HomeMy WebLinkAbout1982-0031.Weisenberg.82-12-28Betw
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN E.MPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Befol
For tevor: .~
For lloyer:
Heari
OPSEU (Mark Weisenberg) Grievor
- And -
The Crown in Right of Ontario
(Ministry of Correctional
Services) Employer
P.G. Barton
B. Fishbein
W.A. Lobraico
Vice Chairman
Member
Member
M. Pratt
Grievance Officer Ontario Public Service Employees Union
L.M. Macintosh, Counsel
Crown Law Office Civil Ministry of the Attorney General
June 8, 1982
October 8, 1982
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AWARD
AGREED STATEMENT OF FACTS
1. The employer, the Crownin Right of Ontario, as
represented by.. the Ministry of Correctional Services, operates
the Ottawa-Careleton Detention Centre, which is a correctional
~institution established under the Ministry of Correctional
Services Act, R.S.O. 1980, Chapter 275.
2. Mark David Weisenbergapplied to the employer for
employment as a Correctional Officer in an application form
dated August 13, 1979.
3. Mr. Weisenberg was hired by the employer as casual
or unclassified staff to perform the job of Correctional-
Officer at the Ottawa-Carleton Detention Centre commencing
September 17, 1979.
4. Mr. Weisenberg applied for full-time employment at
the Ottawa-Carleton Detention Centre in. an application dated
-October 3, 1980.
5. Mr. Weisenberg was appointed by the employer to the
probationary staff of the Ottawa-Carleton Detention Centre as
a Correctional Officer-l, effective November 10, 1980.
6. Mr. Weisenberg's performance in the probationary,position
of Correctional Officer 1 was assessed to be."satisfactory" and
he was recommended for appointment to regular staff and for a
salary increase, in a formal Appraisal Report,.dated September
4, 1981.
. J
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7. Mr. Weisenberg received notice in a letter dated
October 22, 1981 from Superintendent Duncan,that Superintendent
Duncan had "concluded that (Mr. Weisenberg was) presently
unsuited to meet the requirements of the position of Correctional
Officer" and that accordingly, Superintendent Duncan had decided
"to release (Mr. Weisenberg) from employment effective October
30th; 1981, in accordance with Section 22(5) of the Public
Service Act".
8. The authority to release from employment during the
first year of employment for failure to meet the requirements
of the position, under Section 22(5) of the Public Services Act,
was delegated to.Superintendents of Institutions by the (then)
Deputy Minister, G. R. Thompson, with the consent in writing of
'the (then) Minister of Correctional Services, in a written
delegation dated,the 14th day of February, 1977.
9. The authority to dismiss for cause, under Section
22(3) of the Public Service Act was similarly delegated to
Superintendents of Institutions.
10. Mr. J. J. Duncan, the Superintendent of the Ottawa-
Carleton Detention Centre, is a Superintendent of an Institution.
11: In a Gr~ievance Form dated October 26, 1981, Mr.
Weisenberg stated, "I grieve under sec.17.2c of CECBA that I
have been dismissed without just cause". (SIC) The Grievance
Form was received by the employer on October 27, 1981.
12. Mr. Weisenberg is represented by Local NO. 41
Ontario Public Service-Employees Union.
.l of the
. . I’
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13.
There is a Collective Agreement between the Ontario
Public Service Employees Union and the Crown in right of
Ontario, as represented by Management Board of Cabinet,
with respect to working conditions and employee benefits,
for the period from January 1, 1980 to December 31, 1981.
14. In accordance with Article 27 of the said Collective
Agreement, Mr. Weisenberg's grievance was submitted to a
designee of the Deputy Minister,'.Mr. Sydney Shoom, and a
meeting was held on December 2, 1981. The time limit for the
designee to notify the grievor of the decision was waived
and,a decision was finally released on January 4, 1982.
15. In a letter dated January 4, 1982, Mr. Shoom advised
Mr. Weisenberg that Mr. Shoom was "satisfied that the decision
of Superintendent J. .J. Duncan, Ottawa-Carleton Detention Centre
to release you from employment was not disciplinary in nature,
but, rather a legitimate release in accordance with Section
22(S) of the Public Service Act $or the failure on your part
to meet the requirements of the position of correctional officer". .~1,
The grievance was denied. [END OF AGREED.~STATEMENT]
By way of additional factsit should be noted that
the Grievor at the time of his leaving the institution was one
of seventy-five correctional officers. The Ottawa-Carleton I~,
~Detention Centre is a centre which houses inmates at all levels
of security from minimum to supermaximum. In the area of
maximum security there are four wings radiating out in the
shape of an X from a central console control~area which is
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operated by one officer. All correctional officers take a
turn at operating the central security console. Naturally
being a correctional institution one of the major problems
and one of the major concerns of the staff is that of security.
Oral evidence given at the hearing indicated that
the grievor was a first rate employee as a casual. employee
and was handling his job~without any problem until early
in October of 1981. On October@, 1981 at 9:00 a.m. he called
Eric Thornton, the Senior Assistant Superintendent and told
him that he was going to attend a seminar given in an Ottawa
hotel on how to deal with problems,of stress. Later in the
day he also called Thornton again and sounded very excited
and supportive of what he had learned at the seminar.
On the morning of October 7, the grievor again
called and asked for time off from regularly scheduled work
to attend the same seminar. This was refused because normally
time off is sought at least two weeks in advance. At 11:OO
a.m. the grievor reported in for work and appeared to Mr. Thornton
to somewhat ".different". He seemed to be extremely talkative
and in a state~of high excitement. He also indicated to Mr.'
Thornton that he had occasionally felt pressure when operating
control modules and was concerned that he might press the green
release buttons. Thiswas of some concern to Mr. Thornton
because the green buttons opened various locks in the institution.
Mr. Thornton arranged for the grievor to work in a non-Security
area during the day and to see Mr. Bonta, the staff 'psychologist
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later in the afternoon.
Mr. Bonta reluctantly testified at the hearing under
subpoena and ind,icated that he did see the grievor at 2:30 p.m.
and found his behavior to be unusual. The grievor took
the balance of the day off.
The grievor was not scheduled to work on October 8
but during the day it came to the attention of persons in. the
institution that he was in so&-difficulty. Later in the day
he was committed to the Royal Ottawa Hospital where he underwent
psychiatric treatment. He came to the correctional institution
on one occasion between October 8 and October 20 but returned
to the hospital.
cheque, which On October 20 he came ~to pick up his pay
ha received, and was told that he would need a med
would be allowed back.
,ical before he C
Meanwhile members of staff of the correctional
institution had been trying unsudcessfully to get additional
medical'infonnation from the hospital concerning the grievor and
on or about October 22, 1981 decided to release the grievor. In
their view he had failed to meet the requirements of the position
because the requirements of the position..were'that a person be able
to show good judgment and handle stress. They were particularly
-concerned about the po%ibilityXof security ,problems with the
Grievor in his condition as exhibited on October 7. It was their
view therefore that.as the date of decision he was "presently
unsuited" for the position.
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Issue One:
Was the grievor released for failure to meet the
requirements of the position?
By virtue of s.22(5) of the Public Service Act a
probationary employee may be released by various individuals*
during the first year of employment. The first issue that
concerns us is whether or not the grievor was still a probationary
employee at the time of his leaving the institution. It will
be recalled from the agreed statement of fact that he worked
at the institution in the unclassified staff come September 17,
1979 until November 10, 1980. In his submissions~f~bn behalf of
the 'grievor.Mr. Pratt urged us to reject the Dorothy Johnston
case (292/79 J.F.W. Weatherill, Chairman).In that case of course
'the grievor had been a Crown employee and a public servant for
some three. years although in the~classified service for less
than one year. Relying on s.9 of the Public Service Act which
states that a person who is appointed to a position in the .-..s
public service for a specified period ceases to be a public.
servant at the expiration of that period, the Chairman indicated
that at the end of the period in the unclassified staff the
grievor had ceased to be a public servant and because the word
"employmentl'usedin s.22(5)means a period of current employment, ,.
only employment as a member of,the classified staff counted as
time. Although the reasons given by the Chairman in that case
might seem to be a bit precious, we agree with the principle
and policy behind the decision and see no reason to overturn it
*see page 10 "Issue Three"
. .
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despite the forceful dissent of Ms. E. McIntyre. Thus as far
as the grievor in this matter is concerned we are satisfied
that he was within his first year of employment.
Issue Two:
Is what occurred areleaseor a dismissal for cause?
It is reasonably well-known that our only authority to deal
with this matter can be found in s.18.2(c) of the Crown Employees
Collective Bargaining Act. Probationary employees have no right
to grieve discharge under the relevant Collective Agreement and
therefore their only right to grieve it is a statutory one. It
has been stated in numerous Grievance Settlement Board cases,
that if then employer acting bona fide releases the employee for --
the reasons set out in s.22(5) of the Public Service Act and it
is not a release for a disciplinary matter which might then be
characterized as a dismissal for cause, this Board is powerless
to intervene. It has been held in the case of Ekholm ~336/80,
that the burden of proving a release as opposed to a dismissal
rests on the employer.
We are satisfied that the employer acted bona fide .and -- ;..
at the time of the action taken, the employer had good reason to
be concerned about whether or not the grievor was then suited
for the job. In particular we refer to the concerns of the employer,
about security and the-ability of the gr~ievor at that&@e-to ~-
handle stress. Inhis able argument, Mr. Pratt referred to the
fact that the grievor missed only one day of scheduled work in
Octoberof 1981. This incident was referred to in the.letter
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of October 22 releasing the grievor but the relevant paragraph
seems to us to be the one which.reads as follows.:
"Responsibilities .of a correctional ..
officer are both demanding and stressful.
Based on your recent behavior in regard
to'the above occurrences; as well as
other information available to me, I
have concluded that you are presently
unsuited to meet the requirements of
the position . . . .'I
As stated by Professor R. J. Roberts, Vice Chairman in Keane
596/ai at p.13, "the word"failure"as used in s.22(5) of the
Dublic Service Act encompasses both voluntary and involuntary
deficiencies such as attitude and capacity." He therefore'
suggestedthat failure to meet in an acceptable way the job
requirements for a particular position,,can form the basis for
a release,whether or not the griever might have been able to
correct his or her attitude or behavior.
In finding that the grievor was properly released,
we feel that we should add that the employer might well have
considered other alternatives. It is clear that at one time.a
of absence for him was contemplated and it is also clear ~that
at the time the decision was made, about October 22, 1981, the
leave
employer did not have up-to-date medical information concerning
the prognosis of the grievor. We realize that the employer
was under the pressures of time, -. given the effective date of
the end of the probationary period November 10, 1981, but some
additional inquiries and consideration might have been made.
‘,
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Issue Three: '
The final argument to be addressed is one that has
surfaced in other cases concerning this Ministry,that is,the
question of delegation. It 'will be recalled from the agreed
statement of fact that there was a written delegation to
superintendents of institutions by the then Deputy Minister,
G. R. Thompson, with consent in writing of the then Minister
of Correctional Services, A.~K. Meen. This was on February
14, 1977. A subsequent delegation occurred on October 5, 1977
in which the then Minister, Frank Drea consented to
delegation by the then Deputy Minister, G. R. Thompson who
purported to delegate authority under s.2215)to the following
persons or classes of persons:
Assistant Deputy Ministers;
Executive Directors;
Branch Directors:
Branch Administrators;
a,+:' -~ pi >,'# Superintendents of.'Institutions;
Supervising Probation: and
Parole Officers. ,*.+,:..
It was argued by the union that the Minister of
Correctional Services on October 22, 1981 was Mr. N. Leluk and ,~,,
that the Deputy Minister who is authorized to delegate certain
powers with the.consent of the Minister :as of that date was i
Mr. A. G. Campbell. Thus it was argued that when Superintendent
Duncan, purported to release the grievor on October 22,.1981,
'.
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the delegation of authority to him was invalid.
The power to delegate the authority to re lease under
s.22(5),is found in s.23 of the Public Service Act.
as follows:
It reads
"Section 23 ss.lY'with the consent in writing
of his Minister a Deputy Minister may delegate
in writing any of his powers under this Act
to any public servant or any class thereof
in his department."
In the relevant delegation of -October 5, 1977, the signature
of the then Minister Frank Drea appears above a line indicating
as follows: "Ministe$?of Correctional Services". Ris consent is
in the following terms; ~"1 hereby consent to G. R. Thompson,
Deputy Minister delegating the above referred to powers and _ :'
duties to the public servants or class thereof described in
this and preceding pages."
The relevant question here is whether or not the
delegations and consents are ones which must be exercised by
named persons in the sense that the relevant legislation
contemplates their personally exercising a discretion, or whether
the necessary consents and delegation are 'acts oft the ,,
office of Minister and Deputy Minister and not of the individual
Ministers or Deputy Ministers. If it were found that the acts
were acts. of the office and not of the individuals, it would follow
that theirforce -' continued until changed. ~This would be so
even though the individuals occupying the various offices had
changed,as has occurred in this case.
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_.
We should make it reasonably clear what we are not
deciding here. It has not been argued that on October 5, 19.77,
the then Minister did not properly consent to the delegation
by the then Deputy Minister.. It is also~not argued that the
then Deputy Minister granted powers to public servants or classes
thereof in his department which were prohibited. Indeed the
language of s.23 does not prohibit delegation to any particular
public servant or class therebf.~.
. . What does seem to be in issue here is whether or not .,.
the powers conferred on October 5, 1977 and the consent given
on that date by the Minister can continue to be exercised by
any of the persons occupying the class of positions set out in
the above mentioned delegation, i.e., superintendents, probation
-officers, etc. The delegation in its terms clearly contemplates
that people occupying those various named offices for the time
being may exercise the powers.
It seems to us that the case of Putnoki and Public
Service Grievance Board (1975),7 O.R. (2d) 621 (Division Court
Ontario) is a complete answer to the submissions of the union.
In that case the grievor had been employed by the Ministry of
Community and Social Services of Ontario as a rehabilitation
officer. He was suspended and subsequently dismissed. on October
17, 1972 pursuant to the Public SeNiCkACt. '; Two arguments were
raised by him before the Divisional Court. The first concerned
whether or not the proper delegation had occurred. In that case
the Minister, T. L. Wells., .had consented to delegation of authority
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by the Deputy Minister, Mr. Borczak, to certain classes of
public servants. At the time Mr. Putnoki was dismissed, the
person who dismissed him was within the classification stated
in the delegation, and the Deputy Minister was still Mr..Borczak.
The Minister had changed however,and it was argued that the,
consent given by Mr. Wells had ceased to be effective and
since a similar consent had not been given by the new.Minlster,
the Deputy Minister had no-authority to delegate power.
On this point the Divisional Court said:
"We have considered this point carefully.
and have come to the conclusion that it
is not sound. The consent given by the
previous Minister continued to be valid
until revoked or varied by the incoming
Minister. While it is undoubtedly good
practice that a new Minister should, immediately upon assuming office, ensure
that he.exercises his. authority in respect
of all necessary consents and delegations
under the statutes which he admini.sters,
previously existing authorities granted
or conferred by his predecessor continue
until such time as he is able to put his
mind to endorsing or otherwise disposing
of them. .To hold otherwise would be to
cause great difficulties in the administration.
of statutes during the.period of transition
in the normal transfer of portfolios from
one Minister to another. Such acts represent
the authority of the office, not of the
individual and they do not cease to have
effect because the incumbent changes,
unless the statute otherwise declares."
What the Divisional Court clearly held was that as
far as the consent required was concerned, a previously qiven
consent continued and did not cease to have effect merely because
the person in the individual office changed. It is argued by
the union that in the instant case; the rationaleof Putnoki
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does not protect a stale delegation by the Deputy Minister. It
only protects a stale consent. It is argued that the authority
to delegate was given to G. R. Thompson,not merely to his office
and because he was expressly named in the consent which gives
him.the authority, the authority must lapse upon his resignation.
We suggest that the argumentlthat various Ministers
and Deputy Ministers have occupied the offices since October
5, 1977, is something of a red- herring. We do not have new
Deputy Ministers purporting to delegate on the basis of old
consents or new consents to old delegations to old Deputy
Ministers. What we have is a valid consent and a valid delegation
dated October 5, 1977 and the relevant question is whether that
continues in force. None of the new Ministers or Deputy Ministers
have purported to exercise any of their authority under s.23 "
of the Public Service Acts. The relevant part of Putnoki seems
to be the last sentence of the above mentioned quote taken from
the case. It held that acts representing the authority of the
office rather than of the 'individual continue to have effect
even though the encumbent changes. It seems to us that logically
that same proposition applies,not just to the position of Minister
within s.23 but also to Deputy Minister therein. The reason given
for the position, administrative efficiency, while not alwaysa
happy~reason, ~does seem equally applicible. It is true that the
case refers to administrative problems in transition, but the
Divisional Court does indicate that the power continues until
altered. No time limit is stated. Thus in this case even though
there is a new Deputy Minister and there have been two different
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Ministers, powers conferred upon classes of servants including
the superintendent in question here, Mr. Duncan, in October
of 1977, continue.
It was argued that to accept the employer proposition
would be to eliminate the safeguard set out in the Act which
requires the function of dismissal or release to be performed
by a Deputy Minister unless he delegates that authority to others.
Looking over the various delegations from other years, it is
clear that the authority under s.22(5)to release ins the first
year of employment has consistently been delegated to a number
of classes of persons. In 1972 for example the following persons
or classes of persons were authorized under s.22(5) to release
during the first year of employment:
"Assistant Deputy Ministers, Executive
Directors, Branch Administrators, Branch
Directors, Regional Directors, Probation
and After-Care."
+: .~
In the delegation of December 16, 1974, the same class
of persons were authorized to exercise the power. In addition
. ~lt was stated that designees .were required to consult with the
Director of Personnel or Assistant Director of'Personne1 as
was presently the policy. This same class of persons and the
same procedures were involved in the delegation of February
1, 1975. In the delegation of 13 November 1975, the situation ,,.
was continued unchanged. In a delegation of February 14, 1977,
the list of'persons who could exercise the authority under s.22(5)
was as follows:
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"Assistant Deputy Minister<
Executive Directors;
Branch Directors;..
Branch Administrators;
Superintendents of Institutions;
Supervising Probation and Parole/After-Care Officers.
It can be seen that this list is somewhat larger
than the previous lists and it'isthe~same list as appears in
the relevant delegation in this case, October 5, 1977. Thus it
appears that for a number of years, the so-called safeguard that
the Deputy Minister will exercise the power has not existed;
The'relevant question should be whether the power might be
exercised without proper safeguards. The procedures that have
been set up involve the person named&in the delegation consulting ,.
with personnel officers and. they also involve,a right to a full
hearing before the Grievance Settlement Board,which includes
investigation into the question of whether or not there was a
be fide release. Such factors as bad faith or discrimination
against which safeguards ar.e normally set up, can be identified
in the process and thus some safeguards do exist. Indeed in this
case the designee of the Deputy Minister, Mr. Shoom, reviewed the
case before it reached this Board.
It was arguedby- the employer'.in the alternative that
even if the delegation was improper, the fact that a hearing
was held before the Grievance Settlement Board cured the defect. .
Support for this proposition was sought in the case of McKenna
in the Divisional Court GSB 93/81. In that case two arguments
were raised, the first being that there was no delegation of
.
i !
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authority and the second being that no hearing had been held
into the dismissal as required by the then regulations,' The
Divisional Court addressed.itself to the question of a hearing
and decided that, citing Putnoki:
"Once the.Deputy Minister has purported
to dismiss the employee, even if he has
not complied with s.31(1), when he has
given then 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 him. It is then subject
to the Board's review and there all the
issues on the merits of the employee's case
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. hY defect in the hearing under s.31(2) is cured
by the hearing before the Board."
Although,what we say here is by way of dicta, the
reasons.?zited therein seem to be a reference to the fact that
a subsequent hearing can cure~the absence of a previous one
as required under the Regulations and do not seem to address
the question of whether a hearing can cure an invalid delegation.
Can it be said that-a person who makes a decision described as
a "proposal or tentative decision" without any authority can
have his ulta vires act subsequently validated by a hearing?
I have considerable doubts about this and fortunately we are not
required to decide it in this matter. I~" ~'
7: 5000
6:3360
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In the result the grievance is dismissed.
DATED AT London, Ontario
this 25 P- day of December, 1982.
I
. . ..-
Vice-Chairman
"I dissent" (Dissent to follow)
B. Fishbein
Member
W.A. Lobraico
Member