Loading...
HomeMy WebLinkAbout1976-0035.Ferguson.77-01-07.. ........ _. .......... ...... _ ....... f _ -G~:IEVA:~CESETT~.EME~T Setween: Before: iN THE MATTER OF 4N AREITRATiON Under The CROWN EMPLOYEES COLLECTIVE 3ARGAiNI:IG ACT Before THE GRIEVANCE SETTLMENT BOAZD Yr. Harry S. Ferguson The Grievor And Ministry of Industry and Tcurism The Emplcyer 9. M. Beatty - Chairman S. R. Hennessy - >!ember G. ~Griffin - li!ember For t.';e Grievor S. T. Goudoe, Cameron, Brewin & Scott C. G. Paliare R. Herman ior the Emoloyer T. Storse, Hicks, Morley, Hami:: 317, Stewart and Storje W. A. Fowler W. E. Rcoke The grievance of Mr. Harry Ferguson, against his "improper" and unjust dismissal, puts in issue, by reason of a preliminary objection advanced by his Counsel, an important procedural issue, of significance to all employees in the bargaining unit, as to the manner in which the dismissal of a public servant must be effected. That preliminary objection, which throws in sharp relief the interface between The Public Service Act, R.S.O. 1970, c.386 as amended and The Crown Employees Collective Bargaining Act, S.O. 1974, c.135, requires this Board to determine whether, on the signing of a collective agreement ,between the parties on March 12, 1976, the obligations imposed upon the employer in s.31 of Ontario Regulation 749 and particularly subsections 4-12 thereof, remain in force and effect for those . employees who fall within the bargaining unit which is covered by that collective agreement. Specifichlly then, and on consent of both parties, this Board must determine whether, in effecting a dismissal under s.22(3) of The Public Service Act, of a public servant who is covered by a collective agreement, the Deputy Minister is obliged to hold an internal Ministerial hearing under s.31 of the Regulations promulgated under that Act. Section 22(3) of The Public Service Act and 5.31 of its Regulations provide: 22f31 A deputy minister mq .for case dismiss from empZoynent in cccordozce L;ith the re,cuZctiors c2x.v p&Z-k secant in his ministry. 31.-(l) (21 13) Cdl (5) lJhere tize Deputy Minister suspends a pbZic servant from employment pending an investigation., the period of suspension shnZZ not exceed twenty working days. Notithstanding .&section 1, where in the opinion of the Depu+y Minister, an aa%tionaZ period of time is required to compZete the investtgction, the Deputy Minister may renew the perzzod of szspension for not more than twent-9 working days in each case, for szcch additional periods as are considered necessary. Where a pubZic servant, (aa) habitvaZZy faiis to comply with atterze regdations or direct+Jes; (3) absents XmseZf b5thout permission during his presc-ribed hours of dtity; Cc) reports for duty w%Ze izapabie of perfotir*i his diities; _’ Cdl misuses government property or uses government property or services for purposes.other than government business; or (el fcils to obey the instructions of his superior, and vhere, in the opinion of his Dep.@ Xnister, the circwnstcnces do not moimt to ccxse for removal from emloyment or dismissaZ i;ncler section 22 of the Act, -the Decuty HGLster, or an official of his nr3nistry who is authorized Sy him, mcy, after c hearirg, impose a fine equal to r.t more thin five &is ?ay. O.iieg. 666/73, s.1, part. Where, in the opinia of c deputu lminfster, there may e-mist cause for remcva? of a publ:c servant from empzoyment or for disntissai of a public servazt from empzoyment, the depu@ ,+nister shcZZ appoint a time for and hold a kecring. The pubZic serunt zhose ccnduct is tF.e subject of a hearing pursuant to this section .sFzZZ be @very reasondie mtice of the haz-ing 3y tFs . -4- (6) A notice of a hearing shaZZ irzkde, (al a sLkztement of the tLme, pkce and purpose cf the hearz5-q; (bl reasonabze infc.3nation of any cZZegctiors with respect to the conduct of the pubZic servant tktt may be rezevant to the hear-kg; axxi (cl c statement that -If the public servant does not attend the hear&o, the hearing may be proceeded with in hzs absence and he wiZZ not 3e entitZed to 0;~ fu&her notice in the ;Iroceedings. (7) The ptcbzic servant I;hose corduct is tire subject of a hearing magi ct the heariq, (aj be represented by an emptcyee re?re- sentakve; (3) caZZ ad eztine wiinesses cd pesent his ayments am? s~uhissions; 0777 Cc) cond~uct cross-ecaminations of Iw-itnesses reasona&Zyu required for a ,fuZZ a& fair discZoswe of the facts in reZation to which they have -+en eviderze. (9) Xhere a Sepu*d minister delegctes to a pubiic servant in his mini&q his cowers ax2 duties in respect of a kearing mentzoned in this section, the deZegate sFaZZ hoZd the hearing and shaZZ report thereon in writ&g to the deputy minister. (9) 17% report of the delegcte to the de?u?g minister sFzZZ incZude tite record of the hear:ng *zu? the reccnnznaktion of the deiegcte together with his reasons therefor. (101 A deputy knister or his delegate I;FI hoZa?s a hearGq pursuant to this section shaZZ compiZe a record of the proceedings that shaZZ incZkde, la) the notice of tire %eariy; (3) aZZ &7cJnentq evi2ence prc&ced at tke hearing; Id) the text of any wrzztten s-ubnn~ssions or arguments presented at ths hearing. (11) A witness at a hearing ~uzuant to this section is entitzed tc toe advised’bz Ks counsei! ‘or agent as to his rQhts, aut the counseZ or cgent 07 a witness is not entitZed to be present except when the witness is givir,g evidence md may +ake ro other vart in the without leave of the deputy m&ister or his hearing delegate holding the hearing. (12) Where, after izold-hg a heming ad corsiderir~ the evidence produced or given ana. the submissions or arguments vresented at the hearirg or, where the hearing is held by a deZecate, after considerbg tize repor of the &Zegcte, c deputy minister is oi the ooinion that tkere ezists cause ,for removaZ -from emrioyment or for ZismissaZ frorom empioy7er.t 0-f c pub’,& semcnt ahose coz2uct was the s-mdect cf fite hea.zzn~, the &+utzz jmi~dster may remove or dimiss the p&Zic servcnt frm empzoynent. 113) PIhere a c$.ndY~ tinister dknisses c: puSlie serxnt i -Yom e.mpZoyment for muse, the c*eputy nkaister sizcZL?, la) deiiver to the pubZic servant a notice of the di.smLssaZ setting forth the reasors there,for and advisim him of his right to a hearing 3y the iwli'l Service G-Kevance 3oard; and (bl send a notice o$ the dis.m-isscZ to the Comnissicn zk the Pnovincia7, .h&~*:tor. 1141 In this section, ‘!emoZoyee representative” means a person 1;Fo is no&clted by c pt;jli,- SeFJcTzt whose con&et is the subj’ect of a hearirg veins*uant to this section to cct cn beYhaZf of the $lic servant ir. respect of the T2edr.g. 0. Zeg. lSE/?4,s.l. So posited, the resolution of this issue, by virtue of s.29(3) of The Public Service Act, ultimately turns on whether it can be said that s.31 of The Regulations and particularly subsections 4-U thereof are in conflict with any provisicns in the ccllective, agreement described below. S.ZC(3) provi'des: .:x.:::::: I , ,. -6- Any provision in a coZZective agreement that is in confLict tith a provision. of a re&.ztion as it affects the eployees of’ a baqcining unit covered by the coilecttve coreement prevails over the provisicn of the re~Za2ion. 1972, c.96, s.7(31. In turn, in Article 30 of the Collective Agreement, the parties have agreed that: 30.Z It is the intent of this Agreement to adjust as quickPa as possib?e any coni;?7Xnts or differences betdeer. the &pozties a&ir~ j%om the inteq3retction, qZicat~on, a&Xstr&on or aZZeced contraventton incZud&g ary qestion cs of this Agreement, to whetker 0 mctter is crbitmble. 30.2 An employee w& believes i-.e Ls a ,csir;;Zzint or a di.ffereme ~6th t2e r3mZoyer skzlZ @St discuss the complcint or dii;‘erence with his or her supe-rvisor ;rithir. +;ex9Y, (20) days of first beccming mare 0: 2 the ccmlcint cr di~“ferer.ce. If any con;pZaint or &f.Yerer.ce ks mt sctisj%etc-r-L+ settZed by the supe&sor within seve7. (71 &qs it may be ;7rocessed in the TolLwing manner: 30.3.1 STAGE OhT -The employee may pile a pZevar.ce in writing tith his or her suoervisor. -The supervisor shaZZ give the l&evor his decision in tz-iting within seven (71 days of the submission of the grievance. 30.3.2 STAGE TWO If the plevance is net x.soZved wder Stqe Cne, the eT5qiee may s;it;mi~ the z@evance to the Deputy Mznister or his designee uz~t;zin seven (71 days of the date that he received the decision under S-Age Cne or in ih event that rd decision in writing is rece:vet Sr. cccor~dcnce zith the speci,Fied tCme Zinrzts i7i S’dge Cr.e. The cdevor may wbnnt A. . de ~aevmce to the ge=ti*i :,.- ,I 16;F,-S~er or his designee -;CtF.in sever. 171 &s of ‘- - rr.e ate that the s;i2;aruisor was recutred So c/,ue his decision in wtitiq Cr. cccdr&zme ,iith Stcce he. ” 30.4.1 30.4.2 30.4.3 30.5 30.6.1 30.6.2 30.7.1 30.7.2 2% Deputy Minbter or his designee shuZi hold a meeting with the empioyee within fifteen (15) &qs of the receipt of the grievance and shaZZ give the uCP;revor his decision in writing b+thin seven (71 dazzs of the meeting. If the gkevor is not satis?ied tith the decision of the Deputy Minister or, hzs desiaee or if he does not receive the decision tith& ths spec<fied time the griever my qply -h the Grievmce SettZement Board for a hearing of the grievance: within j%fteen 115) ti9.s of the date he received the decision, or within fifteen (151 LQS of the s?eci.Y-Led time limit for receiving tiie decision. The employee mq be cccompanied t-mu5 represent- ed by an eTZoyee represen’dtive ct ecci” stage of the grievance =roce&re. DISMISSAL Any probationary emp Zoyee wF.0 is d+x&sed or reZeased shaZZ not be entitzed to +fiZe a grievance. Any empzoyee other than a probatCor.aq empzoyee uho is Xsmfssed sFzzlZ be entitled to TLZe a grievance at the secop2 stage of the gz-ievance procedure provided he does so &thin tj;er.td (201 days of the date of the d&tissai. UNION GRLL~PANCE Where any differgee betieen the EmpZqyen and the Union arises from the inte-rpre”atzon, auplicatior., administration or alieged corkravention 0.7 the Agreement, the lkicn shaZZ be entitzed to fiZe a grievance ct the seccrd stcge of the ~grievance procedure provided it does so z&thin thirty (301 days foZloming the occurrence or oriaination of the circwnstances yZvirz r&e to the ~gri&nce. Where the difference between the ~@loyer and Se Union involves more than one (1) Mir.istm the Onion shazz be er.t<t’ed % fiize a arievcllce ti& *he LI Y _I . I Director af S’kf,f ReZations provided Ct does so within s&+9 (60) &-L-S fcl%a3i~~ tke oclxr7erze or origination 07‘ fiie cixwns-kmes givirz -*be to 2% grievance. 30.7.3 A submission of the &evazce +& the Director of Stuff Re’Lztions under this se&on shaZZ be con&dered +o be the second stage of the grievance procedure for the purpose of this ArticZe. Union grzzevances shail be signed. by the Fresidknt, Vice-Fresident or the GeneraZ Manager. 30.8 Where a grievcmce is not processed *&thin the time aZZaied or has rat been processed by the employee or the Union within the time prescribed it shall be deemed to have been with&am. 30.9 In this ArticZe, days shuZZ incZzule aZZ Says exclusive of Saturakys, Sunclc~s c;d dssigated hoziohys. 30.10 The t-he Zimits contained in this Article may be extended by agreement 0:’ the parties in writing. 30.11 The Grievance SettZemert Board shaZZ huve no jurisdiction to cZter, chaze, amend cr enZarge any provision of the CoZZective Agreement. .- Distilled to its essence, the union's argument, on behalf of the grievor,is a simple one. It contends that the decision-making process, by which a public servant may be discharged, can properly be perceived as operating along a continuum at the start of which the deputy minister or his designate must initially hold a hearing under s.31 of The Regulations to determine whether or not there is cause to remove that person from his or her employment. Following that determination, and assuming it to be in the affirmative, the union contends that the public servant would then be entitled, pursuant to s.30.6.2 of the agreement, to file a grievance against that decision and ultimately, pursuant to s.17(2) of The Crown Employees Collective Eargaining A&to file that grievance with this Board. Thus, according to the union's perception of this ~..~.~~ .~,.. procedure, s.31 of the Regulations, or at least subsections 4-12 thereof, dovetails and coincides sequentially on this continuum which culminates in a hearing before this Board under s.18 of The Crown Employees Collective Bargaining Act. Put somewhat differently, it is the union's position that there is nothing in the collective I_-__---^-.----cI---~ agreement which makes any reference to a procedure to be followed ,___. _._I.^_~ . . .._. _ _~_ ___,.,..~ - :.. ~.__,.~ prior to the decision to dismiss being taken. Accordingly, the ,~~ _ _~,. .:.. ,.~. union argument runs, there can be no conflict within the meaning of s.29(3) of The Public Service Act, between the Regulations and /.the collective agreement. In the result, the internal Ministerial / hearing provided in s.31 of the Regulations is, the union says, a mandatory condition precedent to valid dismissal effected under .A /I s.22(3) of The Act. Accordingly, the union posits that the failure i to hold such a hearing,as in the circumstances of this case, renders \ the dismissal null and void. However, by way of contrast, the union does concede that where both the collective agreement and the Regulations speak to the procedure to be followed after the decision to dismiss has been validly.taken, then, by virtue of.s.29(3) of The Public Service Act, the procedures in the agreement, to the extent they are duplicative of those in the Regulations, must prevail. Thus, and where by Article 30.4.1 of the agreement an employee is entitled to apply to this Board for a hearing on his grievance, it is the union's position that such a provision must take precedence over and render inapplicable provisions such as subsection 13 of s.31 and s.50 of the Regulations by which an employee is entitied to file a grievance against his dismissal with the S,b?ic Service - 10 - Grievance Board. Very simply, according to the union, because in those circumstances the "post dismissal" procedures described in the Regulations and in the agreement are entirely duplicative and therefore in conflict, the latter process directing the employee to this Board, must prevail. Against that contention and while consenting to our jurisdiction to resolve this issue, Counsel for the employer advanced four different bases on which the union's preliminary objection must be dismissed. In the first place, and most basically, it was the Ministry's position that in fact there was a conflict between s.31 of the Regulations and the terms of the agreement described above.. Characterizing the procedure .- described in ss. 31 and 50 of the Regulations as contemplating a unitary and comprehensive procedure by which the dismissal of public servants was to be effected, weighed and assessed prior to review by third party adjudication, Counsel for the Ministry contended that both in purpose and effect, that procedure was in conflict with Article 30 of the collective agreement. Very simply and rejecting the union's division and parsing of subsections 4 through 12 of s.31 from the rest of that section, the Ministry argued that 5.31 must be read as a whole, and as providing a unique, distinc.t and alternative "pre-hearing" procedure by which certain public servants would become acquainted with and be able to respond to allegations made in support of their dismissais, which was necessarily in conflict with the "pre-hearing" procedure delineated in Article 30 of the collective agreement and which by - 11 - s.29(3) of The Act, must, for those employees covered by the agreement, be rendered inoperative. In the alternative, it was the Ministry's claim that a recent decision of the Ontario Oivisional Court, in Re: &utncki and Public Service Grievance Board (19751 26 D.5.2 (3d: 197, relying on an earlier decision of the Ontario Court of Appeal in Cbke u. mandate our rejection of the grievor's claim to be entitled to the hearing provided in s.31. Succinctly and on the tiinistry's reading of those decisions, any defect which may have occurred in the dismissal of Mr. Ferguson, either because a hearing pursuant to s..31 was not held, or because, if held, the hearing was defective in some manner or another, would be cured by the hearing before this Board. In that regard, the Ministry directed our attention to the following paragraphs in the Court's judgement: The foorfgoing Zenght-g r&itcZ, I;itich I;e regard as justzfied ir. order to revec2 the poc~ss Sy which officiah armlzed at the decisdon to dismiss Mr. Putnoki, brigs us to the cmz 0.7 the major su3iission of ib. Chmm;agne. He scus t.hzt the 3oard had M jurisdiction bemuse thre ‘wcs, in effect, no F.eariq before Mr. .%miZton urn%%% s. 32 12). Se s&mLtted that swh a hearing, ~.roperZy completed, was a condition precedent to the exercise 0-F jurisdiction by the 30-d. In feet a ireaz+Cw 30s provided and Mz. A%tzzki refxsed, on no conv-5wir.g grounds, to take aa’-var.tage 0.f it. aict even if it can be said that no 72Eaz-h~ was ;ieZd by Kr. &mtiZ'~n, the imt+kr is comZi.siveZy decided in Z.m Ey the decision of the Court of .+pec2 in C’mke v. A.-G. CM. et cl., (1966) 1 O.,?. 539, 34 2.5.2. (261 S??. The Court of Appeal there heZd tFzf c fcii;ine by the Depy Ministar to hold a hem?4 wzder s.5: 1.2) 3efore d&vnssing an empioloyee does no; vitlcte m3sequer.t oroceedirqs Sefoore the -‘oar?, cr the cu?Atbzor*i*~ of zhe Lieuten-At-Gmerncr in Cmnc<L $0 &miss f%e employee. -The hecm:a- &Fore the ~-0~7~ is a p.ed . . h2roceeCtng end is zza~,f&eE 52 +on &-Tect,- in proceedims *w-itW7 the Ninistq. __ ” z. ct ,z a,+. tkct case tite &.ct lias ~resentec~ w:fh a ,C-rz5 .~ZSmissc3 cl t+.e empioyee 3y the Zieztzrm.5--Gcve2m,-r Cr. $our,niZ, we ,’ ’ i‘ .< -Ii!- ‘i are of the opinion that that i-act does not aiter the principle kid dcvn in the ;‘-xdgment of the Court of Appeal as it upPLed to the case at bm”. ‘Qace the Depu% ?+izister Fzs puqcrted to &miss the employee, even if he FIIS not co~lied *b+th s.31(21, when he has given the notice required by s.31131 and the employee then @plies to the Icard for a hearing, the Depu% Minister’s act ?k converted into ,a proposaZ or tentat-lve decision to distiss him. 1 It is then s-z&e& to the ~ocrd’s review and there i all the issues on the mer-:ts of the esrrolcyee ‘s case I are considered. -That review replaces ‘oy a,cqZetely I\ new proceeding all the prcceedinp that Fzve gore .,) before, except the proposa2 of the Dep@ XinGter to dismiss. An? defect in tke hec2rir.g indeer s.31(21 is cured kz t%e hearing 5e.Ype the %ard. 9 fcrtioti, . . . if the e~io~ee”decides tc xaive the ;ieaziTq .n?der s.31!2) ’ in Jfavoicz 0;” going at owe tc Se Zocrd, the hard’s ,~ hearbg~ is 0: efefective stccstithe ,fcr it cd cZZct’s ~ determhzt’,cn 0-f the neAn:ts c-7 2;s case ke;jrea tr&mai . of the highest cutho-RI@. Finally and in the circumstances of this particular case, the employer also argued that on the evidence adduced before this Board, there were two additional grounds on which Mr. Ferguson’s claim for a hearing under s.31 of the Regulations must be denied. In the.first place, and on the evidence described below, it was the Ministry's position that in fact, the employer had substantially complied with the provisions of s;31 and that the grievor had in fact received all of the benefits and rights contemplated by that section. In addition, the Ministry contended that, on the evidence placed before this Board, the grievor must be taken to have waived his right to the procedure described in s.31 of the Regulations. an this latter point, it was the.. Ministry's position that as a result of certain reoresentations made by the union during the course of negotiations for the .,.... agreement, and as a result of his processing . - 13 - his complaint pursuant to Article 30 of the collective agreement,without clearly and unequivocally reserving his right to claim entitlement to the procedure set out in s.31 .':I of the Regulations, the grievor must be estopped from now asserting his right to such a hearing. ,.' Before assessing the merits of the first t'nro general propositions advanced by the employer as effectively answering the grievor's claim of entitlement to a hearing under s.31 of the Regulations, we propose first to deal with its latter two contentions, both of which turn, in the main, on the particular circumstances surrounding the dismissal of the grievor and the conduct of the parties leading up to their appearance before this Board. Turning first then to the Ministry's contention that in fact it did substantially comply with s.31, the evidence reveals that the employer first met with the grievor on March 9, 1976 at which time it generally apprised him that an investigation of certain aspects of his conduct with the i4inistry was being carried out and informed him generally of the nature of the allegations that were being considered against him. Following this _ meeting, at which the grievor denied all the employer's charges, the Ministry continued with its investigation into the matter and on March 19th, advised the grievor by letter that it proposed to convene a meeting on March 30, 1976, at which it expected the grievor to reply to certain allegations, the broad contours of which were described in that letter. That meeting, which was attended by Messrs. Fowler, Kood, Ritchie and Khaira for the employer, - 14 - and by Messrs. Ferguson, Campbell and Ms. Lucas for the union, connnenced with a debate between Messrs. Rooke & Campbell as to whether the procedure described in s.31 of the Regulations had to be complied with. After an exchange of views and after caucusing to consider their respective positions on this point, it would appear, on our reading of the evidence, that the question of the need to hold a hearing under s.31 was, temporarily at least, avoided and the parties turned their attention to the specific allegations that were being put forward by the employer. Although, according to Mr. Campbell, the employer did not at that time itemize each of the specific infractions that ultimately were alleged by the employer to have been committed by the grievor, apparently they . were in sufficient detail that the grievor felt he could not adequately respond to them until he had an opportunity to review them carefully and to prepare a response to them. Accordingly and by all accounts, the grievor did not answer to any of the employer's charges at that meeting, but rather simply took note of the specific charges being made against him. Following that meeting, and except for a brief informal encounter between Mr. Rooke and Mr. Campbell on April 2, there were no further discussions or contact between the parties until Aoril 8, 1076, when the Deputy Minister, exercising his powers under s.22(3) of The Act, caused the grievor to be dismissed from his employment. In the result, it is against that evidence, and particularly as a result of the meeting on March 30, 1976, that the employer claims it substantially complied with the provisions of s.31 of the Regulations. .,... - 15 - That is, and with reference to s.31, it claims that the notice of March 19, 1976, substantially conforms to the provisions of subsections 5 and 6 of s.31, while the meeting itself substantially satisfied subsections 7, 8, 9 and 10 of that same section. In our respectful opinion, the conclusions articulated by the Ministry simply do not flow from the evidence described. To the contrary, we think it clear that the meeting of March 30th did not, and given the employer's contention that a 5.31 hearing was not required, could not satisfy the detailed provisions of s.31. That is, on our reading of the evidence, it is manifest that the whole tenor and approach o f the March 30th meeting was .- that of a discussion, of a general meeting ccnvened to air and debate the employer's allegations that were set out in its letter of March 19th, and to hear Kr. Ferguson's responses thereto. Put at its simplest, and on the evidence of Mr. Rooke and Mr. : Campbell, we can find no basis on which 'to support the assertion 1 that,in any way the meeting of March 30th conformed to the formal, 1 adverserial, and quasi-judicial type of hearing that is contemplated i by s.31 of the Regulations. To the contrary and from their evidence it is clear that at no time was any suggestion ever made that evidence would be presented, witnesses would be called ?nd made subject to cross-examination, or that,it was expected that both sides would address argument to the Deputy Minister or his delegate. Indeed, it is a matter of agreement that, notwithstanding that at the outset of the ,meeting i\:r. Campbell challenged i?r. Fowler who had announced he would chair the meeting, on the grounds that he had participated in thf investi9aticn .’ :: - 16 - of Mr. Ferguson, Mr. Fowler apparently continued in that capacity. In short on the evidence before this Board, it is plain that while the grievor may well have learned the details of the employer's allegations against him at the March 30th meeting, in no sense could it be said as a matter of structure or procedure, * that that meeting in any way conformed to the procedural requirements of s.31. From its plain terms, s.31 contemplates that I ----------- a hearing, broadly conforming with the rules cf natural justice, _- -...-.-... ~... anmleling in general contour the adverserial procedure utilized _~ ____- -.----...-.---. - ..,.._. -..-~.- .._ -~ ..~_. .;, "4..- . ..-.-. ..-. .- ^. .- -.-" -.-..... by our judicial insfituti.ons,and by.other quasi-judiciaJ_tri-burials _._~_--------- will be struck. In our view, a meeting which is chaired by someone ..-.-.._-._ . .._ who is privy to the investigation, which presents no evidence or witnesses who can be cross-examined, which is conducted prior . to the completion of the investigation into the grievor's conduct, and which does not call for the presentation of argument cannot reasonably be characterized as substantially conforming to those precepts. Accordingly, in our view of the evidence,it cannot be/ said that the grievor received the benefit of a hearing which L substantially conformed to the mandatory requirements of s.31. - As noted above, the Ministry also resisted the grievor's claim of entitlement to a hearing under s.31 of the Regulations on the ground that by his own and his representative's conduct, he is now estopped from asserting such a claim. ihe doctrine of equitable or promissory estoppel is one with which arbitrators generaiiy and this Board in oarticuiar are fully familiar. Although Counsel for the union argued that the decisicn of the Ontario Divisional Court in &.- .:ccjs<tcZ ,TTT~SSCC~., ,Cc.-.-lc G:g~z?z: > :? - 17 - &SV?:~Ai and Lanc?m 3isti:ct ~~x~:?.~~ nc Selnrlce Workers Cr.im, Lccai 220 fig733 1 0.2. 240,' had raised serious doubt as to the doctrine, we believe that a review of the authorities amply supports our jurisdiction to apply this principle in the appropriate . circumstances. See Re: CtiG &2Zcdees ib&n, AJo. 43 and /hmtoivaIi* of Me2rctvoZi~ -"crmti E963 O..?. 970 !C.A.i, Ze: Zen Ginter 67 CLLC iP, 032 (B. C.S. C. I, Regiri ‘J. Lcne et cl 6E CLLC Ial 137. However, and while we would, on the basis of those authorities reject the union's challenge to our jurisdiction to invoke such a dcctrine, we would, for the reasons that fo ilow, concur in its conclusions that on the requisite elements of that doctrine, an astopcei has not been made out against either Mr. Ferguson or his representative. In this regard we would, at the outset, refer the parties to our earlier 5 - 18 - : the parties have already entered into a definite and legal contractual or analagous relationship (but see Watson v: ‘Can~dc Pemnozert ‘Trust ~Co. 119721, 27 D.L.R. (3dl 735 (B.C.S.C.) cm0 generaily Jackson, D. %toppel as a Sword" (19651, 81 L.Q. Rev. 84); (ii) that there m?tst be some ccr&ct or promise “which induces the other par$ +A beEeve that the strict legal rights under tFz contract ‘w-iii not be enforced or wiZ1 be kept in suspense ?I’; and liiil that I’ hving regcrrd to the dealings which have taken piace between the partdes” it wouid be inequitable to allow that pa@ to enforce their strict lega rights. With resvect to this last condition Den&q, L.J. has w&ittm: r’Bxt where the carty has trade 7~ promise, egress cr impiied, m.d all that car. be scud cgainst him is that he by h-L.s co&x& has irxhed tie other to believe thct ths strict rights imder the cor.tract lJii1 not be enforced cr kept in suspense, then the position is $c.fferent becazzse ti.ere is Ir*, questCon of gcod faitE--no qzdestior. of a mzz keeping his word. In tF.ose circms+knces it mq~ be r.ecessaq -for th+ other partzz to show not only that he acted, but alsc ‘t&t he acted to his detriment, in tke belief that the strict rights .would rat be enforced. This is what is necessaq in the case of an estoppei and there is rio good reason why it should not be necessary ;lere”. Den&q, A. J., “Recent Devetipment& in the i7ooctrir.e of Consi&ration”, 119521 15 Mod. L. Rev. i, 5. From the above and as 7as been reco&zed in scrlier crbitrcl wards I.?e Westroc In&s&es I,td. azd lJr<ted Cement, L,ime C; G.~sxm Worksrs, Loccl 366 119731, 3 L.A.C. (2~3 102. 110 (Eeat*dirilit is mani?est then that even WFzn all of tie conditio& stipulated by Cenz<ng, I. J. have beer. met, the dak+ine of prmissory estopcel merely suspends rut&r t&n e,+ir.gzzishes legcl ri>hts tolless the promise is absolute or*! irrevocable bg its terms or unless the par*9 to &am the represen-kticz was male camot res-me their ozn~+~l pos&*:on. That is to say, perceived as r- cbez-ation to or deroqa?ion cf the doctrine of ccr.s<dera~~on, couzts i-*re <erzxiPy reccpized t&t such promises cr cortiuct Twhh=ch is con&med as -kn-kmount to a prsrise, ~uns~ortsd by considerction generaZlg ccuZd rat be ex-?oreeL in the . ., .=a.&ion $5 . . same manner or zn xe scme c ~rcmise t;r.~& -z.. ,~ -~ ..~ i,., - 19 - was supported by consideration. ,?ather, as ths case lad has developed, ccurts h53e e-Tressed the view that where the part-d to Aon the representation, whether by words or ccnduct, was made can revert to its orip?:ml position, the pmtg agains t whom the estoppel <s asserted mcd bring it to an end ei’tker on reasonable notice or when the conditions which sxI;ported the estoppei have come to an end. Tool Metal Xmltfactu.rinp CO. Ltd. and !?mqsten Ziectric Co. Ltd. (19%) 1 R.L.R. 761 (6. L. I: Central ‘Lcraon -*over@ -%Ast Ltd. v. Sigh Trees Eouse Ltd. Csuvrai. Indeed it -has been held that the ratice which may be given to bring the promise or representation to an erxi need rat be form1 notice so lore GS tke part22 to whom the representation. was mide has! a reasor7le o~;cortuni~~ of reverting to its original position; O.iaxI v. 3.1. iiriscoe (.Vice-Kaj Ltd. 1164) 1 W.L.R. 1325 (J.C.?.C.). And see generaiiy J. -?. Zkon ‘2 .?eqpraisal of ,- Quasi-Zstoppel: (1965) Ccm3. L.J. 53. Re General Concrete of Can~dc Ltd. fig7.f) II i7.S.C. 12dl 187, ZOO-2Oi (Sec?t-gi Applying those principles to the facts of this case, it is to this Board clear that the essential elements of an estoppel have not been made out. In the first place, and with respect I to the evidence of Mr. W. J. Gorchinsky;who is a Senior Staff Relations Officer with the Civil Service Commission, we would note as we did in Re: Zkoje isu?ral that even if we accepted his evidence, that the union did, during the negotiations ' and before the Eoard of Arbitration convened to settle the terms of the collective agreement, make certain representations in their proposals to the effect that certain Regulations, including 5.31, of The Public.Service Act, should be made inapplicable to persons who were covered by that agreement, those representations would not give rise to an estoppel. To the contrary and as we noted in .?e: %.&a irt 3~ 3-s: - 20 - In short, as noted above, the doctrine of promisscry cr eouitabie estoopel assumes that the oarties have already entered into a definite and legal ccntractuai relatfonsnip. Accordingly and unless it can be established that a representation which was made during the course of negotiations found its way into and formed part of the settled terms of the agreement, such a representation is, on our understanding of the law, not enforceable as either a contrkual right or under the rubrkof an equitable estoooel. Boreover, cn our view of the eivdence and even If the doctrine were applicable to such reoresentations, we do not share the Ministry's contention that the union made such a clear and unequivocal representation. To the contrary, as bctb Mr. Gorchinsky and ?I?-. Todd, the two chief negotiators for the employer and the union expressly recognized, the ?egulaticns orcmuigared under S.2-C(!) of The ?ublic Service Act cxid r.ct 'x and 'tiers net in fact xri Zen cu t oi the law by the collecive barcain+-c necctizsi ens _ bet:veen these ;ar+ils. .4sa;ns-, That c33mn uncers~~nciw, 27c a t:::::::::. .> - 21 - against the uncontroverted evidence of Mr. Todd that at no time did the parties specifically discuss s.31 of the Regulations we simply cannot accept the employer's assertion that the union in its proposals made any representation to the effect that s.31 would not apply to the employees covered by the agreement. To the contrary, we believe that in the union's proposals to which Mr. Gorchinsky referred, the union was, as Mr. Todd testified, simply attempting to have included, some, but not all, of the Regulations promulgated under The Public Service Act, in their collective agreement. Indeed, as the parties agreed, the union ultimately abandoned even this position prior to the award of the Board of Arbitration and in the final analysis,'was pressing for the inclusion of all of the Regulations into the agreement. Given that such a proposal represented the ultimate bargaining stance of the union, we would, on that ground alone, be constrained to reject the employer's contention that the union's earlier proposal can properly be characterized as a,legally binding representation, which would estop this grievor from now claiming the benefit of s.31 of those Regulations. Nor do we believe that the evidence, describing the course of dealings between these parties which led up to their appearance before this Board, can support the conclusion that the grievor waived his right to a hearing under s.31 and that he is now estopped from asserting otherwise. Put at its simplest, we are unable on the evidence before us to draw the inference that by filing a grievance, attending a second stage grievance meeting - on May 3rd or by any other act, Mr. Ferguscn cr his representative ; - 22 - c ( can be taken to have waived his right to a hearing under s.31 of the Regulations. Indeed and as Mr. Rooke candidly conceded, at no time throughout the proceedings leading up to the hearing before this Board did Mr. Ferguson or the union ever expressly abandon their position, which was clearly articulated at the outset of the meeting on March 30th, that he was entitled to a hearing under s.31 of the Regulations. In fact, Mr. Rooke's evidence that the grievor and union had abandoned that position was, on his own evidence, based on his assumption that they had done so when after the caucus, they continued with the meeting on March 30th, knowing that the Ministry was insisting that s.31 no longer applied to the dismissals of employees covered by the collective agreement. Against that assumption, however, stands the uncontroverted evidence of Mr. Campbell that on April 2; in an informal conversation with Mr. Rooke, and again on May 3, 1976, at the second stage grievance meeting he specifically advised the latter of the union's position with respect to s.31. Moreover and although Mr. Rooke testified that he assumed, as of March 30, 1975, that the union had abandoned its position with respect to s.31 of the Regulations, he also admitted that when he received Mr. Bruce's letter of June 15, he was concerned that it raised the possibility that the union was again putting the question of s.31 in issue. Indeed, from his own letter of June 1, 1976, to this Board, which was prompted by Mr. Bruce's request of May i7th for this Board to schedule a hearing,.we believe that 1 ‘t is clear that even then, Mr. Rooke was concerned with the union's position with respect to s.31. ,.’ ,~..,. .,.. L - 23 - Thus, and at the very least, in such circumstances and particularly when, on his own evidence, the union had never expressly represented that it was abandoning its position, Mr. Rooke should have resolved his doubts by enquiring directly of the union as to their position on s.31. Indeed, and if one accepts Mr. Campbell's - uncontroverted evidence that both at the resumption of the meeting on March 30th and again at their meetings of April 2nd, and May 3rd, he advised Mr. Rooke of the union's insistence that a s.31 hearing was required, it is dl 'fficult to understand how Mr. Rooke could have reasonably assumed that the union's position was other than that initially represented by Mr. Campbell. Indeed when Mr. Campbell's clear and unequivocal testimony as to what transpired at those meetings in April and Nay is taken together -- with Mr. Bruce's letter of May 17th, and Mr. Rooke's letter of June lst, we believe that by that latter date the union's position, insisting on a 5.31 hearing, mus t have been and in fact was clearly understood by the Ministry. However, and at the very least, when by Mr. Bruce's letter of June 15th doubt was raised as to the union's position with respect to s-31, at that time, at the very latest, any'representation the employer may have perceived the union to be making would have been spent. At that time, at the latest, the union must be taken to have reverted tG the position. it clearly articulated at the opening of the meeting on March 30th. In sum, on either ground, viz, that in fact the union never made a representation that it was waiving the grievor's ciaim for a hearing under.s.31 or that if it did, it had, on the employer's : ..~~ i. . .,~.... .’ - 24 - 4 ‘1 own evidence brought that representation to an end on June 15th, we must also reject this second aspect of the employer's argument. As noted at the outset of this award, apart from those two arguments, which were premised on the particular facts of the case before us, the employer also advanced two additional propositions, of general application, which it claimed supported its position that the griever was not entitled to a hearing under s.31 of the Regulations. As to the first of these, it was the employer's position that, even assuming, as we will throughout our analysis of this aspect of the employer's argument, that s .3! of the Regulations and Article 30 of the agreement were not in conflict, nevertheless, as a result Gf certain determinations made by the Courts in Ee.e: L5hwki ad :AbZ-:c ‘” Sovice G2nZevance Board iszcpcl md in C7,anke v. At*o3rreptier.erZ .- of Gr.t~~o (s~pra), it has now been affirmatively settled that the failure to hold a proper or indeed any hearing under s.31 of the Regulations is and would not be fatal to our jurisdiction to hear and resolve Mr. Ferguson's grievance on its merits. To the contrary, on the Ministry's reading of those decisions, our review on the merits of his grievance would completely replace and indeed cure any defectiv~e proceedings which may have gone on before. See also.fiq~~. Uni?ersied of Saskcwtchw C-CSC] S.C..?. 678. Simply on the basis of the passages noted earlier.in -, .~ _...-.. ~~..~~~., .---~.. ._,. ~..~.. --- this award, we would agree that the Ministry's interpretation of thGSe decisions iS a plausible one. From its judgement in ze: ~~tioic-: (s.LI‘ P&Zic Sex&e G-xk--;cnre Zoard it is clear that the Court phrased the issue before it squarely in terms of the jurisdiction of the Public Service Grievance Board - 25 - to hear a grievance where a s.31 hearing had not been held, as in the CZarite u. AttomepGenerrrZ cf &nfko decision, or where, as in the case before it, the hearing that was held under s.31 was defective or flawed. Moreover, on the passages cited above, it is clear that in the circumstances of these cases the Court expressed the view that the Public Service Grievance Board, and presumably in similar circumstances this Board, can seize jurisdiction and cure any defects in the procedure leading up to a hearing before it. See also to the same effect, .X&q u. Un%ersi+d of SaskatcFawan (stqrai . However, on a careful reading of those decisions, we believe that the reasoning of the Courts does not and was not intended to apply to a situation such as the one before us, where the grievor insists, from the moment of his dismissal'until the hearing before this Zoard, that he is entitled to a hearing within his Ministry. To the contrary in those circumstances we do not understand the Courts to be saying that ,i this Board can seize jurisdiction, cure the procedural defect, and in effect deny the grievor his right to have a hearing under s.31. j To the contrary we believe that in those circumstances, and in contrast to the situations which prevailed in ?e: F~tik-: old F?&Zic Service Grk~cmce Zcoard and in CZcrkt :'. Stjo-~q- ,., Generc22 3.f or-Mario where the grievors voluntarily elected to : proceed before the Board without the benefit of a hearing under s.31, 1 the Courts expressly recognized that the grievor is entitled tz to the specific relief which he seeks. That the Court's hoiding in &: ?Atiaki c;rd ?k;Cc :e~j?:ne ,Gtis~orce ZcC- is limited to and indeed founded on the situation where the grievor voluntarily elects to by-pass or forego procedures which have not been adhered to by the Ministry, can be seen in various passages of the Court's decision. Thus, at the conclusion of that portion of its judgement which dealt with the issue before us, the Court wrote: We c?o not wish <t to be t&~ht thct we condone any faiZxre by offidals to observe the .mcmdatary requirements of the Reguluticns. We do not. But as we interwet the scheme in its entireed as proirided Zn ss. 31 to 57, it was rat the intention of the recdaticn- making authority tfizt breaches of tie mandatcq poaisicns by offkials should Zylve the .qZoyee of reco~wse Ad -ore seizor levels in the scheme; or becalise o,? sucX defects to recuire him to reccinence the wbie process ~2 Tr.:tio. ,?ather, failtcre to sclisfi the eF?oyee ct cny level, whether for technical cr s;clns-&“tize recscns, is cured by .aZlcwing Xm tc proceed to higher leuels in order to be he&x?. Ir the ecurse sf so doing it wvdld be edirey pr9per, ,d indeed desirable, thct for the puyose of ccccrrmxiating an employee ant! ~krtheri~hg ;he objective cJf the Regulations, a requirement that TaFCicular steps be taken tithin spec-if;ed ttmes be waived. Re: Attnoki and public Serdce Grzze;‘cnce 3ccrd swrc p 217. In addition. in its judgement, the Court also discusses the griever's right to demand a hearing under s.58 of the Regulations for certain other grievances he had filed against his employer. While admittedly not completely identical in its provisions, it is recognized that the hearings under s.58 of the Regulations are in their purpose and intent for working condition grievances roughly analogous in purpose and function to what a s.31 hearing - 27 - is for dismissal grievances. In any event and with respect to Mr. Putnoki's right to require the Ceputy Minister to hold such a hearing under s.58, the Court observed : ‘iTie Depu@ Minister pqcrted to mtkdze Mr. Strang ‘t hold the hea&rg urzer s.:a mz it was the underst.zzGing of tFz parties tizzt the hearing tlas ccn&cted tolder tFzt a~~t&-i+i. &d A!!. L?u5utncki .tisized $0 assert Xs In:@ to a hearing before the Depty Minister personaZig, he could properly hxzve done SC; ;Ze was r& obliged to accept the azc+qement t&t was r&e. In fact he and his representctive went ?i,-~~i: wit2 the hea%ng before /Jr, Stra???. Xr. .‘utz&i was stcbsequent~ znfc-ned by !A&-. .&nter (nst t2e Deputy Mir.%sterl by letter Eated Gc$cber T2, 1972, thct, as a result of the hec+zg, 777 &mqe woui2 ._ be made in the decisions WE; gave Kse to the working Ugx6evances. Mr. Putno~~ could izve chzlier.ge~ tkLs p3ceedGg at the time. ihier s.5a he iicls entitle2 to kve the Deputy Minister conduct CT. inzesti@<cn in-d the gm~eucnces under s. 53 (2). The iTecu@ Mhister could of cou3e con&et tize imestCgaticn as he sag fit and would be e-Teeted to <r.stz~ct his staff to obtain in;c’om&&? +cn dzyz?+Ientz~ records and by further irqhkes. &$ she 2ecutu _ I Ninister is recutred to oict ii:s m+S: to the investigation ,‘ci.rly and- horzstlu wi’th a view to gathering ail necessq fccts bo& for m;d agadnst tFa e,vployee. Before giving a decision .unk?er s.5a12) hi should dn any event, as a matter of Fracticz, hea* wkxt the employee has to sty. -Tr. this case, however, sir.ce Xr . A32trzzki h& +zzd rx sppcrt;cr.ity to be heard mder s.57 by G desigrzted perscn, the Depu29 Minister was obliged to hotd a kea-Lr.0 urz-er s.58(3) by the egress. words 0~~ tke ie&slatlcn. Mr. -?utrwki cculd ixzve <n&ted t>ct a!,2 this he do?&?. 8. 7 - 28 - w&r 6.58, in the circmsAknces the parties appear to kve been content to gc before the -Soad, and ze find M +At r-itk tkk. From those passages we believe it clear that in advancing ;the general proposition thatthis~ Board.has jurisdiction tom hear jthe merits of a complaint notwithstanding the existence of .fundamental defects in the procedure leading up to this Board, 'and that indeed such.a hearing may cure those defects, the Courts were limiting that principle to the situation, as in the circumstances before them, where the grievor voluntarily elected '2 rT to forego his right to have a departmental hearing. On the facts described we have held that at no time did the grievor take any action or make any statement which could reasonabiy have been construed as meaning he was foregoing his right to a hearing under s.31. Although, Mr. Storie, for the tiinistry, argued that when, on May 17th, Mr. Bruce, on behalf of IV. Ferguson, applied for a hearing "in accordance with section 50 of The Public Service Act and Regulations", he must.be taken to have admitted either that the procedure under s .31 had been sufficiently complied with to give this Board jurisdiction or that he was voluntarily electing to forego or waive that right, we cannot accept that conclusion. In the first place and standing against such an assertion is Mr. Bruce's own evidence, which while admittedly self-serving,was not shaken after a thorough and exhaustive cross-examination, that the reference to s.5C of the %gulations was simply an arror, and oversight on his own and his secretary's part. That reference, according to him, was simply a mechanical habit which, since the signing of the new agreement some two months previously, he had not yet learned -~ I -..- I” ‘1.’ I .:’ - 29 - I ? to kick. Moreover, and while we would, but for Mr. Bruce's evidence, accept the logic of the Ministry's argument on this point, we do not believe, given that the union takes the position that Mr. Ferguson is entitled to both a hearing under s.31 and a hearing before this Board, that Mr. Bruce, who is not a lawyer, would be sensitive to the legal niceties that would flow from his reference to s.50 of the Regulations when he sought a hearing before this Board. Put succinctly we do not believe, notwithstanding the inherent logic of the employer's position, that one can draw any conclusions that Mr. Bruce's intention was in fact being premised upon the same Yogical basis. To the contrary and by way of example, Mr. 3ruce's use of the phrase "in accordance with Section 50 of The Public Service Act and Regulations", could simply reflect the fact that until two months before the date of this application, that in fact was the usual way by which a reference would have been made to this Board and as well to the Public Service Grievance Board. Looking at this issue from another perspective, we would note that to argue that the Court's decision in .?e: ?z&zoiti Z-U-I ?A212 Service Gtievnce ~oocrd applied to and is determinative of Mr. Ferguson's right to a hearing under s.31 even and although he never voluntarily elected to forego that right, could result, in every instance where it had the inclination to do so, in the employer's being able, by refusing to hold such a hearing, to effectively render nugatory and superfluous the provisions contained in s.31 of the Regulations. Indeed, and if the Mini.stry's - 30 - argument were to prevail, even in those circumstances where the griever was outside the scope of the bargaining unit, the employer could, by refusing to hold a s.31 hearing, require any employee it dismissed to come directly before the public Service Grievance Board. Such a result would not only by administrative fiat deny an employee a right that the Lieutenant- Governor in Council has seen fit to bestow upon such persons but would, we believe, fly in the face of the Ontario Court of Appeal's decision in .?e: VC;C& L; zzer~ee ;~TF C" J 2 !J.3* 632 in which the Court clearly and unequivocally ruled that the Provisions Of what are now s.3:(13) are mandatory and that the failure t0 comply with them renders the dismissal nugatory, Accordingiy, and following the reasoning in that decision, where, as here, the grievor has insisted on his right to have a Ministerial hearing under s.31 of the Regulations, and assuming him to have such a right, the failure of the Ministry to hold any hearing under s.31 would, in our view, SimilarlY render nugatory his dismissal. Succinctly and in such circumstances, we do not believe we would have jurisdiction to entertain his grievance on its merits, nor from his simple application for a hearing before us, the authority to cure the procedural defect about whi.ch he complains. III the result, if, as the union intends, I?!-. Ferguson is entitled to a hearing under s.31 of the Regulations, the .?e : T/CL& e -3erlze decision would in our view be determinative of his complaint. in turn, and as we have noted earlier in this award, Mr. Ferguson's entitlement to a hearing under s.31 ultimately - depends, given the direction in s.ZS(3) of -he ?~biic Service Act - 31 - on whether such a hearing can be said to be in conflict with the provisions of the collective agreement between the parties. Succinctly, to the extent that it is found that there is a conflict between the provisions of the agreement, and the Regulations, it necessarily must follow from the terms of s.29(3) * that the former must prevail. The determination of that issue we believe requires and in the final analysis will turn on a careful and purposeful analysis of both s.31 of the Regulations and Article 30 of the agreement. Earlier decisions of this Board, as in 8e: &ni.Lszr. 22/75, (with respect to s.50 o f the Regulations), and in 32: ~?%mzxmz i/78, (with respect to s.63 of the Regulations), while helpful in their .- approach to determining whether a conflict does exist, cannot assist us in determining whether the provisions before us are similarly incompatable and antagonistic. Nor do we believe that such an issue can be resolved, as the union asserted, on the seductively simple proposition that be&se the hearing described in s,.31 pertains to a period of time before the decision to dismiss is actually made, that it can coincide and dovetail with . the provisions of Article 30, all of which arise after such a decision has been taken. ? . ,L- .r - 32 - Rather in our view to assert such a distinction between "pre" and "post" dismissal procedures as the basis for the conclusion that there is no conflict between the procedures in e the Regulations and in the agreement, is to beg the very question that is before us. Moreover, characterizing subsections 4 through 12 of Section 31 as a pre-dismissal hearing, having no counterpart in the agreement, is a wholly artificial, self-fulfilling and bootstrq e .:.- _____.- -- m of distinction. That is and whi!e it is true that lifted from and taken out of the context of s.21, the subsections describing the hearing before the Deputy :4inistar or his designate can be seen to co-exist sequentially with the provisions of Article 30, .I it is equaliy true that viewed as a whole, s.31 of the Regulations can be seen to contain and represent an integrated "pre-hearing" procedure which precedes the independent review proceedings before the Public Service Grievance Soard. Perceiving 5.31 as an integrated who1 e ,whichjit might be noted, is the way it was written, one . can, as the employer did, characterize its provisions as delineating I 1 a pre-hearing procedure irhich duplicates and in that sense is in conflict with the pre-hearing prccedures that are described in I" Article 30 of the agreement. in one sense then, the issue between : 1 the ?arties,'as reflected in their respective characterizations of the provisions of s.31, is whether it is proper as the union WOlild have it, to isoiate and sesrate the "pest diszissal" Tortions Of that section, (e.g. s.3i<iGjj as being the on'y portion of j.31 that is in conflict wi:ti the zrccedcres fescriSe< in ;irt<cye 32, o: +,he;ker - 33 - it is more reasonable to perceive the two procedures as self-contained "pre-hearing" procedures to be utilized prior to an impartial and third party review of the matter by the Public Service Grievance Board and Grievance Settlement Board respectively. In our view, which of these characterizations more accurately and reasonably gives effect to the statutory scheme and the provisions of the agreement cannot be settled by the mere incantation that sequentially portions of these provisions can live together or that viewed as a whole they are redundant and wholly inconflict. To the contrary, and on their face, each of the competing perceptions and characterizations of s.31 are plausible. Indeed on their face and standing alone there is, in our view, little to choose between these competing characterizations of s-31. Accordingly and to determine which is the more proper and reasonable mode of analysis requires this Roard to go behind the provisions of s.31, to inquire of its purpose, and to determine the effect that each of the parties competing arguments will have on the terms of the agreement that has been negotiated between them.' After involving such an analysis to the issue before us, we have come to the conclusion that the distinction that the union seeks to place on those subsections in Section 31 which describe the hearing before the Deputy Nnister or his designate, overiooks the fact that as written, rather than being a separate section in the Regulations, the provisions providing for a Rinisteriai hearing are included within ant forman essentiai part of a larger ” s.: - 34 - ;s F, t 2 ? L section in the Regulations, ignores the basic and fundamental . purposes that underlie that proceeding, and in fact alters the true nature of the procedure that is described in that section. Indeed, in our view to focus exclusively on the time at which the hearing under s.31 of the Regulations occurs@ to provide the touchstone against which the essential nature of that hearing is to be drawn, would in fact actually undermine the true character and purpose of that hearing. Put somewhat differently, to draw the essence of the Ministerial hearing under s.31 from the time at which that process is activated, is to allow the .,.~~ form and detail, rather than the purpose and substance of the hearing, to describe and reflect its true character. Succinctly, in our view, such a characterization misdescribes then essential -a nature of the Ministerial hearing. Rather, we think that the essence of the hearing that is provided in s.31 is not to be drawn from the time at which it is held, but rather is to be seen in its providing to both the grievor and the Ministry an opportunity to fully review, assess and weigh all of the circumstances of the matter before proceeding to a hearing before and a review by an independent board of arbitration. In short, the essence and itrue character of the hearing in s.31 of the Regulations in our :'view lies in its purpose and function of providing a pre-trial <3, 1 procedure before a review of the matter takes place by third /party adjudication. Accordingly, we would depict the Ministerial hearing as a procedure by which the Ministry is obliged to review and assess the action it proposes to take against the grievor, while the latter is afforded the opportunity to learn of the allegations that are made - 35 - against him, to meet those charges where he sees fit, and to challenge the inferences and. conclusions that the Ministry urges should be drawn against him. Indeed, and so described, the ~ i Ministerial hearing is an integral part of a procedure, which at ',\ i one time was the exclusive procedure operative in the Public Service, " by which an employee can learn, meet and challenge any decision taken to terminate him prior to his right to file his grievance with the Public Service Grievance Board. In that sense, the procedure described in s.31 of the Regulations including the hearing, the notice of dismissal, and the appeal to the Public Service Grievance Board provides an integrated procedure in which the Ministerial hearing serves much the same function as the discovery and other pre-trial processes that are integra I to our systems of civil and criminal litigation. So portrayed and analysed, the conflict between the .’ hearing provided in s.31 and the procedure described in Article 30 of the agreement is, to this Board, manifest. ti In the first place and most immediately, to require an employer to provide a hearing pursuant to 5.31 of the Regulations would render redundant and superfluous the grievance procedure and in particular In our view, Article 30 by the agreement, the collective bargaining equivalent, known as the grievance procedure, to the procedures described in s.31 of the Regulaticns. ' : in short, those two procedures serve exact1 y the same pre-bearing/ ,I' functions that are achieved by the pre-trisi procedtires in our / ,' systems of civil and criminal litigation. That is, after either procedure, the respective position of the parties will be made known to each other, the relative strength and weaknesses of their cases exposed, and the opportunity for settlement and compromise revealed. Accordingly, once having achieved each of those purposes by a hearing under s.31 of the Regulations, it would be redundant and wholly dilatory to require any further meetings such as those contempiated by Article 30.3.3 of the agreement. In fact, on the testimony he gave to this Soard, Mr. Campbell, the grievor's representative during that stage of the proceedings, would appear to share our view. Thus, he testified that when at the stage :‘do grievance meeting on Hay 3rd, the employer chastised the grievor for not being willing to respond immediately to their allegations, he, Mr. Campbell, stated to them that they would have already had the answers to their allegations if they had held a hearing pursuant to s.31. Indeed, it can cogently be argued that to : j /j require the-Deputy Minister to hold or arrange for a hearing : j ', under s.31 would be inamicable,to and subversive of the operation : : ' of a viable and efficacious grievance procedure. That is to say, where a Deputy Minister is required to premise any decision to dismiss a public servant on a report which flows out of an open, formal, adverserial and quasi-judicial hearing into the matter, he will not likely be as inclined or amenable to alter, compromise or amend that decision as he would have been had the decision to dismiss been effected without those . I - 37 - formal,quasi-judicial trappings. In short, to the extent the I' grievance procedure is designed to facilitate such discussions, j a requirement that the Deputy Minister must hold a s.31 hearing would substantfally undermine the effectiveness and viability : of the grievance procedure. In addition ta being duplicative of the prccedure described in Article 30 of the agreement, we think it obvious that to require the parties to hold a hearing under s.31 would also frustrate the expressed intention of the parties as reflected in Article 30.1 of the agreement: That intent, which is also expressed in the preambie of the collective agreement, anticipates that an employee's complaints or differences and not simply formal grievances, which do not arise until stage one or two of the procedure, will be settled as quickly as possible. That is to say,.the parties have contemplated, as evidenced in Articles 30.1 and 30.2 that discussions will take place between the parties, such as the meeting of March 30, 1976, prior to any decisions being effected or grievances filed. Moreover, and to confirm their intention to settle their disputes as expeditiously as possibie, the parties have, in the case of dismissal grievances , provided in Article X.6.2 for an abbreviated grievance procedure. ;\gainst such a cieariy expressed intention, it wouid in our 'view, be counterproductive of and to derogate from the parties agreement :o require them tc utiiizo and conform to the procedures set cut in s.31 prior to fiiing - 3a~- a grievance at the second stage. Indeed, to require them to do so, would result in the 1.0s~ to the parties of the very benefit that is implicit in the expedited procedure that was negotiated in Article 30.6.2. \ * In th 9 result and on this solitary but fundamental basis, we would accedetq,the employer's argument and dismiss the griever's preliminary challenge to our jurisdiction. Very simply, we have come to the conclusion that the two procedures that are delineated in 5.31 of the Regulations and in Article 30 of the agreement are not complimentary in the sense of being able to stand together. To the contrary and for the reasons described 1 above, we have determined that the Wo procedures are entirely i duplicative and in conflict with each other within ! w+f3 the meaning . ' / of s.&& of The Public Service Act. So characterized and pursuant to the direction of s.29(3), the procedure provided in s.31 of the Regulations must give way where, as here, an employee has available to him the process delineated in Article 30 of the agreement, In the result, we would hold that the grievor is not entitled to a hearing under s.31 of the Regulations. Accordingly we direct the Registrar to re-schedule this matter for such further hearings as may be required to hear and determine the grievance of Mr. Ferguson against his dismissal on its merits. Date at Toronto this 7th day January 1577. 0. M. Eeatty Chairman I Cm??.&?? S. R. Hennessy Member See Eeiow i.Gden&m! G. Griffin Member ADCENDUti - G. I<. GRIFFIN, JANUARY ith, 1977 Having considered the award of the Chaitian I wish to clearly state that I agree with his decision in this case. Howeier , the purpose of this addendum is simply to register my modest disagreement with the Chairman's assessment as to the applicability of the Putnoki and Clarke decisions referred to in the award. I respectfully submit that these decisions prcvide an alternate basis for dismissal of this grievance. While I recognize that the circumstances in Clarke and Putnoki are not quite the same as in the case before us there are, in my opinion, many simiiarities. Worthy of particular consideration is an excerpt from the Clarke decision from which I will quote "The nucatory effect of the failure by the Deputy Minister to afford the servant a hearing before dischar@ng him, is exhausted.when the servant chocses to initiate grievance Procedure cuiminating in a hearin: of the qievance before The Public Service Grievance Doard. The Act, we think', makes it plain that i2m ediatei:f tnat procedure \ is taken, the effect of t,he dismissai tv t;he Zeouty iVinis+er so far as finaiity is concerned, is zone and the >rievznce SoarS gf itsaif initiates a complete and original hearino as to the merits cr demerits of the grievance y, and of the attempt at dismissai and makes its ,I 1 report acccrsincY;f.