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HomeMy WebLinkAboutP-2010-1988.Burt.11-03-03 Decision Public Service Commission des Grievance Board griefs de la fonction publique Bureau 600 Suite 600 180, rue Dundas Ouest 180 Dundas St. West Toronto (Ontario) M5G 1Z8 Toronto, Ontario M5G 1Z8 7pO   Tel. (416) 326-1388 7pOpF   Fax (416) 326-1396 P-2010-1988 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Complainant Dennis Burt - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE.DWKOHHQ*2¶1HLOVice-Chair FOR THE COMPLAINANT Dennis Burt FOR THE EMPLOYER Paul Meier Ministry of Government Services Labour Practice Group Counsel WRITTEN SUBMISSIONSJanuary 28, 2011. Decision [1]7KLVGHFLVLRQGHDOVZLWKWKHHPSOR\HU¶VSUHOLPLQDU\REMHFWLRQWRWKH%RDUG¶V jurisdiction to hear the matter on the basis that the grievor had retired prior to his grievance, and therefore was no longer a public servant with the right to grieve at the time of his grievance. Factual Background [2]The grievor was a Young Offender Operational Manager on duty at the Elgin- Middlesex Detention Centre (EMDC) during a 37 day strike by the Ontario Public Service Employees Union in 1996. After a riot at the Bluewater Youth Centre during that strike, a group of young offenders were transferred to the EMDC, and made serious allegations of mistreatment at the hands of Operational Managers. In May 1996, a report concerning these allegations was filed, authored by the then Chief Advocate in the office of Child and Family Advocacy of the Province of Ontario. It made findings which concluded that there had been serious mistreatment. This grievance and application to the Board deal with the LPSDFWRIWKHUHSRUW¶VILQGLQJ,QHVVHQFH0U%XUWFRPSODLQVWKDWKLVFDUHHUDQG reputation were seriously negatively affected from 1996 until his retirement on August 30, 2010 by this report, which he considers flawed and unfair to him and other Operational Managers. He states that Operational Managers were scapegoated, and that serious allegations of assault on young offenders were - 3 - mishandled, so that innocent people, including himself, appeared to have participated in assaults, something that he did not do. [3]The grievance was filed on September 22, 2010, after Mr. Burt learned of the issuance of a decision of the Ontario Superior Court Simpson v. Ontario, ONSC 2119 Court File No.: 39378, dated August 31, 2010. That decision found that the report of which he complains was reckless and defamatory to the plaintiffs, who were respectively the Superintendent and an Operational Manager at EMDC at the time of the allegations by the Bluewater youth in 1996. The grievance asks for a number of remedies, including a letter of apology from the Province of Ontario, a clearing of his name, and compensation for damage to his reputation, health and career, including loss of overtime and promotional opportunities. The issue raised by the preliminary objection [4]The employer requested that that the Board exercise its powers under its Rule 9 (Dismissal Without a Hearing) to dismiss the complaint based on its position WKDWWKH%RDUGKDVQRDXWKRULW\WRKHDU0U%XUW¶V³ZRUNLQJFRQGLWLRQ´ complaint under the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, 6FKHG$ ³362$´ JLYHQWKDWKHZDVQRWa public servant, as defined in that legislation at the time he filed his complaint, as he was retired from the Ministry. - 4 - Statutory Provisions [5]The following provisions of PSOA were referred to in argument: 2. (2) For the purposes of this Act, the following are public servants: 1. Every person employed under Part III. 2. The Secretary of the Cabinet. 3. Every deputy minister. 4. Every employee of a public body 5. Every person appointed by the Lieutenant Governor in Council, the Lieutenant Governor or a minister to a public body. 2006, c. 35, Sched. A, s. 2 (2). « 3. Except where otherwise provided, a reference in this Act to a former public servant is a reference to a person who ceased to be a public servant on or after the day on which this section comes into force. 2006, c. 35, Sched. A, s. 3. « 56. (1) Sections 57 to 65 apply to public servants and former public servants other than public servants who work or, immediately before ceasing to be a SXEOLFVHUYDQWZRUNHGLQDPLQLVWHU¶VRIILFHF6FKHG$V   6DPHPLQLVWHUV¶RIILFHV (2) Sections 66 to 69 apply to public servants and former public servants who work or who, immediately before ceasing to be a public servant, worked in a PLQLVWHU¶VRIILFHF6FKHG$V   And from Ontario Regulation 378/07 under PSOA: 2. (1) A person who is aggrieved by his or her dismissal for cause under section 34 of the Act may file a complaint about the dismissal for cause with the Public Service Grievance Board, (a) if the person is eligible under sections 5 and 6 to file such a complaint; (b) if the person gives notice in accordance with section 8 of his or her proposal to file the complaint; and (c) if the person complies with the filing requirements set out in section 10. O. Reg. 378/07, s. 2 (1). - 5 - (2)Subsection (1) does not affect the right of a person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 2 (2). « 4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board, (a) if the public servant is eligible under sections 5 and 7 to file such a complaint; (b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and (c) if the public servant complies with the filing requirements set out in Section 1 O. Reg. 378/07, s. 4 (1). Eligibility to File a Complaint Eligibility generally 5. (1) Subject to subsections (2) and (3), a public servant or other person is eligible to file a complaint if he or she was appointed by the Public Service Commission under subsection 32 (1) or (2) of the Act to employment by the Crown. O. Reg. 378/07, s. 5 (1). (2) If any of the following circumstances existed at the material time, a public servant or other person is not eligible to file a complaint: 1. He or she was a member of a bargaining unit represented by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993 or under the Ontario Provincial Police Collective Bargaining Act, 2006. +HRUVKHZDVUHSUHVHQWHGE\WKH2QWDULR&URZQ$WWRUQH\V¶$VVRFLDWLRQ or the Association of Law Officers of the Crown under an agreement between the Crown and one or both of those Associations. 3. He or she was employed in a position that was classified under subsection 33 (1) of the Act as a term classified position. 4. He or she was employed for a fixed term, i. on a non-recurring project, ii. in a professional or other special capacity, or - 6 - iii. on a temporary work assignment arranged by the Public Service Commission in accordance with a program for providing temporary help. 5. He or she was employed for a fixed term for fewer than 14 hours per week, employed for a fixed term for fewer than nine full days in four consecutive weeks or employed for a fixed term on an irregular or on-call basis. 6. He or she was employed for a fixed term during his or her regular school, college or university vacation period or was employed for a fixed term under a co-operative educational training program. O. Reg. 378/07, s. 5 (2). (3) Subsections (1) and (2) do not affect the right of a public servant or other person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). O. Reg. 378/07, s. 5 (3). « 7. (1) A public servant is eligible to file a complaint about a working condition or a term of employment only if he or she had been employed continuously for at least six months before the deadline for giving notice in accordance with section 8 of his or her proposal to file the complaint. O. Reg. 378/07, s. 7 (1). (2) Despite subsection (1), the following public servants are not eligible to file a complaint about a working condition or a term of employment: 1. A public servant employed in a position that is classified under subsection 33 (1) of the Act as a position within the Senior Management Group. 2. A public servant who is employed as a Branch Director or as a Hospital Administrator. 3. A public servant who is employed in a position with headquarters located outside Ontario. 4. A public servant who is employed by the Crown as a lawyer. O. Reg. 378/07, s. 7 (2). The Arguments of the parties [6]The employer takes the position that the Board has no inherent jurisdiction and must have statutory authorization to adjudicate a complaint. More specifically, it has no power to adjudicate any complaint from a category of person excluded by its enabling statute. Reference is made to Cartwright v. - 7 - The Crown in Right of Ontario (Ontario Ministry Of Community Safety and Correctional Services)'HFHPEHU36*%3± 2 1HLO  [7]0RVWEDVLFDOO\WKHHPSOR\HU¶VSRVLWLRQis that, by definition under the PSOA, a public servant is one who is employed in a Ministry. Since Mr. Burt was no longer employed in a Ministry when he grieved, he is not eligible to file a grievance under the regulation. Further, the employer notes that Section 3 of WKH362$GHOLEHUDWHO\GLVWLQJXLVKHVD³SXEOLFVHUYDQW´IURPD³IRUPHUSXEOLF VHUYDQW´8QOHVVDIRUPHUSXEOLFVHUYDQWKDVEHHQGLVPLVVHGIRUFDXVHD former public servant has no right to grieve to the PSGB. [8]The employer submits that the PSOA clearly stipulates when its reach will extend beyond public servants and apply to former public servants, such as in section 56(1) referring to ethical conduct, set out above, as well as sections 108 and 109 referring to disclosing and investigating wrongdoing, and, under the regulation, conflict of interest rules. Since the legislature could have extended authorization to file working conditions complaints to former public servants, but did not, the %RDUGVKRXOGGLVPLVVWKHFRPSODLQWLQWKHHPSOR\HU¶VYLHZ [9]The employer further relies on the presumption that legislative change is purposeful, referring to the fact that the current wording of the PSOA restricting the filing of a working condition complaint to public servants is a change from its predecessor legislation, The Public Service Act (the PSA). The wording of action 34 (1) of regulation 977, the repealed regulation under the PSA, stated that a - 8 - SHUVRQ«Zho is aggrieved about a working condition or term of his or her employment may file a grievance". The employer argues that by expressly redefining and clarifying the class of persons entitled to file working condition FRPSODLQWVWREH³SXEOLFVHUYDQWV´UDWKHUWKDQ³SHUVRQV´WKHOHJLVODWXUHFOHDUO\ indicated its intention that the Board would be prevented from hearing complaints about working conditions from former public servants. [10]By contrast, the grievor urges the board to hear his complaint. Although the grievor acknowledges that he was retired and receiving a pension when he submitted his grievance on September 22, 2010, the grievor maintains that he submitted his grievance to the employer and to the Board, complying with all of their mandated legislative authority. +HQRWHVWKDWXSRQUHDGLQJWKH362$¶V SURYLVLRQVDERXWWKH%RDUG¶s legislative authority at, sections 21-27, and Reg. 378/07 there is no apparent documentation to support the employer's objection. [11] Further, the grievor refers to Section 7 (1) of Regulation 378/07 set out above, and argues that he has met all of those criteria in order to enable the board to hear his grievance. [12]$VWRWKHHPSOR\HU¶VUHIHUHQFHWRWKHCartwright decision, the grievor maintains that it does not support the employer's argument, because that decision deals with a very different situation of a bargaiQLQJXQLWHPSOR\HHJULHYLQJDPDQDJHU¶V position, something over which he agrees the Board had no jurisdiction. - 9 - Conclusions [13]+DYLQJFDUHIXOO\FRQVLGHUHGERWKVLGHV¶arguments, I find that the employer's interpretation of the statute is preferable. It is true that the Board is a creature of statute with limited jurisdiction. Specifically, the type of grievance that Mr. Burt has filed, "a working condition" grievance, presupposes a working condition, which means a feature of the work an employee does. Once the grievor retired, he ceased to be an employee, and ceased to have working conditions. Although the legislature has extended certain rights to former public servants, it did not extend the right to grieve their former working conditions. [14]I note that it also true, as VXJJHVWHGE\WKHJULHYRU¶Vargument, that there is no explicit statement in the PSOA or the regulations that retired public servants cannot grieve working conditions. Nonetheless, I agree with employer counsel that when it amended the PSOA in 2007, the Legislature put in a definition of public servant and changed the wording in a way which makes it quite clear that its intention was that, in order to grieve working conditions, a grievor has to be employed in a Ministry, rather than just an individual person who might or might not be so employed. [15]It is readily understandable that the grievor was prompted to attempt to fully clear his name now that the Court has concluded that the report he complains of was defamatory to others working at EMDC in 1996. Nonetheless, the Board cannot hear matters without the proper authority to do so. The key element here is that - 10 - there is no dispute that the grievor was retired at the time he filed his grievance. The grievor was therefore no longer employed in a Ministry when he grieved, and consequently, by application of the definition in the statute, no longer a public servant, and no longer had working conditions about which he could grieve. Moreover, although he is a former public servant, there was no suggestion that the nature of his grievance falls within the portions of the statute in which former public servants are specifically mentioned. In the circumstances, the Board has no authority to hear the grievance and it is hereby dismissed. [16]As a result, the hearing of this matter scheduled for March 10, 2011 is hereby cancelled. rd Dated at Toronto this 3 day of March 2011. .DWKOHHQ*2¶1HLO9LFH&KDLU