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HomeMy WebLinkAbout1990-1656.Grummett.91-06-27 :'.L~ '. " ~." ONTARIO EMPLOY~S DE LA COURONNE - ~ =~ · · ' CROWN EMPLOYEES DE L'ONTARIO · ' ~i';r'' :'" ." .'~ ' '", GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS DUNDAS STREET WEST, SU/TE 2100, TORONTO, ONTARIO. M5G 1Z$ TELEPHONE/T~L~-PHONE: (416) 326-~388 RUE DUNDAS OUEST, BUREAU 2~00, TORONTO. (ONTARIO). M5G 1Z8 FACSIMILE/TEL~COPtE : I4 ~6) 326- 13.96 1656/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE B~RGAINING ACT ' Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Grummett) Grlevor The Crown in Right of ontar£o (MiniStry of Financial Institutions) Employer ~BEFORE: B. Keller Vice-Chairperson M. Lyons Member H. Roberts Member FOR THE I. Roland ~RIEVOR Counsel Gowling, Strathy & Henderson Barrister & Solicitors FOR THE J. Knight EMPLOYER Counsel Fraser & Beatty Barrister & Solicitors HEARIN~: February 4, 1991 May 23, 1991- - 2 - DECISION The grievor claims that she was unfairly and unjustly dismissed. The grievor commenced her employment in March 1982 as a Financial officer I (F.O.I). From time to time~ she acted as a Financial officer II (F.O.II). In 1986, she turned 65. She informed her supervisor that she wished to continue to work. She also informed Personnel. She was granted.a c~ne year reappointment. from June 30, 1986 to June 29, 1987 pursuant to s.17 of the Public Service. Act: Age of 17. Every civil servant shall retire at the retirement end of the month in which he attains the age of sixty-five years, but, where in the opinion of the Commission special circumstances exist and where his deputy minister so requests in writing, he may be reappointed by the Lieutenant Governor in Council for a period not exceeding one year at a time until the end of the month in which he attains the age of seventy years. R.S.O. 1980, c. 418, s. 17. Such an appointment is known as an "oyerage appointment" in the Ontario Manual of Administration: - 3 - "Overage Is the extension of employment of a civil Appointment" servant beyond the mandatory retirement age without a break in service. Her employment was extended for further one year terms in 1987, 1988 and 1989. Her request for one last extension in 1990 was denied. The circumstances regarding the denial are, for the purposes of the instant decision, relevant. The section in which the grievor was employed has always had an authorized complement of four employees, one F.O.I and three F.O.II. In February 1988, Eva Steele, an F.O.II, went on extended sick leave. The grievor was appointed to the position on an acting basis. She remained in that capacity until the end of her .employment although, according to witnesses for the employer, she remained substantively an F.O.I. At the same time, Mary Ann Slocombe was appointed to the· F.O.I position to replace the grievor. The reasons given for the appointments were given in a memo'by John W. Sedlak who was Manager, Disclosure Section at the time. That memo read, in part: In order to maintain our service to the public and to cope with.the required examination of reports filed, it is essential that this position be filled as soon as - 4 - possible. Each financial examiner has over 700 reporting issuers to look after and proper lists have to be maintained as required under th.=- Act. In July, a competition was held for Ms. Steele's F.O.iI position. Both the griever and Ms. Slocombe were amo'ng the candidates. Ms. Slocombe was successful and commenced her duties July 10. It was determined at that time that the griever would remain an acting F.O.II to give her the benefit of the hJ~gher salary until the expiration of her term which would not be extended as it had in the past. According to the employer, Mir. Sedlak was told to inform the griever. There is no evidence that he did. This left the F.O.I position vacant and a decision was made to fill it from the~ surplus lists. Once that was done, the.section was over- complemented by one. As she had done in previous years in March, the griever sought an extension to her appointment. Ms. Karen Eby, Deputy Director Corporate Finance, who was newly responsible for the section.in which the griever worked, discussed the matter with personnel and ~as told that it could be granted for special circumstances. She testified that none existed in the instant case and that the request could not be granted. In a meeting on April 12 she and - 5 - Mary Ballingall the grievor's supervisor informed the grievor of the decision. She told the grievor at that time that special circumstances included the need to keep an employee on to train a replacement, the need to retain an individual involved in a special project, or the need to retain an individual who possessed technical expertise. During the meeting, the grievor gave no further reasons in support of her request. At the end of the.meeting the grievgr asked Ms. Eby to put her reasons in writing. On the advice of the Personnel Department, Ms. Eby replied: April 25, 1990' MEMORANDUM TO: Aileen H. Grummett Financial Examiner FROM: Karen L.'Eby Deputy Director, Corporate Finance c.c.: Susan McCallum Mary Ballingall Leanne Yarrow On April 12, 1990 Mary Ballingall and I met with you to discuss your memorandum to Susan McCallum requesting an additional one year over age extension. As per your request, this will'confirm that for the - 6 - reasons detailed in our discussion your request for an additional over age extension cannot ibe supported. No further reasons were ever given although the grievor did make a further request. Three additional facts need to be noted. Ms. Balingall testified that when she and Ms. Eby met with the grievor about her extension, the decision not to retain her had already been made. She further stated ;that nothing prevented the grievor from advancing further reasons on her own behalf although, as mentioned above, ~he did not do so. Two, at the time she was considering the grievor's request, Ms. Eby was considerihg others, some of which were granted. In one of the other cases, a one month extension was granted for compassionate reasons. Three, the grievor was never told that she could give personal reasons for the request. The only examples given to her were those related to business considerations. There are two principal arguments advanced on behalf of the grievor. The first is that the real decision to dispense with - 7 - the' services of the grievor was made when she was not successful in the F.O.II competition. Rather than returning her to her substantive F.O.I position the decision was made to keep her at the F.O.II leuel, and fill her F.O.I position thus effectively, according to counsel for the grievor, disciplining her for winning the F.O.II competition. The second reason advanced is that of procedural fairness. The argument advanced is that the grievor was never given the true . reasons for the decision and thus deprived of an opportunity to try to persuade the employer to grant the extension. In support of this proposition the Board was referred to Nicholson v Haldimand - Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, and Knight v Indians Head School Division No. 19, 30 C.C.E.L., a decision of the Supreme Court of Canada rendered on March 29, 1990. In the latter, case, a director of Education was dismissed without 'cause with three month's notice. The Court held that the director had a right to be tre&ted fairly despite being a holder of office at pleasure. In dealing with the general duty, the Court, at page 253 said: - 8 - The existence of a genera], duty to act fairly will depend on the consideration of three factors: (i) the nature of the decision to be madelby the administrative body; (ii) the relationship existing between the body and the individual; and (iii). the effect of that decision on the individual's rights. The Court has stated in Cardinal vs. Kent Institution that whenever those three elements are to bE found, there is a general duty to act fairly on a public decision-making body (see Le Dain J. for the Court at [S.C.R.] p. 653). The Court then goes on to analyse the three factors and concludes that the school board was obliged on the facts of that case to act fairly. An analysis of the facts of the instant case show that the same duty is owed. In dealing with the basic requirements of the duty the Court said, at page 266: In the case at Bar, the Saskatchewan Court of Appeal found that the basic requirements of the duty to act fairly are the giving of reasons for the dismissal and a hearing, adding that the content will vary according to the circumstances of each case. Since .the respondent could be dismissed at pleasure, the content of the duty of fairness would be minimal and I would tend to agree that notice of the reasons for the appellant board's dissatisfaction with the respondent's employment and affording him an opportunity to be heard would be sufficient to meet the: requirement of fairness. This Court in Nicholson'at [S.C.R.] p. 328, per Laskin C.J. for the majority, found similar requirements to be sufficient in a case where the employee was dismissible from office only for cause. In reply the emPloyer argues that this Board derives .its jurisdiction from s.18(2) of the Crown Employees Collective Bargaining Act: Grievances (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective 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. R.S.O. 1980, c. 108, s. 18~ We are told that the grie¥or's employment was terminated, not for cause, but because the conditions precedent to an overage - 1'3 - extension were not present. That decision, it is argued, is beyond the purview of this Board. In dealing with the need to act fairly, counsel for the employer made two principal arguments. The first is that the requirement is a minimal one; that it is not. rigorous. The second is that the griever did meet with her managers at which time she was informed of the decision and the rea:sons and afforded an opportunity to give reasons. In our view, the disposition of this matter can be made on the issue of procedural fairness. The employer did not argue that there was no such obligation, only that it had been met. It is our determination that it was not. We make that determination based, obviously, on the particular facts of this case. Those facts show that the decision to terminate was made b~ Mr. Larry Waters, Director of Administration and Systems Services when the griever was not successful at the F.O.II competition. It was then that the decision was made to retain the griever as an acting F.O.II, for "compassionate" reasons until the end of her one year extension and then not renew it. The griever was never told, either then or later of Mr. Water's decision and the - 11 - reasons for it, thus d~priving her of the right to know of the decision made and of the opportunity to advance reasons on her own behalf to try to alter that decision. Those could have included, for example, the suggestion by the grievor that she be put back to her F.O.I position so that the same circumstances would exist (at least in terms of the number of.employees in the group), as had existed in previous years. The decision of the Supreme.Court in Indian Head School, supra, provides that the affected person must know the reasons for the discontinuance of employment. Lin the instant case she was never afforded the opportunity. To have met the condition enunciated by the Supreme Court ~he had to be told of the decision taken by Mr. Waters and of the'reason for his decision when it was made. By the time she met with the employer it was too late to have any~po~sible affect on the outcome. The train of events set in motion by that decision were inexorable, and inevitable. By the time Ms. Eby became involved it was too late for the grievor to alter the result. Thus the meeting with the grievor at t,he time could not have had the effect intended by the Supreme Court. To meet, give reasons, and provide.an opportunity for input has to have at least the possibility of altering the result. In the circumstances of this case that was no longer possible and we have no choice but to conclude that the grievor was deprived of even the minimum standards of procedural fairness described in Indian Head School. As a result of this conclusion we need not deal with the other arguments advanced by the parties. The grievance succeeds. The grievor is to be compensated for all lost wages and benefits to the date of June 30, 1991, the whole with interest. The Board remains Seized in the event that there ~is any difficulty in the implementation of this decision. Dated at Nepeanlthis 2?th day of June, 199].. M. Brian Keller, Vice-Chair M .ael Lyons; Unio~ Member Harry Robert, Employer Member I am persuaded to concur in this award by the progression of the reasoning which leads to the final'decision. ' At the same time, I believe the record should show that the issue of procedural fairness which was cited as not being met, was neither intended or deliberate. · Rather it came about more byerrors of omission not commission, on the part of those who were involved in making the decision regarding the further extension of the grievors' employment, by not fully providing the reasons for denying the extension, thus preventing her from advancing reasons of her own in an attempt to have the decision changed. Perhaps this award may help in any future cases where the 'circumstances involved are the same or comparable, by ensuring that all those charged with making a decision avoid repeating the same errors. H. Roberts, Member