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HomeMy WebLinkAbout1986-1152.Whelan.88-01-13 .. \.' .; ONTARfO CROWN EMPLOYEES GRIEVANCE 1111 SETTLEMENT BOARD 180 DUNDAS STREET WEST. TORONTO. OtflAAIO. M5G lZ8 - SUITE 2100 IN THE MATTER OF AN ABITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE BRIEVANCE SETTLEMENT BOARD Between: OPSEU (W. Whelan) and The Crown in Right of Ontario (Ministry of Attorney General) Before: R.L. Kennedy G.A. Nabi I. Cowan Vice-Chairman Union Member Employer Member For the Grievor: M. Cherney, Counsel, Gowling and Henderson, Barristers & Solicitors. For the Employer: L.M. McIntosh, Counsel, Crown Law Office Civil, Ministry of Attorney General. Hearing: November 25, 1987 TELEPHONE' 416/598- 0688 1152/86 Griever Employer ... "i.' ~~ c< - 2 - DECISION , This matter comes before the Board on the basis of an Agreed statement of Facts in the following terms: 1. The Grievor, Ms. Sheila Whelan, was hired effective May 5, 1986 as a Court Registrar with the District Court (Criminal Section) at 361 University Avenue, Toronto. 2. She was appointed to the public service pursuant to a contract of employment with an expiry date of March 31, 1987. The contract provided for a lImaximum number of hours" of work of 1000 hours. The contract also provided that the Grievor's employment would be lion an as required basislf. The contract of 'employment is attached as Schedule "All. J. There is no position Specification for the position of Court Registrar, but the duties are similar to those of the position of Court Clerk for which the Position specification is attached as Schedule "B". 4. In July of 1986, the Grievor was charged that she, on or about the 10th day of July, 1986 had in her possession property of a value exceeding $1;000.00, knowing that the property was obtained by the commission of an. indictable offence, contrary to the Criminal Code. 5. On,July 11, 1986, the Grievor was advised by telephone by Mr. Thompson, the Local Registrar of the District Court, that while the charge was pending she would not be called in to work. The telephone conversation was confirmed in a letter dated July 17, 1986 and in a further letter dated July 29, 1986, copies of which are attached as Schedules lie" and "0". 6. On September 5, 1986, the Grievor called Mr. Thernesz, the Deputy Local Registrar of the District Court, to advise. that she would be filing a Grievance with respect to the decision not to call her in to work. 7. Form. "E". On September 15, 1986, the Grievor filed a Grievance A copy of the Grievance Form is attached as Schedule ; " - 3 - 8. In a letter dated September 23rd, 1986 addressed to the Grievor, Mr. Thernesz, Deputy Local Registrar of the District Court, acknowledged receipt of the Grievance Form and stated that the qrievance was denied because the "time limits had elapsedll. A copy of Mr. Thernesz' letter of September 23rd, 1986 is attached as Schedule "F". 9. A Stage 2 meeting was held on November 5, 1986. In a letter dated November 17th, 1986, Mr. Jackson, the designee, stated that II (i)'n light of the conflict which exists between the duties of your unclassified position and the criminal charge pending against you...the Ministry has acted appropriately in not calling you in to work... (and) (y)aur grievance is therefore denied". The letter of November 17, 1986 is attached as Schedule "G"; 10. On January 15, 1987, the Grievor appeared in the District court and pleaded guilty to and was convicted of the aforementioned charge. On March 4, 1987 she was . sentenced to 3 years probation and to perform 300 hours of community service work. A certified copy of the indictment, probation order and information are attached as Schedule "Rfl. 11. There were no complaints about the Grievor's performance at work. With respect to Schedule A referred to in the Agreed statement of Facts, the terms of the contract of employment material to this grievance are accurately summarized in Paragraph 2 of the Statement. SchedUle B referred to in" Paragraph 3 of the Statement establish that as part of her regular job duties, the Grievor was actively involved in the administration of the court, the listing and scheduling of cases for trial, the actual operation of the court when in session, recording exhibits when introduced at trial and looking after their safekeeping thereafter, and various functions relating to keeping track of court orders, pre-sentence reports and other matters. In these . ," -0 - 4 - functions she would have ongoing contact with judges, other court officials, counsel appearing in the courts, prospective jurors, law enforc~ment officers, accused persons and other members .of the public having dealings with the court. The grievance which was filed alleges unjust discipline and seeks full pay and benefits while under suspension retroactive from the date of the suspension. The issue of the timeliness of the grievance was not pursued by the Employer on the hearing. It was the argument of the Employer that this Board had no jurisdiction to review the management decision not to call the Grievor into work. The express terms of the contract under which she was employed contained no minimum hours of work guaranteed and further provided specifically that the Grievor's employment would be on an "as required basis". In these circumstances, the Employer had a complete discretion as to when and whether to call her into work. It was argued that pursuant to Section 18 (1) of the Crown Emoloyees Collective Barqaininq Act R.S.O. 1980 c.10a, the assignment of work was an exclusive management function. Our jurisdiction to review a management decision had to be found either in Section 18 (2) of the Act or pursuant to the collective agreement, and there was nothing, either in the collective agreement or in the Act that permits an employee to complain about not being assigned work. ~ - 5 - In the alternative, counsel for the Employer argued that if the situation were to be treated as a suspension, then it was a suspension for just cause. It was argued that the case law with respect to the appropriateness of a suspension while criminal charges are pending would indicate that the test is whether the charges impact on the work situation. On the evidence, it was argued that the Grievor was specifically affected in two ways. First, her actual duties were affected by the existence of the charges, by reason of the fact that her continued employment by the court in which she had been indicted would permit her access to her own file and a continuing involvement in the court process. This created a very real and actual conflict making inappropriate the Grievor's continued employment. Second, in terms of the Employer's reputation, her continued employment would entail the ongoing involvement and contact ofa person facing charges before the court with all of the various people involved in the court process. It was argued that, for public servants, their conduct must appear in the ~yes of the general public to be above reproach, particularly in the context of the courts that are administering justice. In the face of this very real concern about public perceptions, there were no particular mitigating factors on the part of the Grievor such as long service that might offset the principle of public service integrity. Reference was made to the prior decisions of this Board in McCrae 50/76 (Swan) and Sarabura 289/80 (E. B. Joliffe). ~ - 6 - For the Union it was argued the Board did have jurisdiction by reason of the fact that, while management had some. discretion in the circumstances, that discretion had. to be exercised fairly. It was argued that the only reason the Grievor was not called into work was because of the pending criminal charges, and that such a decision did not constitute a fair exercise of the discretion. It was, in substance, a disciplinary suspension and subject to arbitral review under the collective agreement. It was argued that the suspension followed immediately upon the laying of the charges and that this was a rushed and arbitrary decision with no genuine investigation of the facts or any attempt to assess the risk of her continued employment. She was given no opportunity to explain her position to management. Reference was made to the.decision of this Board in Knudsen (1980) 26 L.A.C.(2d) '301 (Eberts), which adopted the principles set out in Re Ontario Jockey Club (l97?) 17 L.A.C. (2d) 176 (Kennedy). It was argued that in this case the Employer failed to meet the principles set out in Ontario Jockey Club in that there was no investigation of the circumstances nor any consideration to moving the Grievor to some other area. Reference was also made by counsel for the union to the prior decision of this Board in Gutierrez (19B1) 29 L.A.C. (2d) 333 (Roberts), wherein the Board recognized the principle that the Ministry needed to be above approach; but balanced against that principle certain mitigating factors relating to the long service r - 7 - of the Grievor, the fact that the criminal charges were in no way work related, the fact that the crimes were not of a noteworthy or spectacular nature, and the fact that the grievor's job in that situation did not involve any contact with the pUblic or the police. Counsel for the Union agreed that the reputation of the Crown was indeed a factor to be recognized by this Board, but that did not foreclose an analysis of whether the disciplinary 'suspension in the circumstances was just or unjust. It is our decision in this case that t~e position of the Employer must prevail. The threshold issue is whether there is any obligation upon the Employer to"assign:work to the Grievor; and, based on the specific contractual relationship between them, there is not. The contractual arrangement is that .the Grievor is employed on an "as required basis", and the only reference to the number of hours of work is that it shall be for a maximum of 1000. It is our view that the assigning of work to a contract employee wherein ~he employee specifically agrees that employment is on an "as required basis" is a management discretion not reviewable by this Board. In any event, if the decision is reviewable by us, either as a disciplinary suspension under the provisions of the collective agreement or as to whether or not it is a fair and reasonable exercise of a management discretion, it is our view that based on . . . ; - 8 - the agreed facts, the Employer arguments again prevail. We consider it totally inappropriate that'a person charged with a serious criminal offence should continue in employment in the specific court that will be seized with hearing tha~ offence where such employment involves what is in essence a fiduciary relationship with the court, its processes and persons participating in those processes. The importance of the \ reputation of the Employer and the integrity of the Crown have. previously been recognized by this Board in the decisions referred to by counsel, and we feel this aspect of the matter ~s even more important in the context of the courts than it might be in other areas of the public service. In applying the principles of the Onta~io Jockey Club decision to these factual circumstances, we believe the continued employment of the Grievor would present a reasonably serious and immediate risk to the legitimate concerns of the Employer, both in relation to its reputation and in relation to its day-to-day activities. The Employer did respond almost immediately subsequently to the laying of the charges, and does not appear to have conducted any particular investigations, but there is no indication in the agreed facts or in statements by counsel that there was any additional information to be learned from such an investigation that would have been material to the circumstances. with respect to a possible transfer of the Grievor to other duties, it may be noted that 'the Grievor was hired as a contract employee for a . . - 9 - particular purpose, and under the collective agreement the Employer does not have the right to move her around to other positions as might be done with a member of classified staff. with reference to the Gutierrez decision, it may be noted that none of the mitigating factors relied upqn by the board in that decision that were used to offset the interests of the Employer are present in the factual circumstances of this grievance. In all the circumstances, therefore, we conclude that if the management discretion to call the Grievor into work is subject to review by this Board on the basis of whether or not it was fa~r ' and reasonable, we would conclude that it was. If the situation is considered to.be one of a disciplinary nature, then we would conclude that such suspension was proper and for just cause within the principles outlined in the decisions to which we were referred. The grievance is, therefore, dismissed. DATED this 13thday of January: 1988. Ross L. Kennedy, Mem er /L dA- U' '( Addendum G. A. Na:rr~.Que I. Cowan,Member ~ At tached) - 'i. ADDENDUM Your Draft Award dated December 8, 1987 was received by me December 15, 1987. Ms. Leslie McIntosh Counsel for the Grievor sent me copies of Fraser V. Public Service Staff Relations Board 1985. I did not find this argument too helpful. The Fraser case involved Dismissal and involved Public Criticism of Metrification in Revenue Canada. Again the Grievor was a full employee of Revenue Canada and had ten years service. She was aLso a Supervisor or at least Supervised four to six Auditors. If in the Fraser case there was a suspension pending further examination of a dispute, one would have expected her to receive full salary and benefits until the dispute was solved because she was a full time employee. In the Whelan case - this is a Contract with a maximum of 1000 hours no minimum quoted, and the employment reference "oQ an as required basis". This equally was not a "Criticismll problem, but one of Fraud. In July of 1986 she was charged with having property in her possession. At that time she Was under Contract and the telephone call from Mr. Thompson advising her she would not be called to work while her charge was pending and did not mention she was Suspended or Laid-off. The letter of July 17 and July 29 merely confirmed the telephone call of July ~lth. I believe this approach satisfied that part of their Contract. The letter dated September 23, 1986 written to the Grievor, stating the Grievance was denied because llTime Limit had elapsed". Also, the lettf!cr to the Grievor dated November 17, 1986 from Mr. Jackson, suggest there may be other reasons for a Grievance or other avenues to explore concerning unjust cause~ However, such determination must be made by the Grievor and her Advisors. Under the present facts or evidence presented I concur and support the view the Grievance be dismissed. ~~ Gordon Nabi