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HomeMy WebLinkAbout1987-2613.Miller.88-11-07 • ONTARIO EMPLOYES OE LA COURONNE CRt?WNEMALOYEES pEL'ONTARI(3 GRIEVANCE CPMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 160 DUNDAS STREET WEST. TORONTO, ONTARIO, MSG 7Z8-SUITE 2'100 rE1 EpHpNff TEtEPNONE 180,RUE DUNDAS QUEST, TORONTO, (ONTARIO)M5G IZS-BUREAU2100 (478)548-0888 2613/87 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEO(G. Miler) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: J.W. Samuels Vice-Chairperson I . Freedman Member M. O'Toole Member For the Grievor: L. Rothstein Counsel Gowling & Henderson Barristers and Solicitors For the Employer: L. McIntosh Counsel Crown Law Office Civil Ministry of the Attorney General Hearings: October 12, 1988 October 18, 1988 ...._„ .: i ik 4 ' r I era+N 2 On February 24, 1988, Gerald Miller was informed that he was dismissed from his employment as a correctional officer effective February 26, following the laying of criminal charges against him involving sexual assault. The charges were to be heard in January 1989. Mr. Miller immediately grieved that there was no just cause for the dismissal. Our hearing was scheduled to begin on October 12, 1988. On October 7, Mr. Miller received the following letter from the Ministry's Regional Director of Metro Region, Mr. J. L. Main: On the advice of legal Counsels 1 have reviewed the circumstances of your dismissal, aa , outl,ined in Acting Supsri.ntendent, kulhern' s Letter to you dated February 24 , 1988 . in light of this review I am hereby rescinding your dismi.seal , and Mr. Mulhern' s lettvxt and reinstating you as an *mployeo of this Ministry, rotroaetfvs to the date of your disfaissal t naEmety, February 26, 1988 . Sowvvvr, I am also hereby ipforming you that under the authority delegated to me by the Deputy Ministert the period from February 26 , 1988 to present will be recorded as a suspension without pay pending investigation, in accordance with 8adtion 221ll of the Public Service Act. The reasons for this suppension without pay are based upon those concerns addressed by Mr. Mulhern in his February lot 1488 letter. I am further advising you that effective this date toctober 7t 19881 you are hereby suspended without pay for a further twenty (20) working days under section 22(1 until November 4 , 1968, to enable the Ministry to undertake a further review and investigation into the matter of your criminal charge. you will be given an opportunity to provide any information on your own behalf which may bo relevant in any such inveatigatiran. in short, when our hearing opened on October 12, we had gathered to deal with a grievance against dismissal, and there was now no dismissal. Instead, the grievor's period of absence from work had now been recharacterized by the Ministry as a suspension without pay pending an investigation, pursuant to section 22(1) of the Piiblic Service Act. The suspension had both retroactive and prospective elements. Up to October 7, the Ministry simply deemed the absence from work as a suspension without pay. Following October 7, the suspension was for twenty days to November 4, 1988. After some preliminary skirmishing, when October 12 drew to a close, it was agreed that the grievor would now file a new grievance against the suspension without pay, and that we would reconvene as scheduled on October 18 to hear this new grievance. The parties would waive any procedural requirements of the grievance procedure under the collective agreement, and agreed that this Board would have jurisdiction to deal with the new grievance. We reconvened as agreed on October 18, faced with the new grievance. Now the Union asked for a preliminary ruling. It was argued that the Ministry should be prohibited from introducing evidence to justify the retroactive suspension, pre-October 7. Firstly, section 22(l) of the Public Service Act provides for a suspension "pending an investigation", and the Ministry conceded that in fact there had been no real effort to investigate before October 7. Secondly, the suspension could only be "for such period as the regulations prescribe" (which "shall not exceed twenty working days", according to section 18(1) of the regulations), and the Ministry's recharacterization of the pre-October 7 period meant that the suspension was for much longer than was permissible. Thirdly, on general principles, one cannot suspend retroactively. The Ministry responded that the Union must elect whether to proceed before the Grievance Settlement Board with respect to the merits of the suspension, or to raise procedural arguments concerning the method of suspension before the Divisional Court. It was suggested that this Board does not have authority to consider an allegation that the statutory requirements have not been met. In any event, the Ministry argued that it had authority to remove the grievor from his employment because of a I 4 substantial and immediate risk to the institution, and that this authority f flowed either from section 22(1) of the Public Service Act, or from the Employer's general right to manage. In our view, our jurisdiction flows from section 18(2)(c) of the Crown Employees Collective Bargaining Act, which enables an employee to grieve "that he has been.....suspended from his employment without just cause". In our case, the grievance deals with particular action by the Ministry. That action is set out in the Ministry's letter of October 7, 1988, It involves "a suspension without pay pending investigation, in accordance with ,section 22(1) of the Public Service Act" (emphasis added) from February 26 to October 7, unposed on October 7, and a further suspension of twenty days "under section 22(1)" to enable the Ministry to undertake a further review and investigation. The issue before us therefore is clearly whether or not the Ministry had just cause to suspend "in accordance with section 22(1) of the Public Service Act". This is the action which the Ministry took; this is the action against which the grievor complains; this is the action for which the Ministry must now show just cause. Furthermore, in our view, our jurisdiction is to determine all matters which bear on the validity of the suspension. The Ministry argued that the case law says otherwise and that matters relating to the procedural requirements of section 22(1) of the Public Service Act must be referred to the Divisional Court. So let us look at these authorities. In Clarke v. Attorney-General for Ontario et al, [1966) 1 OR 539 (CA), Mr. Clarke grieved before the Public Service Grievance Board against his discharge by the Deputy Minister and his grievance was dismissed. He then filed suit in the Supreme Court of Ontario against the Attorney-General and others. Both at first instance, and on appeal, the Court dismissed his suit. The basis of the Court's decision was that Mr. Clarke's dismissal had been litigated before the Public Service Grievance Board, and the Board's i 5 decision determined the merits of the dismissal. In the course of its judgment, the Court of Appeal said (at page 544): The nugatory effect of the failure by the Deputy Minister to afford the ser- vant a hearing before discharging him, is exhaugted when the servant chooses to initiate grievance procedure culminating in a hearing of the grievance before the Public Service Griev- ance Board. The Act, we think, makes it plain that imme- diately that procedure is taken, the effect of the dismissal by the Deputy Minister so far as finality is concerned, is gone, and the Grievance Board of itself initiates a complete and original hearing as to the merits or demerits of the grievance and of the attempt at dismissal and makes its report accord- ingly. In our view, there is nothing in this language which suggests that the Public Service Grievance Board lacked power to consider defects in the dismissal procedure. All that the Court is saying is that Mr. Clarke could not now complain about a lack of a hearing by the Deputy Minister, once there had been a full hearing before the Public Service Grievance Board. If an injustice had been done by the Deputy Minister's failure to hold a hearing, it had been cured by the full hearing provided by the Board. In Re Putnoki and Public Service Grievance Board (1975), 7 OR (2d) 621 (Divisional Court), again the Board heard a grievance against discharge and dismissed the grievance. The grievor now came to the Divisional Court and argued that the Board had lacked jurisdiction to hear his grievance, because the Minister had failed to fulfil certain procedural requirements • leading to the discharge. The Court put the issue this way (at page 625): g P g we must decide whether certain hearings re- quired by the Regulations to be conducted on the grievances and the dismissal must, as a condition precedent to the Board exercising its jurisdiction, be conducted fully and property- in accordance with the Regulations and the rules of natural justice. And, after considering the grievor's arguments, the Court said (at page 634): He says that the Board had no jurisdiction betause there was, in effect, no hearing before Mr. Hamilton under s. 81(2). He submitted i that such a hearing, properly completed, was a condition pre- 6 cedent to the exercise of jurisdiction by the Board, In fact a hearing was provided and Mr. Putnoki refused, on no con- vincing grounds, to take advantage of it. But even if it can be said that no hearing was held by Mr. Hamilton, the matter is conclusively decided in law by the decision of the Court of Appeal in Clarke v. A.-G. Qnt, et al., [1966] 1 O.R. 539, 54 D.L.R. (2d) 577. The Court of Appeal there held that a fail- ure by the Deputy Minister to hold a hearing under s. 31(2) before dismissing an employee does not vitiate subsequent proceedings before the Board, or the authority of the Lieuten- ant-Governor in Council to dismiss the employee. The hearing before the Board is a new proceeding and is unaffected ky prior defects in proceedings within the Ministry. And then at page 635: Once the Deputy Minister has purported to dismiss the em- ployee, even if he has not complied with s. 31(2), when he has given the notice required by s. 31(3) and the employee then applies to the Board for a hearing, the Deputy Minister's act is converted into a proposal or tentative decision to dismiss hire. It is then subject to the Board's review and there all the issues on the merits of the employee's use are considered. That review replaces by a completely new proceeding all the proceedings that have gone before, except the proposal of the Deputy Minister to dismiss. Any defect in the hearing under a. S1 (2) is cured by the hearing before the Board. A fortiori, if the employee decides to waive the hearing under s. 81(2) in favour of going at once to the Board, the Board's hearing is an effective substitute for it and allows determination of the merits of his case before a tribunal of the highest authoi-- ity. In short, the Court upheld the hearing by the Public Service Grievance Board. Again, there is nothing in this language which suggests that the Public Service Grievance Board lacked P ower to consider defects in the dismissal procedure. And the same thing happened in McKenna and the Grievance Settlement Board (unreported decision of the Divisional Court, dated June 25, 1982). The Board heard the grievor's complaint against his discharge and dismissed the grievance. The grievor then appealed to the Divisional Court, arguing that the Board had no jurisdiction to hear his grievance. The Court simply cited Putnoki and Clarke, and quoted the passages we have quoted above, and decided that the Board acted within its jurisdiction, 7 In our view, these authorities confirm the wide power we have under section 18(2)(c) of the Crown Employees Collective Bargaining Act. And the Grievance Settlement Board's own jurisprudence has further confirmed this power. In Fish, 634183 et al (Springate), the Board considered the relationship between section 18(2) of the Crown Employees Collective Bargaining Act and section 22(1) of the Public Service Act. The Board said (at pages 13- 14}: It would appear that the purpose of section 22 ( l ) o£ 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, particularly given that such a suspension may be without pay. The assessment of the justness of -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 8 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 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 with pay will be significantly easier to justify than a suspension without pay. In sum, in our view, section 18(2) of the Crown Employees Collective Bargaining Act gives us broad authority to hear and determine the grievor's complaint that there was no just cause for his suspension pursuant to section P J P P 22(1) of the Public Service Act, and this includes a consideration of the procedural aspects of the suspension. Now, having said all this, should we now preclude the Ministry from introducing evidence concerning the merits of its retrospective suspension of the grievor from February 26 to October 7, 1988, because the Ministry did not really engage in an investigation during that period, and because it appears that the suspension was for longer than is permitted by the regulations. In our view, it may or may not be that these procedural defects are absolutely fatal to the Ministry's case. In any event, we have not yet really determined what is an "investigation" under section 22(1) of the Public Service Act, nor what "pending investigation" means, and nor have we heard enough to know whether whatever the Ministry did do during the period in question could be sufficient to satisfy the requirements of section 22(1). In short, in our view, in order to judge whether or not the Ministry had just cause for the suspension, we need to hear the evidence concerning the procedural and substantive aspects of the suspension. At the end of the day, we will then hear full argument concerning the just cause for the suspension, and will determine the grievor's case. Done at London, Ontario, this 7th day of November amuels, Vice-Chairperson 6L, I. edman, Member M. O'Toole, Member