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HomeMy WebLinkAbout1987-2443.Jones.89-04-10 DecisionONTARIO EMPLOYCS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8- SUITE 2100 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 128 - BUREAU2100 TELEPHONE/TÉLÉPHONE (416) 598-0688 2443/87 to 2447/87 IN THE MATTER OF AN ARBITRATION Under THE CROWN EWPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Jones) Grievor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer Before: APPEARING FOR THE GRIEVOR: APPEARING FOR ' THE EMPLOYER: HEARING: J. Forbes-Roberts - Vice-Chairperson I.J. Thomson - #ember M.F. O'Toole - Member A. Ryder Counsel Gowling & Henderson Barristers & Solicitors R.J. Anderson Senior Solicitor Legal Services Branch Ministry of Community and Social Services June 3, 1988 August 16, 17, 1988 October 11, 1988 November 17, 1988 The grievor, Mr. Ronald Jones is employed with the Ministry of Community and Social Services ("the Employern) as a Parental Support Worker (”P.S.W.” . He has worked in the Employer's Income Maintenance Programme for approximately twenty (20) years, and barring the instant matters has apparently had a clean record. He has before this Board five (5) grievances all dealing with disciplinary penalties handed out to him from October 9, 1987 to January 19,1988. They are as follows: October 9, 1987 - written reprimand October 14, 1987 - written reprimand January 11, 1988 - one day suspension January 13, 1988 - three day suspension January 19, 1988 - five day suspension A single issue, though not a single set of facts forms the basis of the dispute between the Employer and the grievor. It is the Employer's contention that the grievor refused to perform his assigned duties. It is the grievor's position that the Employer ordered him to perform at worst an illegal and at best an immoral act. The facts are as follows. A P.S.W. helps social assistance recipients to enforce support orders, This may involve negotiating agreements to pay, enforcing court ordered support payments, and/or collecting payments which are in arrears. Prior to 11387 the P.S.W. assisted the custodial parent who was seeking to enforce an agreement or order by helping to complete the documents and affidavit mater- ials which would be put before the court. Central vas Form 35 Request For Enforcement (see Appendix A). The P.S.W. helped the custodial parent complete this affidavit and then commissioned her* sworn signature. Arrears were ascertained based on information from the creditor, sometimes from the debtor, and by examining the court ledgers. Hovever prior to 1987 the P.S.W. was not limited to this clerical function. The sources of information used to ascertain the amount of arrears were recognized as potentially less than accurate. The court ledgers were sometimes incomplete ox out of date. The creditor sometimes did not know if she had received out of court payments, or their amounts. Sometimes the debtor - * Evidence was heard that the vast majority of custodial parents seeking to enforce orders are mothers. For simplicity we vi11 usc the female pronoun throughout. -2- could not be found and therefore could not give his side of the past payments story. Recognition of this potential inherent inaccuracy vas granted in two (2) ways. First, in paragraph 4 of form 35 following "The order is in default in the amount of $ ...”, the P.S.W. was permitted to add the phrase “as per the court ledger". There was thus no suggestion that the affidavit's deponent or the commissioning P.S.W. had performed any calculations themselves, but rather were simply relying on the courts’ information. Indeed in extreme cases the P.S.W. vas permitted to insert the phrase "amount of arrears unknown" and the judge would then simply deem the amount owing. As part and parcel of this system the P.S.W. vas granted standing before the court. He or she could thus flag for the judge any “guesstimates” in the affidavit or supporting materials and leave it to the bench to make a final determination. In 1987 the Support and Custody Order Enforcement Act (”S.C.O.E.A.”) came into effect. Following the enactment of this legislation changes occured in the grievor's function and in the enforcement procedure itself. P.S.W.’s began using what vas known as a S.C.O.E.A. filing package. Part of this package vas Form 35A Statement of Arrears (see Appendix B) which replaced Form 35. It remained the P.S.W.'s function to assist the creditor in collecting the financial information necessary to file this form, and to commission her svorn signature. However there ended the similarity between Form 35 and Form 351. In using Form 35A the P.S.W. vas not permitted to insert in paragraph 4 the qualifying phrase "as per court ledger" or "amount of arrears unknown". Instead an exact; figure had to be sworn as due and owing by the debtor. Indeed the exact statement of arrears had to be broken down precisely in Schedule A on a month by month basis. The creditor had to swear both these statements and the P.S.W. had to commission her signature. In addition the P.S.W. could no longer appear in court to clarify ambiguities or "guesstimates". S.C.O.E.A. also made provision for assignment of support orders to the Ministry. In those cases the P.S.W. vas expected to svear to the statement of arrears himself in an effort to realise on default orders. Unfortunately the new legislation and forms did not improve the sources or quality of information upon which the forms were completed. Court ledgers were still often out of date, the creditor still often didn't know if unrecorded monies had been paid to her, and the debtor vas still often not available to tell his side of the story. Nevertheless under S.C.O.E.A. the grievor -3- vas being asked to personally swear to or to advise a client to Swear to the accuracy of information gathered from these sources. It is over this issue that the Employer and the grievor came to an impasse, client was uncertain of the amounts owing and they could not be reliably ascertained he refused to advise the client to sign the Form 35 nor would he commission her signature. In the case of an assignment to the Ministry in which the grievor was uncertain of the amounts would not personally swear the Form 35A or attendant Schedule A. Both acts prevented filing of the- S.C.O.E.A. packages. Under this new regime if the grievor knew that a owing he The Employer took the position that there was no difference between Forms 35 and 35A, and thus the grievor's refusal to complete the S.C.O.E.A. packages constituted an improper refusal of a legitimate work assignment. and therefore was insubordina- tion. The grievor took the position that to swear or to counsel the swearing of a false affidavit vas illegal and could leave him open to criminal or civil liability, By way of clarification it was agreed that the grievor completed approximately eighty (80) per cent of the S.C.O.E.A. cases assigned to him, It was only when he was unsure of certain information that he refused to act as commissioner or deponent on an affidavit. This apparently amounted to three (3) files, Taylor, Bressette and Desbiens. Beginning with the Taylor file the grievor attempted to make his concerns understood to his supervisor, Mr. Peter Lowery. This was done both verbally and in writing. We do not find that Mr. Lowery ever particularly took the grievor's concerns serious- ly nor that he attempted to respond to them in a meaningful way. By letter dated October 2, 1987 the grievor outlined to Mr. Lowery the nature of his concerns, highlighting the issue of Form 35A. He requested a written response. This came in the form of Appendix C. We hardly find Appendix C responsive to Mr. Jones' concerns. It became clear from Mr. Lowery's oral testimony that he believed the Form 35A only represented a statement which had to be true to the best of the deponent's ability and based on the available information. This quite obviously begs the question of what to do when the information is available. Indeed one of the Employer's own witnesses, Ms, M. A. Moretta conceded that if one could not stipulate the amount owing or in arrears one could not swear or commission a Form 35A, the exact position consis- tently held by the grievor. The grievor ultimately was assessed two (2) written warnings -4- and a one (1) day suspension for his refusal to complete the Taylor file. He susbsequently received a three (3) day suspen- sion for refusing to file a Form 35A in the Bressette file, and a five (5) day suspension for refusing to file one in the Desbiens file. all were over the exact concern highlighted in his October 2, 1987 letter to Lowery. The Employer called evidence as to what actions the grievor could have taken to acquire financial information sufficient to satisfy his conscience vis a vis the Form 35A declaration. Union counsel quite correctly pointed out that information was neither sought out nor certainly not in the Employer's mind at the time the discipline was imposed and is thus irrelevant. The narrow issue becomes did the Employer have just cause to impose disci- pline on the grievor? We find that it did not. The S.C.O.E.A. filing package is Under the title put out by the Ministry of the Attorney General. Instructions on Haw To Complete Statement of Arrears it states: be absolutely accurate in stating the amounts You list The Statement of Arrears is sworn under oath. You must as not ha ving been paid Every payment which has not been made must be identified individually. (emphasis added) The grievor was left in a very unpallatable position. His supervisor*s instructions and those contained in the very package he was being ordered to complete were at odds. The latter only confirmed the grievor's belief that to follow the former vas to perform or to counsel an illegal act, and to ignore the dictates of his own conscience. The Employer sought to invoke the "obey now, grieve later doctrine, In the event of a subsequent civil or criminal action one wonders what .defence this would leave available to the grievor. (Fortunately this Board does not have to determine if fear of one's supervisor is sufficient to constitute the defence of necessity.) We do not find this an approriate case for the aforemen- tioned doctrine. We do not believe that the grievor's potential liability could be cured by subsequent recourse to the grievance procedure. Knowingly swearing an untrue affidavit is not a breach of the collective agreement, but rather a breach of a statute. Further we find that the Employer's orders to commission and/or swear the Statements of Arrears in the Taylor, Bressette and Desbiens cases were unreasonable and unfair in the circum- stances. Indeed given the clear instructions in the S.C.O.E.A. -5- filing package there is a strong argument that Mr. Lowery was giving orders vhich were impossible for the grievor to follow. The grievances are hereby allowed. All references to the October 9, 1987, October 14, 1987, January 11, 1988, January 13, 1988 and January 13, 1988 disciplinary actions are to be expunged from the grievors record and he is to be made whole for any monetary loss flowing. from their imposition. The Board will remain seized in the event of any difficulty in the implementa- tion of this award. Dated at Toronto this 10th day of April, 1989. t/ J. Forbes-Roberts, Vice-Chairperson T.J. Thomson, Member le Request for Entorcernent Form 35 Court fiel no. at Creditor full name I J I the undersigned, make oath and say: 1. I seek to enforce the following order attach copy) Date of order Court 2. The order is king enforced for the benefit of Full name(s1 Court file no. Relationship to creditor 3. I authorize the court to receive, record and pay out tome or my assignee all sums payable under the order, including costs. 4. The order is not in default. or The order is in default in the amount of S as of today. 5. 6. 7. I request that the order be enforced against the debtor now/and automatically upon my future default, bv mans of a notice of default requiring the debtor to file a statement of financial information, appear before the court to explain under oath the default up to the date of that appearance and to pay into court the costs of the proceeding, incurred by me or those acting on my behalf. I also request that the debtor submit to an examination of assests and means if so directed by the clerk of the court. request the court to, consider enforcement of this order by ordering any or all of the remedies set forth in the Family Law Reform Act, induding imprisonment, as may seem appropriate to the court. Provincial Court Statement of Arreat (Family Division) It On1arm address Creditor Full name 1 portal code) I, the undersigned, make oath and say: Debtor Full name Address for service (srrset 6 number, municipality, portal codcl 1. I am ?he creditor under the following - 0 order Date of order bun 0 agreement filed with the court Date of agreement Date filed &4ttach copy of order/agreement) 2. The following amounts due under the ordedagreement have not been paid: Date payment due Amount due Date paid Court file no. bun file no. Amount paid Arreers Total Arrears $ Total interest to date calculated at % Sworn before at the of in the of Signature This form is ro be signed before a lawyer, justice of the mace, not;ry public or commissioner for raking chis - day of ,19-. A mmrnirsroner, etc. 1 rffrrkvitr FD ?? 1 lrw 05/66) Frsnpic eu vir