HomeMy WebLinkAboutP-2017-2377.Aspiotis.19-02-07 Decision
Public Service
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Commission des
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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
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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
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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.
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[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
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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.
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[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:
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(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.
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[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.
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[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
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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
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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.
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[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
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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
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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.
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[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:
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“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.
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[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