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HomeMy WebLinkAbout1983-0634.Fish.86-09-19,go m.+.cms STREET WEST. TORONTCJ. ovT/vIIo. MSG Lx?-sum mo ,E‘EPHONEl m/599- 0699 634183, 635183, 636183,~ 637183 638183 639185, 640183, 641183, 642183, 643183 752183, 753183 Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For The Griever: -- For The Employer: Hearing Dates: OPSEU (M. Fish) - And - The,Crown in Right of Ontario (Ministry of Colleges & Universities) I. C. Springate Acting Chairman W. Walsh Member P. D. Camp Member S. Goudge, Counsel Gowling & Henderson Barristers & Solicitors L. McIntosh, Counsel Crown Law Office, Civil Ministry of the Attorney General March 19, 1984 November 7, 1984 November 14, 1984. Grievor Employer I - 2 - At all relevant times the grievor was an industrial training consultant with the Ministry of Colleges and Universities based in Windsor. As a result of certain events in the latter part of 1983, he filed a total of 12 grievances which the union referred to this Board for determination. At an initial hearing held with respect to the grievances, the parties reached agreement that it would be appropriate to group the grievances into three categories, and to deal with each category separately. They’ also agreed that it would be appropriate for the Board to wait until all three categories had been dealt with prior to issuing a single decision relating to all of the grievances. The Board heard the evidence and the. representations of the parties with respect to the first category of grievances, namely those referred to the Board in File Nos. 634/83. to 641/83, ‘inclusive. The parties then indicated that they wished to engage in settlement discussions concerning the remaining grievances. We are advised that these discussions have resulted in the grievances being settled. Accordingly, there is no need to deal with the merits of the last two categories of grievances, namely those in Board File Nos. 642/83, ,643/83, 752/83 and 753/83. - 3 - The first category of grievances includes grievances which allege that the enployer violated the collective agreement binding on the parties, the Crown Employees Collective Bargaining Act, the Criminal Code, the Constitution Act, the Labour Relations Act, and the Ontario Human Rights Code. At the hearing, the parties agreed not to address each of the grievances separately, but rather to deal in a general way with the primary event giving rise to the grievances, namely the suspension of the grievor with pay I and as to whether this suspension was without cause and could be remedied by the Board. As will be detailed below, the grievor was suspended with pay as a result oE certain complaints relating to his conduct. During his suspension, fiinistry officials investigated the complaints and concluded they were without foundation. The grievor then returned to work without any formal disciplinary action being taken against him. In these proceedings the employer readily acknowledged that the grievor had not engaged in any misconduct warranting discipline, and, indeed, took the position that the grievances were not arbitrable because no discipline had been imposed on him. As part of his job, the grievor was responsible for ensuring that individuals serving under contracts of ,I, .:‘,. :i, :.;. - 4 - apprenticeship acquired the proper schooling and practical training before being issued a certificate of qualification by the Ministry. To this end, he dealt with a number of employers and trade unions. One of these trade unions was the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 552 (“the U.A.“). UnEortunately, the grievor did not have a good working relation,ship with Mr. Jerry BoYl.e, the U.A. Business Manager. This appears to have been due, in part, to the grievor!s insistence on going strictly “by the book”. One area of contention between- Mr. boyle and the grievor concerned the status of a Mr. Dennis Bravo, a U.A. member and apprentice. Mr. Boyle was of the view that~ Mr. Bravo met all of the requirements to receive a certificate of qualification. The grievor, however, was of the view that Mr. Bravo had failed Tao provide him with the necessary documents to demonstrate that this was the case. The grievor was well aware oE the fact that Mr. Boyle was displeased with him. In May of 1983, Mr. W. E. Collins, an official of the Ministry, advised the. grievor that Mr. Boyle had complained to him about his conduct. The grievor responded by providing Mr. Collins with a written statement covering a number of matters relating to U.A. members, including the situation involving Mr. Bravo. -5- On May, 25, 1983, Mr. E.E. Thomas, the Ministry’s Manager of Client and Student Services, Skills Development Division, received a letter from Mr. Alexander Ahee, a solicitor retained by the U.A. The letter read as follows: Dear Sir: We are solicitors to the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 552, in Windsor, Ontario. We are writing to inform you of various difficulties we are encountering with your area representative in Windsor, one Mr. William Fish. It appears that, for whatever reason, . Fish and Mr. Jerry Boyle, Business :inag er of Local 552 , have had a strained relationship for some time. Be that as it may, we are concerned with the manner in which Mr. Fish has been dealing with members of Local 552. For exainple, Mr. Dennis Bravo, a member of Local 552, was prevented from writing his Journeymen’s examination for two and one-half months. During this time Mr. Bravo was unable to work at his trade while a job opportunity was available to him. It was only after Mr. Fish received a letter from our office, that Mr. Bravo was Einally permitted to sit for his exam. Since Mr. Bravo has lost 2-l/2 months salary we request an explanation as to the reasons for delay. Furthermore, on several occasions Mr. Fish has seen fit to cancel member’s [sic] apprenticeship contracts, solely on the basis that his oEfice was not in receipt of their latest addresses. We have reports of Mr. Fish refusing to respond to numerous inquiries of apprentices made to his office. - 6 - In addition to alla of the above we have had continuous reports of Mr. Fish d,efaming Mr. Jerry Boyle’s reputation to the apprentices oE Local 552. Be further advised that Mr. Boyle has directed us to investigate this matter with a view to filing civil suit against Mr. Fish. We are requesting that your office ‘investigate these matters so that we might once ~again establish a spirit ,of cooperation between your Windsor Office and the Local Union. Our apprentic.es deserve nothing less. Although it is not clear how he received it, a 7 copy of Mr. Ahee’s letter came into the g’rievor’s possession. The grievor then sought and obtained assurances from the Ministry that it would assist him should a civil suit be brought against him as threatened in the letter. Mr. Ahee’s letter was ‘brought to the attention of the senior .oEficials’ in the Ministry, including Mr. Don Ahrens, General Manager of Field Services, Mr. A; J. Iiumber, Director of the College Affairs Branch and Mr. K.E. Hunter, Assistant Deputy Minister, These officials decided that an inquiry should be conducted into the allegations raised by Mr. Ahee.’ They also concluded that persons outside the Ministry, including officials of the U.A., would more likely perceive the inquiry as being truly independent if the grievor was removed from the Windsor office during the inquiry process. On June 14, 1963, - 7 - Mr. Ahrens, accompanied by Al Barron, the Regional Administrator with the Ministry’s Employment Traininy Branch, went to see the grievor. Mr. Barron, who happened to be in South Western Ontario on other matters, knew nothing about the grievor’s difficulties with Mr. Boyle or Mr. Ahee’s letter. When Mr. Ahrens and Mr. Barron met with the grievor, Mr. Ahrens handed him a letter signed by Mr. R.M. Myron, who in the absence of Mr. Humber was serving as Acting Director of the Collage Affairs Branch. The letter read as follows: Dear Mr. Fish: It has been reported to me that several allegations have been made against you by one of your client groups. In view of the seriousness oE this matter, I have decided that it is necessary to establish a fact-finding team to review the circumstances surrounding this situation. Effective immediately and for the duration of this review, a period not to exceed four weeks, you will be relieved of your responsibilities, with full pay. As I’m sure you can appreciate, it is necessary to take this action in order to avoid further complicating the situation. You will be required to remain available for the enquiry. We will advise you of any decision we may take, following this review. The yrievor testified that on reading the letter, he asked MK. Ahrens who had made the allegations in question and what they were, to which Mr. Ahrens replied f - 8 - that he would be given this information at a later date. Mr. Ahrens, however, testified that the grievor did not ask him about the allegations, and he did not on his own initiative explains them, since he felt the grievor would recognize that they involved the allegations raised in Mr. Ahee’s letter. Mr. Ahrens’ testimony is supported by the evidence given by Mr. barr.on. Pi r . Barron testiEied that when Mr. Ahrens handed the letter to the grievor, the grievor did not ask any questions. Mr. Barron stated that from the brief discussion between the grievor and Mr. Ahrens he gathered that there had been ‘some sort of complaint against the grievor which the grievor already knew about. Given this evidence, we are of the view that the grievor likely did not ask Mr. Ahrens what a~llegations had led to his suspension or who had made the allegations. The committee set up to investigate the allegations against the grievor was comprised of three Ministry officials, namely, Ms. Susan Campbell, Mr. Ian McArdle, and Mr. H. Smith. The committee convened a meeting in Windsor on ~June 22, 1983, where it interviewed a number of individuals, including the grievor. For part of the time, the grievor was accompanied by, Mr. Vie Cooper, a union staff representative. Both the grievor and Mr. Cooper asked the committee what the grievor had been charged wi’th, to which the’ committee members replied that they were not,at ; ,. - 9 - liberty to disclose that information. In these proceedings, the grievor testified that at the time he met with the committee he did not know what allegations he had to meet. while, in our view, it would have been better had the committee expressly advised the grievor that it was inquiring into the allegations raised in Mr. Ahee’s letter, we are satisfied that the grievor had already surmised that this was the case. The grievor brought to the interview all &material in his possession relevant to Mr. Ahee’s allegations. Further, prior to being asked any questions by the committee members, the grievor gave an opening statement in which he outlined his dealings with both Mr. Boyle and Mr. Bravo. The canmittee members then asked the grievor a number oE questions. The grievor testified that he felt his interview “was very very fair”. He further stated that “I walked out of there feeling very good about it”. Upon completing its inquiry, the committee filed a report setting out its findings of fact. On the basis of this report, senior Ministry officials concluded that the grievor had not engaged in any wrongdoing. On July 8, 1983, Mr. Humber forwarded a letter to the grievor which read as follows: The fact-finding team, to which Mr. Myron referred in his letter of June 14, has ‘: . ‘. - 10 - completed, its review and submitted its report. I attach a copy o.E that report. Mr. K.E. Hunter, Assistant Deputy Minister, Mr. D. C. Ahrens, Manager of Field Offices, and I have examined the report and concluded that, in our opinion, the allegations in Mr. Ahee’s letter of May 17 have not been substantiated. Accordingly, and as arranged between you and Mr. Beitler, your return to duty takes eEfect from July 8. I attach a copy of my letter to Mr. Ahee. May I emphasize that the fact of being relieved from duties is entirely without detriment.. to you. It is not to be construed as having any disciplinary implications, being- merely an. administrative device, to demonstrate the impartiality of our review and subsequent decisions. On the same date, Mr. Humber sent a letter to Mr. Ahee which stated: Dear Mr. Ahee: Mr. Ahren’s letter of June 2 acknowledged you letter of May 17 and indicated that your allegations were under review. A fact-finding team was appointed. It has completed its review and reported its findings. Mr. K. E. Hunter; Assistant Deputy Minister, Mr. D. C. Ahrens, Manager ~of Field Offices,’ and I have examined the report and, in our opinion, the allegations that Mr. Fish carried out his duties in an inappropriate manner were not well-founded. Although advised that he could return to work ‘uly 8, 1983, the grievor did not actually return until July 18,.1983 because of vacation plans. On his return, the grievor was advised that the responsibilities of the - 11 - industrial training consultants in the Windsor area had been altered so that he would no longer be dealing with the U.A. The grievor testified that for a short time after his return to work he received some comments from client groups relating to his suspension, but that the suspension did not affect his ability to perform! his duties. He stated that during the actual period of his suspension he felt under a great deal of stress and had been concerned for his job. While we have no doubt but that this was the case, we feel it reasonable to assume that much of the grievor’s feelings of stress and concern flowed from the fact of the investigation itself, and would have been present even if he had not been suspended. The union contends that the suspension of the grievor was without just cause, and that the Board can deal with the matter pursuant to section 18(2)(c) of the Crown Employees Collective Bargaining Act, which provides as follows: 18-(Z) In addition to any other rights of grievance under a collective agreement, an employee claiming.. . 1 c) That he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the yrievance procedure provided in the collective - 12 - agreement and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. The employer, for its part, contends that the above provision applies only to disciplinary suspensions and that the grievor’s suspension was not disciplinary. In the alternative, the employer contends that Mr. Hunter was empowered to remove the grievor from his position pending an investigation pursuant to section 22( 1) of the~Public Service Act and a delegation to him of the Deputy Minister’s authority under that Act. The relevant provi,sion of the Act provides as follows: 22-(l) A deputy minister, may, pending an investigation, suspend from employment any public servant in his ministry for such period as the regulations prescribe, and during any such period of suspension may withhold the salary of the public servant. The regulations, in turn, contain the following provisions: 18.-(l) Where the deputy minister suspends a public servant from ‘employment pending an investigation, the period of suspension shall not exceed twenty working days. (2) Notwithstanding subsection (1) , where in the opinion of the deputy minister, an additional period of time is required, to complete the investigation, the deputy minister may renew the period of suspension for not more than twenty working ,days in each case, for such additional periods as are considered necessary. - 13 - It would appear that the purpose of section 22(l) of the Public Service Act is to allow a deputy minister, or his designate, to immediately remove an employee from his position pending an investigation. Presumably this authority is given to a deputy minister because in some instances it is inappropriate to allow an employee to remain in his position while allegations against him are being investigated. Section 18(2) of the Crown Employees Collective Bargaining Act allows an employee to challenge a suspension before this Board. That section does not exclude suspensions pending an investigation, and accordingly, we see no reason for assuming that the challenge to a suspension cannot relate to a suspension pending an investigation, p articularly given that such a suspension may be without pay. The assessment oE the justness oE a suspension of an employee pending investigation involves consideration of a number of factors. One is the nature of the concerns or allegations that are being investigated. The greater the possible adverse impact on the employer, other employees or the public of the alleged misconduct of the employee, the more justified a suspension pending investigation. Also relevant is how quickly the investigation is conducted. h suspension that was initially justified may cease to be so if the investigation is not pursued with due diligence. A L. . I I A. . . . - 14 - . .1 major consideration is whether or not an employee is suspended with pay. Particularly in those instances where the employee is found not to have engaged in any wrongdoing, a suspension wi,th pay will be significantly easier to justify than a suspension without pay. In the instant case, the Ministry was advised by legal~counsel of alleged improprieties on the part of, the grievor in performing his work. While there was not a compelling need to remove the griever from his duties pending the investigation of these allegations, one cannot KegaKd as unreasonable the conclusion of the Ministry that others, including the U.A., would moKe likely perceive the investigation as being independent if the griever was absent from the Windsor office at the time. The committee inquiring into the allegations was established and conducted its inquiries with dispatch. The griever continued to be' paid throughout the period. After the committee filed its report, the griever. was promptly provided with a, copy of it by Mr. Humber, along with a letter advising him that the employer had concluded that the allegations against him had not been substantiated and assuring him that his suspension with pay was entirely without detriment and was not to be construed as haviny any disciplinary implications. Taking all of these considerations into account, we are unable to conclude that the suspension of the griever pending the . - 15 - inquiry of the allegations against him was unjust. Accordingly, the grievances filed relative to the suspension are hereby dismissed. . We would stress that OUK dismissal oE the grievances reflects only to the appropriateness of the employer's action in suspending the grievor with pay pending the investigation of the allegations against him. AS the investigation demonstrated, the allegations were without foundation. DATED at Toronto, Ontario this 19th day of September, 1986. I. C. Springate, Acting Chairman W. Walsh, Member P. D. Camp, Member