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HomeMy WebLinkAbout1980-0265.McKay.81-01-21 Decision160 DUNDAS STREET WEST, TORONTO. ONTARIO. M5G 1Z8 -SUITE 2100 Between : Before: For the Grievor: For the Employer: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD 265/80 TELEPHONE: 416/596- 0688 Mr. Bruce McKay (Grievor and The Crown in Right of Ontario Ministry of Northern Affairs ( Em pl o ye r ) W. 6. Rayner . Vi ce-C ha i rman M. Perrin Member H. Stapleton Member S. Goudge, Counsel Cameron, Brewi n , Scott Barristers & Solicitors D. Brown, Counsel J. Zarudny, Counsel Crown Law Office Ministry of the Attorney General Hear i ng: Toronto, Ontario December 16, 1980 2. In this case the grievor claims that he has been threatened with dismissal without just cause and has grieved that alleged threat. The settlement required in the grievance is that the opinion of the Ministry as contained in a letter dated March 14, 1980 to the grievor regarding his activity in the Thunder Bay- Nipigon New Demoncratic Party Riding Association be rescinded, thereby removing the threat of dismissal. At the commencement of the hearing Mr. Brown, on behalf of the Employer raised some preliminary objections. Before the Board deals with those objections, it wishes to outline in a cursory manner certain facts that are not in dispute, At the present time the grievor is no longer an employee of the Crown in Right of Ontario. Queen's University. He is a law student at However, at the time that he filed his grievance he was an employee. The grievor started work with the Provincial Government in 1969. Northern Affairs in the Spring of 1978. He ended up in Thunder Bay working in the Department of In December of 1978, the grievor was nominated as the Federal candidate of the N.D.P. party in the Thunder Bay-Nipigon Riding, He requested a leave-of-absence on February 26, 1979 'and this leave-of-absence was granted until May 19, 1979, the date of the election. The grievor was unsuccessful in the election and returned to work on May 20, 1979. 3. On October 25, 1979, the grievor was elected as President of the Thunder Bay-Nipigon N.D.P. Riding Association. On November 2, 1979, Mr, Stuart , the grievor's Supervisor, informed him that his election to the presidency of the riding was contrary to sections of the Public Service Act, R.S.0, 1970, c, 386 as amended. put its position in writing and this was done on the same date. The grievor asked that the Ministry In a memo to the grievor, Mr. Stewart stated: "Further to our discussion this morning concerning your election on October 25, 1979, to the position of President of the Thunder Bay-Nipigon N.D.P. Riding Association, in order to full assess your' position with respect to any potential conflict with sections 14 and 16 of the Public Service Act, it will be necessary for you to provide a complete indication, in writing, of the functions and duties of your new position." The grievor simply replied that there was no conflict between his position and the provisions of the Public Service Act. The grievor testified that there was a meeting held with Mr. Lees and Mr. Stuart on December 20, 1979. At that time the three men examined the provisions of the Public Service Act. again but no conclusions were reached. 4. Public events then overtook developments in the grievor's office. was nominated as the N.D.P. candidate in the riding. 2nd he went on leave until February 18th, 1980, the date of the election. A new election was called and the grievor again On January The grievor was again unsuccessful. The grievor returned to work but was still the President of the Local Riding Association. The grievor said that he was told that if he continued as President of the Riding Association his employment would be terminated under section 16 of the Act. The grievor asked that this position be put in writing and a letter dated March 14, 1980 was sent to him from Mr. Lees. That letter reads as follows: ''Further to our previous correspondence on this matter and our discussion of March 10, 1980, this is to advise that the Ministry is of the opinion that by holding the position of President of the Thunder Bay-Nipigon N.D.P. Riding Association, you are acting in a manner contrary to the spirit and general intent of sections 11 to I5 inclusive of the Public Service Act of Ontario, and more specifically, it is the opinion of the Ministry that you are in contra- vention of section 14 of the Act. contravention of this section is deemed to be sufficient for dismissal. '' As you know, Accordingly, it seems to me that you have two options to consider: executive of the Riding Association, or resigning from your position with the Ministry. you will give this matter very serious considerati and I will look forward to receiving a statement o your intentions no later than March 25, 1980." either resigning from the I am sure on f On March 25th the grievor resigned as President of 5. the Riding Association. However, it is clear that the grievor resigned under protest. In his letter to the Riding Association he indicated that he would be attempting to clarify the matter by way of a grievance. of March, 1980. The grievor filed his grievance on the 25th The Board has quoted the letter of March 10th verbatim because it is this letter that triggered the grievance. It is also this letter that must be considered when one turns to the prelimary objections raised by Mr. Brown. Mr. Brown argued that the Board lacked jurisdiction to hear the grievance as the grievance alleged a threat of dismissal without just cause. of the Ministry. signed from public service prior to the hearing of the matter, the grievance has been extinguished. There is no question of monetary damages in issue and thus, the whole matter was rendered moot. The relief asked was a rescinding of the opinion * Mr. Brown argued that since the grievor had re- Mr. Brown also argued that if the Union is considered to be a party, the Union could have no higher position than the grievor. If the grievor could not proceed, the Union could not proceed. In his view, the Union should have brought a policy grievance under Article 27 of the Collective Agreement if all it sought was a declaration as to the rights of employees under the Public Service Act. 6. Coupled with this submission was Mr. Brown's position that the relief sought is no longer relevant. If the relief sought was the removal of the threat of dismissal, since the grievor is no longer an employee, he could no longer be dismissed. Thus, the relief sought could not be granted in any event. Finally, Mr. Brown argued that the opinion of the Ministry did not amount to discipline. hence, to entertain the grievance as a disciplinary matter. support of this position he referred the Board to an earlier decision of the Grievance Settlement Board, #108/77 the grievance of Ms. Doreen Naik. There was no jurisdiction In In response to the preliminary matter, Mr. Goudge argued that the matter is disciplinary in nature. He said that the letter from the Ministry to the grievor clearly offers the grievor two choices, resign or be fired. action taken by the grievor initially, that is, his obedience to the direction of the Ministry and the filing of the grievance He suggested that the was a proper reaction. labour relation principles. Such a reaction supports orderly and sound If the matter is considered to be disciplinary in nature, Mr. Goudge says that the Board can determine whether the order given by the Ministry was without just cause. he says that is the real matter in dispute. Indeed, Alternatively, Mr. Goudge says if the matter is not disciplinary, that is if the letter cannot be treated as a warning, then, the matter can be entertained by the Board on the basis that 7. the order given by the Ministry was not an order that the grievor had to obey. hypothetical or academic simply because the grievor has resigned. The Union has a real interest in determining whether the Ministry is correct in its position that the holding of the office of the presidency of a Riding Association contravenes the provisions of the Public Service Act. Mr. Goudge points out that the matter is far from Mr. Goudge also argued that under section 17 of the Crown Employees Collective Bargaining Act, an individual employee files a grievance, but under: section 18 of the Act, the Union is a party and the Union can proceed with the grievance. The Board does not feel it necessary to comment on the latter position put forward by Mr. Goudge, but it should be noted that the matter commenced under section 18 of the Act. After hearing argument on the preliminary objection raised by the Ministry, the Board proceeded to hear evidence on the merits of the case. inclination was to dismiss the preliminary objection but that we would need some time to determine the matter finally. formally reserved on the preliminary objection. We advised both counsel at that time that our Thus, we After taking the necessary time to consider the matter, we are of the opinion that the preliminary objection should be dismissed. 8. In view of our disposition of the matter, the Board does not have to determine whether the letter to the grievor that triggered the grievance is disciplinary in nature. impression would seem to indicate that it was not disciplinary and to that extent, the submissions put forward by Mr. Brown may be An initial correct. However, there is no doubt in the Board's mind that the letter given to the grievor in March of 1980 was a direction from the Ministry. It was, in effect, an order. The grievor was told that he was to resign from the presidency or suffer severe consequences. In most cases, and indeed, perhaps in almost every case, the Union has little legitimate interest in pursuing a discharge ary grievance once the employee has left the employ of the employer and damages are not in issue. There are innumerable cases to support such a conclusion. However, even in disciplinary cases there may be the odd time when the Union does have a legitimate interest in pursuing the matter. case as a disciplinary matter. one which questions the lawfulness When viewed in this manner, it would appear obvious that the Union has a legitimate and continuing interest in the determination of that issue. the Ministry, does not lessen that legitimate interest. issue between the parties is whether the Ministry could require an employee to chose between the presidency of a Riding Association and his or her job. or disciplin- However, we do not look upon this Rather, we look upon this case as an order given to the grievor. of The fact that the grievor has since left the employ of The real It is well established that arbitration procedures should be directed to determining the real issue between the parties. To give effect to the preliminary objection raised by the Employer 9. would clearly thwart that objective. Accordingly, we are of the opinion that we do have jurisdiction to entertain the matter on the basis that the ‘Union has a legitimate interest in questioning the propriety of the order given to the grievor, notwithstanding that the grievor has since left the employ of the Ministry. Mr.. Zarudny conducted an extensive cross-examination of the grievor with respect to his duties as President of the Riding Association. elicit from the grievor admissions that these duties would require In this .cross-examination he attempted to the grievor to breach one or several provisions of the Public Service Act. In our view, this attempt by Mr. Zarudny did not succeed. The grievor testified that he was well aware of the provisions of the Public Service Act and made it a point that he not engage in any activities that are specifically prohibited by the Act. in his testimony that he had a wide discretion in terms of what he did or did not do as President of the Riding Association and that He indicated he exercised that discretion in a fashion so as to not engage in prohibited activities. The particular provisions of the Public Service Act referred to are to be found in sections 12 to 16 of the Act both inclusive. Those sections read : 10. 12.---(1) Except during a leave of absence granted under subsection 2, a. Crown employee shall not, (a) be a candidate in a provincial or federal election or serve as an elected representative in the legis lature of any province or in the Parliament of Canada ; (b) solicit funds for a provincial or federal political (c) associate his position in the service of thc Crown party or candidate; or with any political activity. (2) Any Crown employee, other than a deputy minister or any other Crown employee in a position or classification designated in the regulations under clause u of subsection 1 of section 29, who proposes to become a candidate in a provincial or federal election shall apply through his minister to the Lieutenant Governor in Council for leave of absence without pay for a period, (a) not longer than that commencing on the day on which the writ for the election is issued and ending on polling day ; and (b) not shorter than that commcricing on thc day provided by statute for the nomination of candidates and ending on polling day, and every such application shall be granted. . (3) \\’here a Crown employee who is a candidate in a provincial or federal election is elected, he shall forthwith resign his position as a Crown employce. (4) Where a Crown employee who has resigned under subsection 3, (a) ceases to be an elected political representative within five years of the resignation; and (b) applies lor reappointment to his former position or to another position in thc service of the Crown for which he is qualified within three months of ceasing to be an elected political repre- sent at i ve , he shall be reappointed to the position upon its next becoming vacant. (5) Where a Crown employce has been granted leave of absence under subsection 2 and was not elected.-or resigned his position under subsection 3 and was reappointed under subsection 4. the period cf the leave of absence nr resignation shall not be computed in determining thje Iength of his service for any purpose and the service before and after such period shall be dcemcd to be continuous for all purposes R.S.O. 1970 c. 386 s 12. 13.--(1) A civil servant shall not during a provincial or federal election canvas on behalf of a candidate in the election (2) Notwithstanding subsection 1, R deputy minister or 'any other Crown employee in a position or classification designated in the regulations under clause u oi subscction 1 of section 29 shall not at any time canvass on bchalf of or otherwise actively work in support of R provincial or federal political party or candidate. R.S.O. 1970, c. 386, s: 13. 14. Except during a Ieave of absence granted under subsection 2 of section 12, a civil servant shall not at any time speak in public or express views in writing fnr distribution to the public on any matter that forms part of the platform of a provincial or federal political party. R.S.O. 1970,~. 386,s. 14. 15 A Crown. employee shall not during working hours engage in any activity for or on behalf of a provincial or federal political party. R.S.O. 1970, c. 386, s. 15. 16 A contravention of section 11 12. 13. 14 or 15 R.S.0. shall be deemed to be sufficient cause for dismissal. 1970, c. 386, s. 16. In his argument, Mr. Goudge said that the real issue is whether the mere holding of the office of President, per se, contravened the provisions of the Public Service Act. Indeed, when one examines the argument of Mr. Zarudny it would appear that that is the real issue between the parties. Mr. Zarudny argued that it was reasonable for the Employer to conclude that the grievor would engage in certain activities as President that wauld perforce violate the Act. He said at the very least, the grievor had to establish to the Employer's satisfaction that it would be impossible for him to violate the provisions of the Act. He pointed out that the Public Service Act is concerned with the conduct of public servants in political matters. holding of the office, and his public employment, were in contra- The grievor's diction, one to another, insofar as the spirit of the Act is con- cerned . 12. Mr. Goudge argued that the grievor did not violate any specific provision of the Act by holding office of the President. He said further that the holding of the office, by itself, did not inherently give rise to a violation of the Act. that in many cases, and perhaps even in the usual case, the holding Mr. Goudge admitted of such an office would lead to a violation of the Act. But he did not agree that the holding of the office would invariably lead to a violation of a specific provision of the Act. He said that the grievor's testimony clearly established that the grievor was aware of the provisions of the Act, was aware of the duties that he could undertake and could not undertake as President of the Riding Association and hence, the Board could not conclude that the holding of the office in this particular case, amounted to a violation of the Act. Mr. Goudge pointed out that the only office regulated as an office, under the Act, is that of candidate. He said the Act 'prohibits certain activities but that that prohibition is directed to all civil servants. not denied simply to those civil servants who hold a position in a Those prohibited activities are local Riding Association. Mr. Goudge argued that the Act attempts to preserve the public appearance of neutrality of the civil service. However, the Act does not prevent an employee from engaging in political activity that is not public in nature. 13. After considering arguments of both counsel, the Board is of the opinion that the grievance should succeed. 16 of the Act states that a contravention of sections 11, 12, 13, 14 or 15 shall be deemed to be sufficient cause for dismissal. Section That wording is quite clear. vention of the earlier sections must take place. not state that a contravention of the spirit of the Act shall be deemed to be sufficient cause for dismissal. Before section 16 can operate, a contra- Section 16 does Moreover, it is the Board's view that the Act should be read with some care. There is no doubt that the Act limits in a fundamental fashion, the political activity of civil servants. To that extent, the Act curtails certain basic rights of the civil servant as a citizen of this country. of the Act is not in issue before us, and our comments should not be taken to imply, in any way, any conclusions with respect to the constitutionality of the Act. However, our comments are directed as The constitutionality to how the Act should be read. In our view, the sections of the Act should be read literally and should not be given an expanded meaning which would be required if Mr. Zarudny's position is accepted. We agree with Mr. Goudge when he says that the Act attempts to preserve the public appearance and neutrality by the civil service. The mere fact that a civil servant holds the office of presidency of a Riding Association does not, by itself, destroy that appearance. A civil servant, even though not holding any particular office in a Riding Association, may be very. active in that Riding Association, However, until that person violates a specific provisions of the Act, 14. one cannot say that the Act precludes the person from that activity. Although it may be very likely that the holding of such an office could lead to a violation of the Act, the evidence of the grievor establishes that the holding of the office does not in- variably lead to such a violation. succeed in its position, the Board must come to a conclusion that the holding of the office would invariably lead to a violation of the Act, and this we cannot do. In our view, for the Ministry to Moreover, the Board cannot conclude that the onus is on the grievor to establish that he or she, in any particular case, has not violated the Act. 'Although we recognize there is some difficulty on the part of the Employer in being able to detect violations, that difficultly exists whether the civil servant holds office in the Riding Association or whether the civil servant holds no position in the Riding Association. Indeed, it may become some- what easier for the Employer to detect prohibited activity on the part of the President of an Association than in the case of an employee who holds no position in the Riding Association. For these reasons then we are of the view that the 15. grievance should succeed. st DATED at London, Ontario, this 21 day of January, 1981. W. B.. Rayder, Vice-Chairman I concur/- * I concur/ Ms. M. Perrin, Member H. Stapleton, Member