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HomeMy WebLinkAbout1978-0006.Roy.78-08-15ONTilRlD CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD Getween: Before: For the Grievrr: For the Employer: IN THE MATTER OF AN ARBITRATION Under The CROWN EFIXOYEES COLLECTIVE SARGAINING ACT Before THE GRIEVANCE SETTCEIMENT ECARD Mr. Robert.Roy And The Crown in fright of Ontario Ministry of Education Mr. P. John Bruimer Vice Chairrnan Henber :;!eaber Ms. Beth Symes Barrister acd Soiicitor 37 Madison Ave. Toronto, Ontario Mr. 14. J. Gorchinsky Senior Staff Relations Officer Staff Relations' Branch Civil Service Conmission 2nd Floor Frost S. Queen's Park, Toronto Hearing: Suite 2iOO 180 Dundas St. ti. Toronto, Ontario May 30th, 1978 -2- This is a grievance by Robert Roy dated November 23, 1977 alleging that he has been discharged from his employment without just cause. He seeks full reinstatement to his position of Clerk 2 Supply and compensation for any monetary benefits lost as a result of the dismissal. The matter comes before us as a result of the grievor's request for a hearing by the Grievance,Settlement Board pursuant to the provisions of Article 27.71 of the Collective Agreement between Ontario Public Service Employees Union and the Crown in the Right of Ontario represented by Management Board of Cabinet. Robert Roy has been an employee of the Ministry of Education for some ten years and has been continuously employed as a Clerk 2 Supply in the Operations Section of the Correspondence Education Branch of the Ministry of Education. On or about October 18, 1977 B. E. Robertson, the Chairman of Operations purporting to act pursuant to the provisions of Article 6 of the Collective Agreement, temporarily reassigned the grievor to the Record Unit of the Operations Branch effective October '24, 1977. This reassignment was indicated to have been for an indeterminate period but with no effect on his classification or salary. He was advised that he would retain his classification as Clerk 2 Supply and would continue to have the same working hours. On October 20, 1977, the Director of the Correspondence Education Branch, Mr. J. F. Rees, sent the following memorandum to the grievor. 7 -3- Following our discussion yesterday and in the absence of Mr. Robertson, I spoke yesterday with Rick Battiston and Albert Pires. As I indicated to you, .th.e workload distribution does not seem to be uniform at this time. ~ecduse of complement and budget constraints, I am finding it necessary to exercise a manager's right and res- ponsibility to z-deploy staff either on a temporary or permanent basis in order to effect the best utilization of the available manpower. You are undoubtedly aware of several other in- dividuals who have been similarly affected and your selection is in no way discriminating. I share with you a feeling for the importance of the text return activity but agree with Mr. Pires that perhaps that activity can be integrated with- in the working day of the supply group. I an of the opinion that further re-deployment of staff will probably be required within the future. After speaking with you and Albert Pires, I feel that the working relationship between you and your supervisor is such that it is probably in the best interests of both of you end this Branch that you be reassigned, such assignment to be temporary as noted in Mr. Robertson's memorandum and having no impact on your hours of work, classification, salary, etc. furthermore, Kick Battiston is very positive about such a reassignment and is looking forward to having you working in his area. It seem, therefore, that such an assignment is generally one to be desired and I hope you will accept it as being a positive move. The grievor became disenchanted with this decision to reassign him, and for this reason on ,October 20, 1977 in the early afternoon, left his place of work and has since that time remained absent without official leave. On October 28, 1977 he filed a grievance with the Chairman of the Operations Section, E. E. Robertson, alleging that his re- -4- assignment was improper and had been ~prompted by discrimination and bad faith. His attitude toward the assignment is best gleaned from the last paragraph of the letter dated October 28, 1977 which we quote: And finally I think I am intelligent enough to recognize an attempt to demean the efforts I have made in Correspondence Courses and dis- credit me personally by foisting me off on a job I did not want, I do not like and I have no intention of taking. On October 28, 1978, the Director of the Correspondence Education Branch, J. F. Rees, send the following letter to the grievor: I note your absence for the past six working days. I am advised that you have not telephoned your supervisor or any other employee of this Branch to advise of the reason for your absence. This letter is to draw two conditions of work to your attention. I. From the Collective Agreements between Management Board of Cabinet and the Ontario Public service Employees union: "13.7 After five (5) days' absence caused by sickness~, no leave with pay shall be allowed unless a certificate of~a Legally qualified medical practitioner is forwarded to the deputy minister of the Ministry, certifying that the employee is unable to attend to his official duties. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the deputy minister or his designee may require an employee to submit a medical certificate for d period of absence of less than five (5) .days." 2. From the Public Service Act, Section 20: "A public servant who is absent from duty without official leave for a period of two weeks or such longer period as is -5- prescribed in the regulations may by an instrument in writing be declared by his deputy minister to have abandoned his position, and thereupon hisposition becomes vacant and.he ceases to be a public servant. R.S.O. 1970, c.386,s.ZO.” Several efforts have been made to contact you by telephone at the number we have listed (466-9523). There has been no answer. You will note that if your absence is caused by sickness, a redical certificate is required. The grievor did not respond to the said letter. On November 3, 1977, there was delivered to the grievor, a letter directed to him by the Director of the Personnel Branch, A. H. Glendenning in the following terms. Mr. Brian Robertson has apprised me of his receipt on November 2, 1977, of your grievance dated October 28, 1977. I wish to advise you 'that your request for d reply from the Deputy Minister is in- appropriate. According to the Working Conditions Agreement, Article 27.3.1 your grievance is at Stage One of the Grievance Procedure which states: "The empioyee may file a grievance in writing with his supervisor. The supervisor shall give the griever his decision in writing within .seven (7) days of the .suLmission of the grievance." You will be receiving, therefore, a written reply from Mr. J. Rees who is currently in direct charge of the Operations section in Mr. Robertson's absence, within seven working days of November 2,.1977. I should further advise you that, as I indicated in our telephone conversation of October 20, 1977 and my letter to you of October 31, 1977, your refusal to comply with the instructions of management places you in jeopardy of dis- ciplinary action. . -6- You are advised to return to work by November 4, 1977 as your continued unauthorized absence beyond that date will lead to release from employment under section 20 of the Public Service Act. As your absence since October 21, 1977 is un- authorized I have no alternative but to suspend payment of your salary as of that date. The grievor did not.respond to the said letter nor did he return to work by November 4, 1977 as directed. On November 4, 1977, the Deputy Minister of Education, G. H. Waldrum, purportedly acting pursuant to the provisions of Section 20 of The Public Service Act, R.S.O. 1970 ch. 386 wrote the following letter to the grievor. I &eve been advised by the Director, Correspondence Education Branch that you have been absent without official authorization since Friday, October 21, 1977. You have made no attempt to contact your supervisor, nor did you seek or obtain permission from your supervisor for this &sence. I have investigated thoroughly all circumstances concerning this matter and due to your persistent refusal to carry out the assignment given to you by management, your failure to attend work and your failure to heed the several warnings sent to you, I must declare that you have abandoned your position. This action is taken in accordance with the authority given to me under the Public Service Act, section 20. Your position, as of this date, becomss vacant and you cease to be a public servant. While I regret having to make such d decision, your unauthorized absence in excess of two weeks provides no alternative. Any monies owing to you will be forwarded to you at the above.address. -7- On November 9, 1977, the Director, Correspondence Education Branch, wrote a further letter to the grievor wherein he responded in some detail respecting the allegatjons made by the grievor in his letter of October 28, 1977 addressed to Robertson. On or about November 21, 1977 the Operations Branch received a further letter from the grievor which contained a detailed attack on his temporary reassignment and con- cluded with the following two paragraphs. Consequently in reply to the allegation that I abandoned my position I charge that contray to the collective Agreement I was barred from my position by an arbitrary, unconstitutional dictate which, in effect, deprived me of a .job before I was dismissed. I further suggest that this may have been the motive of the* whole'exercise from the very beginning instituted for reasons I feel should be investigated by a incontrovertable, impartial body, since this is not an isolated case of whit I consider to be badgering and duress. At the hearing before us, the grievor led no evidence which would in any way substantiate any of the allegations contained in the letter of October 28, 1977 and November 21, 1977 and we so find. We have no hesitation in concludi& that there was no dis- crimination, bad faith, or improper conduct on the part of any employee of the Ministry insofar as it relates to the grievor. The evidence before us clearly indicates that the grievor, who was a public servant within the meaning of Section l(g) of The Public service Act, was absent from his duties without official leave for a s ,. -8- period of two weeks at the time the Deputy Minister wrote his letter dated November 4, 1977. We find, that the said letter was an instrument in writing within the meaning of Section 20 of T& pbli~ Service ACT, whereby the Deputy Minister declared that the grievor had abandoned his position. It should be noted that the evidence makes it clearthat the grievor did not at any time seek leave of absence, pursuant to the provisions of the Collective Agreement. There is nothing in the evidence, which in our view, would have justified the Ministry in granting a leave of absence to the grievor. All that we have, is the fact, that the grievor for reasons best known to himself, left work on October 20, 1977 and thereafter was continuously absent from his duties without official leave until November 4, 1977 when the declaration was made by the Deputy Minister acting pur- suant to Section 20 of The Public Service Act. In our view, the declaration of the Deputy Minister was made in accordance with the provisions of Section 20 of The Public Service kc: and in compliance thereunder on the grounds that the grievor had been absent from duty without official leave for a period of two weeks. Accordingly, by operation of the said Section, the griever's position became vacant and he ceased on November 4, 1977 to be a public.servant. Counsel for the grievor vigorously attacked the reassignment, submitting that it was made in contravention of the Collective Agreement on'a number of grounds. The short answer to these submissions is that even if they were well founded, they would not justify an employee absenting himself without leave. If the grievor was of the view that the reassignment -9- was improper he should nevertheless have accepted the decision of the Employer and then, if so advised, grieved the same, in accordance with the provision~s of the Collective Agreement. It was also suggested that the grievor should have been granted leave of absence and accordingly could not reasonably be said to have been absent from duty without official leave. We make two~observations in this regard. 1. At no time did the grievor seek leave of absence as. prescribed by the Regulations under !rhe Public service A&, either formerly or otherwise and 2. There would have been no grounds on which leave of absence could or should have been granted. We also reject the submission of Counsel for the grievor, that the Deputy Minister was required to hold a hearing pursuant to Section 31(4) of the Regulations passed under The PUH~C service Act. In our view, that subsection only applies where the Deputy Minister, for cause, removes a public servant from his employment or purports to dismiss him for cause. In the instant case, the Deputy Minister was acting pursuant to the provisions of Section 20 of the Public service Act and not under either Section 22(2) or (3) of the said Act, to which in our view, Section 31(4) is directed. We find that the grievor was not removed from his employment nor dismissed pursuant to Section 22(2) and (3) of The Public Service Act. In our view, the Deputy Minister is not required under Section 31(4) of the Regulations to hold a hearing when he acts pursuant to Section 20 of The Public service Act, as he did in this case. - 10 - Neither the Collective Agreement nor The crown Employees Collective Sargaining Act, nor The Public Service Act nor the Regulations thereunder give a right to grieve against a declaration issued by a Deputy Minister pursuant to Section 20 of The Public Service Act. We are accordingly of the opinion, that the grievance fails on the ground that we have no juris- diction, statutory or otherwise, to entertain it. It fails on the additional ground that it has not been shown that the grievor was dismissed from his employment as alleged by the grievance. Indeed, as stated, we have found that there was no dismissal from employment. He simply ceased to be a public servant on November 4, 1977 by reason of the declaration of the ~Deputy Minister under Section 20 of rhe Public service Act. In any event, it is clear since the decision of this Board in re Ferguson and Ministry of Industry and Tourism 35/76 that a grievor is not entitled to a hearing under Section 31(4) of the Regulations where the applicable Collective Agreement contains provisions such as those found in Article 30 of the Collective Agreement that governs the relations of these parties. Having determined that the underlying conditions of Section 20 have been met, that a hearing need not have been held under Section 31(4) of the Regulations, and having decided upon the evidence that the grievor was not dismissed from his employment, we have no alternative but to dismiss the grievance for the reasons already stated. The grievance.is accordingly dismissed. - 11 - Dated at Toronto, Ontario, this 15th day of August, 1978. (P. John Brunner) P. JOHN BRUNNER, VICE CHAIRMAN I concur E. A. MCLEAN, MEMBER I concur HARRY SIMON,MEMBER