPP: “..sets out some of the conditions of employment as it relates to managing the performance of Ontario Public Service (OPS) employees. The EPP creates onuses on both the employee and employer to effectively address any perceived performance gaps.” [65] The Complainant submitted that the Employer was “obligated” by the EPP to manage his performance in accordance with Articles 5.7, 5.8 and 6.11. [66] Article 5.7 states that where the Employer determines the Employee is underachieving the manager is required to “place appropriate strategies” in order to enable to employee to improve. This could include the assignment of a coach or mentor or the conducting of regular meetings to assess the employees progress. [67] Article 5.8 enables the employer to impose progressive discipline upon the employee where appropriate. [68] Article 6.11 addresses the ability of the employer to develop strategies for improvement or, where these goals cannot be achieved to impose progressive discipline upon the employee. [69] The Complainant submitted the Employer had failed to follow any of these “obligatory’ processes before reassigning him. [70] The Complainant stated that until the September 1, 2017, meeting his work performance reviews had been generally positive. In his view no significant - 10 - concerns had ever been identified about his conduct as a member of the management group. [71] At no time, however, did the Employer suggest that they would endeavour to performance manage him during or after the September 1, 2017 meeting. In addition, the Complainant believes that certain information had been withheld from him at that meeting. The Complainant submits that the Employer has continued to deny relevant information to the date on which his submissions were filed with the Board. [72] Finally, the Complainant suggests that he is unaware of the reason for the reassignment. He speculates in his submissions that it may be that the Employer sought to move the CSOIU in a “different direction” without his participation in the Unit. [73] The Complainant denies that his reassignment to the Deputy Superintendent was or could be interpreted as a ‘promotion’ as the Employer submitted in its written materials. [74] The Complainant submitted that a “promotion” be interpreted as being permanent in nature. His assignment, however, was temporary. The Complainant submits that by referring to the reassignment as a “promotion” the Employer was obfuscating their intentions thus allowing them to violate the protections that he enjoyed under the EPP and other conditions of employment. [75] The Complainant further doubts that the workplace review discussed throughout the Employer’s submissions is a genuine review exercise and questions if it is indeed taking place as described by the Employer. [76] The Complainant supports this view by alleging that the “language used towards me was that I was “done at CSOI.” at the time of the September 1, 2017 meeting. [77] The Complainant challenges the Employer’s interpretation as to his signing the TPA. [78] The Complainant submits that he did not receive the TPA at the September 1, 2017, meeting. Despite the reassignment on September 1, 2017, the TPA was presented to him to sign on September 12, 2017, some twelve days after the initial meeting. [79] The Complaint alleges that he was intimidated into signing the document. He submitted that he had an honest belief that if he did not sign the Temporary Assignment Agreement it would result in the termination of his employment. [80] In addition the Complainant alleges that the Employer employed “threats, intimidation, power in a coordinated effort against me” to force him to sign the Temporary Assignment Agreement. - 11 - [81] Finally, the Complainant suggested that the entire episode left him despondent and hopeless. He further alleges that he attempted to bring the decline of his physical and mental health to the attention of the Employer. The Complainant submitted that he sought to take leave from work but that the Employer denied his request to take time away from the workplace. [82] Given all of the above, the Complainant submitted that the Employer did treat him in an arbitrary manner and in bad faith contrary to the position articulated by the Employer. [83] The Complainant challenges the Employer with respect to the nature of the reassignment. The Complainant does not accept that this assignment is temporary as he was advised by management that he would not returning to his position at the CSOIU and, further, that the responsibilities of the Staff Inspector were soon to be overseen by the Ontario Provincial Police. [84] As a result, the Complainant believes his position is now redundant and, therefore, the Employer’s decision to assign him to the Deputy Superintendent position was made in bad faith. [85] In the alternative, the Complainant submits that the Employer has constructively dismissed him from his employment. The role of the Deputy Superintendent, in the view of the Complainant, involves less responsibility than that of the Staff Inspector. Fewer employees are under his supervision and the Deputy Superintendent position carries less prestige than the Staff Inspector. In the view of the Complainant the Employer has made it very clear by their words and conduct that they would prefer that the Complainant no longer serve at the workplace but lack cause to terminate his employment. [86] The Complainant further submits that simply identifying an individual by compensation or rank alone is insufficient to determine whether promotion or, conversely a demotion, has taken place. In making this argument with respect to the issue of defining demotion as the reduction of a scope of duties the Complainant relied upon the decision of the Board in ‘Drakos v. Ontario (Community, Safety and Correctional Services), 2013 CanLII 88258 (ON PSGB) (O’Neil). [87] Finally, the Complainant submits that the Employer has unfairly disciplined him with respect to the Employer’s work performance and the subsequent reassignment that followed. [88] With respect to the Employer’s interpretation of Regulation 378/07, Section 4. (2)2 and 4, the Complainant submits that the Employer has behaved in bad faith and in an arbitrary manner. The Complainant notes that although he has not specifically identified discriminatory behaviour in his written submissions he is - 12 - confident that if this matter progressed to a hearing he would be able to lead evidence that would support such a claim. [89] The Complainant further submits that the Employer is in violation of the EPP, and the ‘Code of Conduct and Professionalism’, (‘CCP’), particularly sections 26 and 27. [90] The Complainant relied upon two authorities in support of his position that the Employer’s preliminary motion be forthwith be dismissed by the Board. [91] The first of these authorities is ‘Cardoza v. Ontario (Community Safety and Correctional Services), 2011 CanLII 86404 (ON PSGB), (O’Neil). It was the submission of the Complainant that this decision stood for the proposition that the employer-employee relationship in the OPS is guided by three principles. These are that the employer owes the employee a duty of fairness to the employee, that the employer is never to act arbitrarily, and employees are not to be constructively laid off or disciplined. [92] The second decision cited by the Complainant was ‘Drakos v. Ontario (Community Safety and Correctional Services), 2013 CanLII 88258 (ON PSGB), (O’Neil). The Complainant relied upon this decision of the Board in support of his submission that a perceived reduction in responsibilities could be viewed as a demotion as it relates to a job title. [93] As a result the Complainant submitted that the Employer’s preliminary objections be dismissed by the Board and the matter proceed to a hearing. DECISION (iv) Summary [94] It is without a doubt that the Complainant takes great pride in his position as Staff Inspector at the CSOIU. He has demonstrated a significant commitment to enhancing his understanding of the issues that face that position through his voluntary attendance at seminars and conferences and by integrating himself in the policing and security intelligence community outside of the Ontario Public Service. [95] It is largely because of this pride in his work and perceived success that the Employer’s decision to reassign him to the Deputy Superintendent position following the September 1, 2017, meeting shocked and upset the Complainant. [96] As the Complainant noted up until the September 1, 2017 meeting his work performances had received largely been positive reviews from the Employer. [97] The Complainant submits that the decision to remove him from the Staff Inspector position was arbitrary and made in bad faith. The Complainant added - 13 - that, if necessary, he believed that he could demonstrate that the Employer’s decision was also discriminatory in nature. By demonstrating arbitrary, discriminatory or bad faith the Board would have jurisdiction to hear the complaint notwithstanding the statutory language contained in Regulation 378/07 Section 4.(2) 2 and 4. [98] The Complainant further challenged the Employer’s description of the reassignment as being ‘temporary’. In the opinion of the Complainant, the Employer had no intention of returning the Complainant to the Staff Inspector position at the CSOIU. [99] The decision by the Employer to reassign the Complainant, did, in his submission, result in the redundancy of the Staff Inspector position. As a result, the Complainant claims that he should have been able to access certain surplus rights. [100] In the alternative, the Complainant claims that he was constructively dismissed from his employment. The Complainant stated that the new position enjoyed fewer responsibilities. Further, he suggested that the reassignment was interpreted by his colleagues as being inferior to that of a Staff Inspector. As a result, the Complainant took the position that this was, instead, a demotion. [101] The fact that the new position came with a pay rise was, in the opinion of the Complainant inconsequential to his employment status. The complaint emphasized that this was not about a compensation issue and, further, that a raise in pay did not preclude an employee’s transfer from being interpreted as a demotion. [102] Finally, the Complainant submits that he was wrongfully disciplined by the Employer with respect to both the Work Performance and the subsequent reassignment to the position of Deputy Superintendent. [103] As a result the Complainant submits that the Employer’s motion to dismiss the complaint without a hearing should be dismissed and a hearing be scheduled to determine the substantive issues in dispute. [104] The Employer conversely, takes the position that it was well within it’s authority to reassign the Complainant on a temporary basis to the Deputy Superintendent position. [105] The Employer further submits that in accordance with Sections 4 (2) 2 and 4 the decisions of the Employer are not reviewable by the Board when the issue in question is either an assignment of a public servant to a particular class or position or on matters involving the evaluation of a public servant’s performance or the method of evaluating the performance. - 14 - [106] In the alternative, Counsel for the Employer submits that the Complainant has failed to satisfactorily that the Employer has acted in an arbitrary or discriminatory manner, or, lastly, in bad faith when it reassigned the Complaint. [107] Regulation 378/07 Sections 4(2)2 and 4 are clear Counsel suggests with respect to the Board’s lack of jurisdiction to hear complaints about assignments and performance evaluations. [108] The Employer denies that the Complainant has ever been the subject of discipline with respect to his role as a Staff Inspector or a Deputy Superintendent. (v) Conclusion [109] If the Complainant had simply challenged the Employer’s authority to either reassign him to the Deputy Superintendent position or impose an unsatisfactory work performance it is probable that the Employer’s preliminary submissions would have resulted in the complaint being dismissed. [110] However, in this matter, the Complainant has raised the possibility that the Employer’s actions has been motivated by arbitrary, discriminatory and bad faith reasons. The Complainant further submits that he has been constructively dismissed from his position by virtue of the Employer making his position redundant or by constructively dismissing him from his position as a Staff Inspector. [111] Further, the Complainant alleges that he has been improperly disciplined with respect to the Employer’s work performance and subsequent reassignment of the Complainant to the Deputy Superintendent position. [112] While the Complainant’s submissions are short on specific details it is reasonable to state that all of the allegations made above are described throughout his materials. [113] The Employer, on the other hand, acknowledges that the Board may have jurisdiction to hear a complaint where bad faith, discrimination or arbitrariness has been alleged but submits that the Complainant has not demonstrated that the Employer was engaged in such behaviour in this matter. [114] The Employer categorically denies that the Complainant has been the subject of discipline or was otherwise constructively dismissed from his employment. [115] At paragraph 43 of the Board’s decision in ‘Drakos v. Ontario (Community Safety and Correctional Services), 2013 Can LII 88258 (ON PSGB) (O’Neil), the Board stated that: - 15 - “The Board’s jurisprudence has long recognized its jurisdiction to deal with allegations that treatment by the employer is arbitrary, discriminatory or in bad faith, or a breach of policy such as a Statement of Ethical Principles.” [116] The Board went on to state in the same paragraph that: “An employer may be found to have acted arbitrarily where the action is taken is unreasonable or unsupported by a valid business purpose.” [117] In reviewing the materials provided by the parties the most significant issues before the Board is whether the Complainant has adequately supported the allegations that the Employer has engaged in arbitrary, discriminatory or bad faith behaviour in the reassignment of the Complainant to the Deputy Superintendent position. [118] With respect to ‘temporary work assignment’ was that assignment arbitrarily directed at the Complainant and therefore not part of a workplace-wide review and is it a permanent reassignment away from the CSOIU? [119] Secondly, was the Employer’s work performance evaluation in accordance with the EPP or was the actual job performance review and the results arbitrarily determined by the Employer to support its decision to reassign the Complainant? [120] Finally, is there evidence to substantiate the Complainant’s complaint that he was the subject of discipline with respect to his transfer and could the Employer’s behaviour be construed as tantamount to ‘constructive dismissal’. [121] Based on the written submissions before the Board it is difficult, if not impossible, to come to any definitive conclusion about any of these issues. The Employer denies any of the conduct alleged has taken place while the Complainant has done his best to adequately respond to the Employer and to offer a particular interpretation of the events. [122] As a result the Board directs the parties to attend at the Board where a hearing will be held to determine whether the Employer’s conduct in evaluating the Complainant’s work performance and subsequent reassignment to the position of Deputy Superintendent was made in an arbitrary or discriminatory manner or resulting from bad faith on its behalf. [123] Secondly, the Board will hear evidence to conclude whether the Employer has either disciplined the Complainant or has engaged in such behaviour that that the Board could conclude that the Complainant has been constructively dismissed. [124] The parties should be prepared to call witnesses for the purpose of providing viva-voce evidence, if any, and to provide final legal argument in support of their respective positions on the three issues outlined above. - 16 - [125] The Board will contact the parties in its usual course to schedule a hearing date or dates for this matter. Dated at Toronto, Ontario this 7th day of February, 2019. “Brendan Morgan” _______________________ Brendan Morgan, Vice-Chair