HomeMy WebLinkAbout1982-0496.Varin.83-04-19I-d
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.,
IN THE WXTTER OF AN ARBITR%.TICN
under
THE CROWJ EMPLOYEES COLiECTIVI: BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Setwee~n: OPSZU (Joseph Varin)
Griever
- and -
The Crowin in Right of Ontxio
(Ministry of Correctior.a.1 Services)
mployer
aefore : E. a. Jolliffe, Q.C. vice Chairman
P. Craven Member
G. A. Peckham Meaber
FOT the Griever: P. A. Sh&pard
Grievance Officer
Ont+rio Pubiic Service Emplosrees i'niCn
For the-Employer: M. M. E'1eish;na.n
Counsel
Crown Law Office Civil
Ministry of j%e Attorney General
Hearings : January~ 2~6, 1983
Narch 15, 1983
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DECISIOti
Mr. J.E. Varin, a Correctional Officer who served at
the Don Jail from January, 1977, to November, 1978, has grieved
against a "Notice of Release" dated July 23, 1982 (Exhibit 3)
said to have been given under Subsection 4 of Section 22 in the
Public Service. Act. .That Subsection is as follows:
A deputy minister may release~from employment in
accordance with the regulations any public servant
where he considers.it necessary by reason of
shortage of mrk or funds or the abolition of a
pcsytion or other material change ,j.n organization.
In a letter to the griever dated August 20, 1982 (Exhibit
5) it was emphasized by Nr. P. Van tiorne, Personnel Administrator,
that "a Notice of Release is not a dismissal for cause under
;Section 22(3) of the Public Service Act." The Ministry's
position is that the griever has been released because there is
no work available "for which he is suitable." On behalf of the
grievor it has been urged that subsection (4) of Section 22 in-
thei Public Service Act is a "lay-off" provision, designed to
facilitate release by reason of short.age of work or funds or the
abolition of the position or a reorganization within the service
The griever's claim, as stated by counsel, simply is that none
of the reasons specified have any application to his case: there
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is no shortage of work or funds for Correctional Officers, the
position has not been abolished and there has been no material
change in the organization of .the Plinistry or the ~Don Jail.
It is necessary to review the history of the griever's
employment and his relations with the Ministry.
Hired by Mr. Van Horne, the griever became a Correct-
ional Officer at the Don Jail on January 10, 1977, and completed
his probationary period one year later. No doubt there were
performance appraisals, but they are no.t ifi evidence.~
On or about November 12, 1978, theie occurred an _,
incident at the Do6 Jail abou~t which the evidence is not very
satisfactory. The grievor Himself did~ not testify'at the hearing
of this case. Nor did any other person who was present at the
time of the incident. Thus the evidence is pure hearsay, which ..~.
we have accepted with strong reservations. It is clear, however,
that the grievor was injured, a-2' the Work,men's Compensation 3oard
subsequently recognized.
According to Mr.~~Van tiorne, the qrievor remained after
his shift on or about November 12, 1978; to participate in a
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training exercise. Correctional officers (in the staff
lunch room) simulated a riot, some of them holding batons and
others (such as the griever) playing the role of inmates. hYr.
Van Home states that "nobody was.to be attacked," which does not
correspond with conditions in an actual riot. Nevertheless - .~ (according to Mr. Van Fiorne's version) the griever attempted to
seize another officer's baton. A scuffie ensued and "they ended
up on the floor."
:- .,~._.
The griever was sent to the "medical centre/ where a
zurse reported _ "lacerations and bruises." The griever has not
been at work since that date, although he attempted to return in
March.or April of 1982, when he was informed by Mr. Van Horne
(Exhibit 2) that "yoil are precluded from a return to this type
of an employment due to medical recommendations." .
The grievor was on Workmen's Compensation Until early :.
in 1979 when he was cut off. After six months on short-term sick
leave, he qualified for L.T.I.P.~(the long term insurance plan)
until the spring of 1982, when that too ended because the
insurance company considered him capable of working. He had
appealed the ,W.C.B. decision and was eventually-awarded a 20
per cent partial disability pension and a 25 pe,rcen: lump sum .~
to cover the arrears.
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In February, 1982, the Ministry arranged for Nr. Varin
to see-Dr. Sheldon H. Celler, a psychoioqist. The result was
summarized in a letter to the grievor from Mr. Van Horne (Exhibit
8) dated February 24, 1982, asfollows:
I have received the results of a medical examination
conducted by Dr. S. Celler &ich you recentiy attended.
Dr. Celler indicates that you are able to commence
gainful employment that would be commensurate with your
training and education. Powever, i-e stated that in his
opinion you are unable to resume them duties of a correct-
ional officer.
..~
Dr. Geller's report of February 19, 1982, is in
evidence as Exhibit il. In it he went into considerable detai
about his interview ijith the qrievor of',February 18, the tests
he administered, his "psychological assessment" of the grievor,
and finally his "Summary of Findings and Recommendations" in
which he said: ..,
In conclusion, this examination revealed that Wr. Varin
has made a partial recovery over the past two years that
would now enable him to be able to commexe some forrr of
gainful employment that .tiould 'be commensurate withy his
training and education. Eowever;on the basis of all the
available information, I feel that ~Plr. Varin is presently
unfit to resume duties as a correctional officer. Since
it has now'been Gel1 over three years since the tiXovember
.12, 1978 incident occurred, I doubt whether [Mr. Varin wiI1
ever be sufficiently fit..to.iesume duties as a correct-
ional officer. Furthermore, it is likely that Wr. Varin.
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Would feel considerably more ~mfortable if he were assigned
a position that would not reguire him to work within a
correctional facility. Snould a job not ‘be available
consistent with this mar's ducational training and work
experience, I muld recommend that efforts be made to evse
Mr. Varin to a suitable job retraining prcgramme so as to
increase his likelihood of employability.
Almost three years earlier, on i"ay i8, 1979, the
qrievors had been examined by Drs. Sweet and Geller. The latter
reported on gay 23, 1979, (Exhibit 10) as follows: -_
.Ejackground Information: The above named employee xas referred
for examination because of conflicting reports receive by the
Ministry. Specifically, Yr. Varin's Family Physician !ias
indicated that this man is not fit to return to work, however,
the WoriGoen's Ccmpnsation bard has indicated that he has
recovered sufficimtly to return to work.
Cn November 12, 1978 Yr. Varinwas involv& in an emergency
training course in riot control and reports sustaining injuries.
Clinical.Status: Fhysical examination by Cr. G. Sxeet and
psychological examination by the undersign& reveal& this
36 year old employee Who has been with the Gwexment since
January 10, 1977 to be not fit for employment.
Recommendations and Ccnclusions: m. Varin. xould not Germit
us'to contact his attending physician. Accordingly, it is
recommended that this man have his attending specialist revieij
the Workmen's tcmpnsation Board's decision regardifig his
employability.' FLrthennore,.he should not 'ce Fermitted to
return ~to work without a certificate of fitn&s from his
attending spcialist.
Examined and cross-examined as a witness, Dr. Geller
vigorously defended his assessmerits of the griever's condition
.
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and capacities in 1982. Dr. Cellar describes himself as a
"Clinical and industrial ?sychologist," certified as such in
1972, and holding +I.?.. and Ph.D.degrees from York University.
His experience includes two years at the Lakeshore Psychiatric
Hospital, after which he served from 1974 tc 1980 with the
Employee fiealth Services Br., ?!inistry of Government Services,
and he has since practised as a psychologist. He is not of
course a psychiatrist or physician. in February, 1982, he
telephoned Dr. Dennis Martin, the griever's psychiatrist, and
Dr. Martin agreed with his recommendation at that time
Nevertheless, on July 29, 1982, in a letter "to ijhom
it may concern" (Exhibit 4) Dr. Xartinexpressed. an entirely
.~ .
different view, as he did‘again in testifying before this Board.
on January 26, 1983. Dr. Martin is an M.D. and a specialist in
psychiatry. The griever had been referred to him in May, 1979,
by the family physician and wars s2en "every three or four weeks"
that year, and again in 1980; he then seemed "very angry and
,. upset" with the Ministry, the W.C.B., his lawyers, doctors,
nurses and others. Dr. Hartin agreed with Dr. Geiler~'s tele- 3.
phoned assessment in February, 1982, but by July 29 he thought
the.grievor had made such good progre~ss that he wrote as follows
in Exhibit 4:
i
. .
-a-
This patient was seen by me this morning, and at this time
he seems to h doing very well qd coping with 'his emotional
problems very satisfactorily.
Because of this, I see no reason at al.1 &y this patient can-
not return to his previous job and he is now -being dischargfci
from my care.
However, I have suggested to him that he can return to me at any
time in' the future should he~have any other problems. -
~. 'rhe above letter, however, was written six days after
Mr. E.L. Main, the Yinistry's Regional Director, had informed
the griever he would be "released" as of November 1, 1982, a
decision reaffirmed in Nr. Van Horne's letter of August 20
(Exhibit 5),
,. -Dr . Martin's letter of--July 29 is supported by two
notes of the same date (attached to Exhibit 4) signed by Dr.
Otto Feidlinger, M.D., a neurologist, and~Dr. Eric Amann, M.D.,
~... ~-
'."~a family physician, both stating that the patient "is now ready
to return to his usual employment." On the..other hand, there
is no support in the evidence from any psychologist, psychla-
trist or physician for- Dr. Celler's opinion (as a psychologist)
that the griever was not, in February or May of.1982, fit to
return to work as a Correctional: Officer. Although not in
evidence,
sidered as
it may be inferred that W.C.3. medical off
long ago as 1979 that the grievor~ was fit
icers con-
for work,
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a view somewhat qualified by a subsequent decision to grant
him a partial disability pension.
In his testimony Dr. Hartin said that in the early.,
stages of treatment the grievor 'was given to emotional outbursts, _
accompanied by tears, but by July of 1982 these phenomena.no ionger
occurred. He agreed with. Dr. Geller~ that there was no evidence
of psychosis and said a psychologist would be capable of
diagnosing such a condition. Dr. Martin had visited the Don ~.
J*Sl "a couple of times," he knew other Correction.ai Officers
as well as.some inmates and agreed that work at the Jail is done
in "a stress-inducing milieu." in making his assessment of the
. grie~vor in the summer of 1982 he had taken into account the
characteristics of the special environment at the,Jail.
The next question to arise is whether the +lini'stry made
efforts to give.Mr. Varin a further trial as a Correctional
Officer or place him in a position thought to beg more suitable
for him.
It is obvious that at an early date --1 perhaps on'the
strength of Dr.,Geller's reports in M-ay, 1979, and February, 1982 ---
the Ministry decided not to giv2 the griever another chance to
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esume his former duties at the Don Jail.
Immediately after receiving Dr. Geller's second report
(which Nr.. Van Horne erroneously described as "the results of a
medical examination") +lr. Van ;iorne on February 24, 1982, wrote
the griever in the second paragraph of Zxhibit 8 as follows:
As you are aware, the large majority of staff'in the Ltiistry
of Correctional Services are emp,loyeci as correctional officers.
Therefore, vacancies'~in non-correctional positions are fairly
rare _ However, we hill attempt’to locate suitable employment
for you at the earliest opoortunity~. ?o assist with Lhis
process, i fwould ask that you complete and return the anclosed
application form to the undersigned.
Apparently the griever' did make an application as suggested,
but (like certain other material documents) it is not in evidence.
On April ,5, Nr. Van Home wr-ate the griever as follows:
This letter will acknowledge re-a --ipt of your completed application
form which will assist our efforts to secure employment for you in
a non-correctional position.
You have raised several issues in the letter you attached to your ~
.application which I will attempt to clarify. I am advised.that
your insurance -+y&nts from Confderation Life have been terminated
effective March 31, 1982. @oKever, your entitlement to the W.C.9.
disability Fension ++hich you have been receiving would continue.
If I am able to secure employment for you in a non<orrectional
position, your salary as a correctional officer would be protected
for a period of 6 months. However, if the position was classified
.
. . .
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at a lower maximum salary and you were unable to accept employment
in your former classification of correctional officer'at the end of
the sixmonth pried, you *ould be assigred to a classification con-
sistent ,with your condition. Your ability to accept a position in.
your former classificaticn would be determined by a medical examin-
ation at the bMi.nistry's expnse.
In response-to your question about seniority, I can advise that your
Continuous Service Date will remain unchanged should-vou return to
full employment status and a probationary pried would not apply.
I wish to advise you that ~th2 Ministry is not $reLpar2d to sign any~
document with Hr. Koch frcm W.C.B. indicating that you are to be
treated fairly. It is our contention that throughout this entire
process since 1978, the Ministry has been cooprative ard helpful
in processing each and every request you have submitted. You in-
dicate in the final pragraph of your letter of ~Yarch 29, 1982,
that you intend to present ,yourself at the Toronto Jail to resume
employment as a correctional officer if.vou do not receive satis-: . faction "within a couple;~ ~__~._
are pr@clude? fr9m a return to this t-
me?icd recommendations. Re-2mployment with this Minist-y 3
commence without the prior approval of the Suwrintendent of the
Toronto Jail and the undersigned. ~.'
,f weeks ‘1. T rJi+ to advise you that you
i an employinent due to.
dill not
The next letter to Hr. Varin; also from Mr. Van Borne
is Exhibit 9:
In respnse to your letter dated ;rpri
provide the following information. ~,.
.1 15, 1982, I am able to
A non-correctional positionis one which does not involve tk
supervisionof inmates. 'Such a position ~wwld be within 'the
Ministry of Correctional Services or the Cntario Government.
Examples cf these positions would be drivers, maintenance men,
groundsmen, records clerks, storesmen etc. in this Ministry.
Your personal preference for re-employment would not be the
primary consideration in arranging a suitable position. If
the employer located anappropriate vacancy, bearing ih mind
your qualifications, education and medical condition, you wouid
be assigned to this psition under Article 5.6 of the Collective
Agreement.
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Rgarding your present financial. situation, I muld concx with
your suggestion that you contact iMr. Koch from w.C.2,. 732
IHinist,q inould be unable to supplement the present disability
pansion you are receiving from 5t.C.B.
It appears: that by Duly 23, the tiinistry had abandoned
hope.of finding a job for the grievor. On that date Regional
Director J.L. Main wrote him as follows in Exhibit 3:
Further to ti. Van Home's Letter of June 16, 1982, it'apFars
that the Ministry is unable to find you employment in the Toronto
area.
As you,are no longer receiving tong T2rm income Protection 'benefits,
it will now be necessary to piace you on titice of Release. Ther2-
fore, effective August 1, 1982, this will serve 2s official notice
of release as p2r Section 2214) of tne rublic Service Act. Your
date ~of release from employment will be threes months from that date
lyi?ich is November ~1, 1982.
A copy of this letter and your bac!<ground iAnformation wiil ix
forwarded to the Civil Service Commission, Surplus Policy Section.
You will be placed on the surplus list and should a vacancy occur
in another >Hinistry for which you are qualified, you will be con-
tact2d by k. Van Borne. Ln order to assist the Surplus Section in . .
identifying any possible positions, it would be appreciated if you
muid advise :Xr. Van Borne as soon as possible how far you gould be
willing to travel to work.
,..
Mr. Varin then wrote letters (not in evidence) to Mr...+-
R. Gawley, (the Hinister's Executive Assistant) Regional Director
Main and ,Assistant Regional Personnel Administrator J. Hannah.
The reply (Exhibit 5) 'dated August 20, came from or. Van Home.
In it he said:
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A Notice of Release can be issued in a variety of circumstances,
however, in your case, the ~Yirnistry has been unable to identify any
suitable vacancy for which you are qualified. Therefore, you are
considered to be a surplus employee subject to .Article 24 of the
Collective &g;reement. Every effort will be made to identify a
position for which you are qualified through the use of the Sur-
plus Employees List which is circulated throughout the various
Provincial Government personnel offices. (
I muld stress that every job placement alternative was explored
on your behalf through tie services of ItiistIy Personnel Xmin-
istrators and the Civil Service Commission prior to issuing your
Notice of Release.
I note that you have forwarded three doctor's certificates
indicating that you are able to return to your former duties,
within one xeek of receiving ~+lr. Main's !Uotice of Release. I
rmxt advise you that the Ministry will rely on the extensive
report provided by Dr. Caller dated January 19, 1992. His re.mrt
clearly states: _ "T doubt whether Nr. Varin x&ii1 ever 'be suffic-
iently fit to resume duties as a Correctional Cfficer." A
review of the various reports and correspondence concerning your
medical problems onttined on your personnei file certainly
support this conclusion.
merefore, if the itiistry is unable to identify a vacancy for
which you are qualified prior to i\lsvember 1, 1982, you will be
separated from the Kinistry of Correctional Services effective
that date.
The.letters quoted above constitute the only documen-
tary'evidence'of efforts to find employment for Mr. Varin. in
'his testimony, .Mr. Van Home said that in April; 1982, he for-
warded the grievor's "application" to ."Regional Personnel"
(of which he was himself the Administrator) and to "the Civil
Service Commission's Branch for Special Needs," by which he.~may
have meant the Recruitment Branch of the Commission. He also
checked Topical and the competition notices and found that very
few vacancies existed. He said there tiere Ministries with
vacant clerical positions but "hundreds" of laid-off employees
had more seniority than Mr. Varin. Fle had not received any
notice of the griever's desire to "bump" an employee with less ~'.
seniority. .I.,
In cross-examination, Mr. Van Home claimed he had
"checked all non-correctional positions"-for which the griever
might be qualified, but said he had not told Mr. Varin about
any of them because there were so few and he had so Xttle
seniority. He insisted that &Is.. Varin could not "bump" any of
the correctional officers with less seniority because,~on the
basis of Dr. Geller's opinion he was "medicaily not fit." He
relied on that opinion.
For reasons entirely beyond the control of this Board,,
a whole series of problems have arisen in this case. These
serve to explain the conclusion we have reached and they wil
be ident~ified seriatim.
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Problem (1): The Witnesses
'The griever himself was~not called as a witness,
although present throughout the hearings, which must have been
somewhat stressful for him. Unusual though it inay be, the
griever's representative exercised his discretion to refrain
from calling %r. Varin. From the ,outset Mr. Sheppard had taken
the position that the onus is on the employer to justify its
decision. The employer's representative, "Ir. Fleishman, had
agr eed to.go first with his evidence, but argued that the onus
in .this case his on the grievor, no~t the employer, claiming tinat
the action taken was under subsection (4) of Section 22 and was
not a.dismissal for cause-under subsection 13).
Apart from the question of the appropriate onus, this
Board is left in the position where it has had no opportunity
to assess the grievor's. version of his history: We must there-
fore rely exclusively on the documentary evidence and the test-
imony of Mr.. Van Horne;Dr. Geller~'and Dr. Martin. It is
obvious that other witnesses could.,have testified and ought to
have been called.
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Problem (2): The Performance Record
Similarly, evidence is lacking as to the performance
record of the griever before November 12, 1978. .He had served
as a Correctional Officer for more than 22 months. He had
completed his probationary year; his performance-, we must
assume, was appraised regularly, and yet"no appraisals are in.-.
~,.
evidence ---~a~ they ought to be. No supervisor having know-
ledge of his work was called to testify. 'de are left with no
.I
information whatever a'bout his record except for the hearsay
evidence of Mr. Van Horne, which related only to the incident .
of November 12, 1978 when ?4r . Van tiorne Gias not present. There
is not an iota of evidence that +!r. Varin's perform;nCe over
a period of 22 months was anything other th,an satisfactory..,Me
are obliged to assume that in deciding the grievor was unfit
to perform the duties of a Correctional Officer, the Employer
must be relying exclusively on ia) the incident in ~November,
1978, and (b) the opinions of 'Dr. Geller.
Problem (3): The Incident
.
As alrea.dy stated, the testimony about ~the incident
and the griever's injuries at_the time must be regarded as pure
; ‘i
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hearsay. hr. Van Horne has said that Lieutenant Nicholson was
in charge of the exercises. Lieutenant Nicholson did not testify
nor did any other person who was oresent at the time. / It is
alleged by-'Mr. Van Horne that the grievor, cpntrary to instruct-
ions, attac'ked anoLher officer. ^ c That officer did not testify. .
Nor did the nurse,who attended -the grievor. Nor any doctor who
saw him soon after. Nor did the griever hims.elf.
-It is not disputed that the grievor suffered injuries
--- sufficiently serious to warrant consideration and eventually
a pa= tial disability pension from the W.C.B. tiowever, wee are
left in the dark as to r;hat actually happeneh on ?lovembe,r 12,
1978, and the evidence, such as it is, does-Tot permit us to
conclude that the grievor was solely responsible. If he‘was
the Employer had every opportunity to prove it, which was not
done.
Problem (4): The So-called "Medical Evidence _ "
In his letter to the griever of February 21, 1982,
Mr. Van Home referred to "the results of a medical examination
conducted by Dr. S. Geller." On Apr,il
wrote: "You. are precluded from a return
5 , 1982, Mr. Van Horne
to this type of an
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employment due to medical recommendations," and underlined those
words.
The fact is th~at when the grievor was notified of
termination by letter dated July 23 (termination to be effective
November 1) the Ministry was relying on Dr. Geller's reports.of
May 23, 1979, and February 19, 1982. Dr. Gtller is not a ~
medical practiti,qner; he is a clinical psychologist practising
under the Psychologists Registration Act, not otherwise.
Ther-2.zhave been v~ague references in testimony and in one letter
to "medical" opinions at the X.C.B. (which doubtless existed)
but no such opinion is in evidence and Mr. Van Home did not say
he had seen any. The evidence fails to disclose that the LMinistry
had in its possession any medical opinion whatever wtien making
its decision to release the grievor.
The graevor had apparently failed to g~ive the Hinistry
any opinion from his own doctors prior to JULY, 1982 (as he .ought
to have done) and there is no evidence he was asked for any,
which is regrettable. It was not until after receiving notice
of his release that he sent the Ministry Dr. Dennis tiartin's
letter (quoted earlier) supported by the opinions. of,Dr:
Veidlinger and Dr. Amann.
9 -
Mr. Van Horne acknowledged receipt of the three opinions
(which were genuine medical opin.ions) and then said the Ministry
would continue to rely on Dr. Geller's second report that:
"I doubt whether Mr.'Varin vi11 ever be sufficiently fit to
resume duties as a Correctional Officer." That cautious state-
ment expressed doubt., not certainty: the Ministry preferred to
rely on a rather equivocal opinion by a psychologist rather
than on the opinions of Dr. Martin, a psychiatrist as well as
an M.D., Dr. Veidlinger, tiho is a specia,list in neurology, and
Dr. Amann, a medical practitioner.
The grievor was at fault 1,
n failing to give then
Ministry letters from his own:doctors k‘hen he wrote Mr. Van
Horne on March 29 tha~t he intended to resume work as ,a Correct-
ional Officer --- or shortly thereafter. It is also unfortunate
that the Ministry did not respond by demanding that he produce
z.:
medical evidence.
In fairness to Dr. Geller, several points must be
mentioned. He never described his reports as medical opinions
or medical recommendations. Secondly, he said in his
of May 23, 1979, that there had been a "physical exam
r.eport
.nation"
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by Dr. G. Sweet, although. the latter is not described as a
psychiatrist and 'his opinion is not in evidence. Thirdly, Dr.
Geller was cautious in the conclusion of his 1979 report when
he said of the griever: "He should no,t be permitted to return
to work without a certificate of fitness from his attending
specialist." That last statement signalied the need for a
real medical opinion, a signal which ought to have'been heeded.
Finally, as mentioned earlier, he consulted Dr. Martin by tele-
phone in February, 1982, and at that time (but not later) Dr.
IMartin agreed with him.
It isnot a mere quibble to distinguish between a
~medical opinio?and a non-medical opinion.
The iiealth Disciplines Act, R.S.O. 1980 chap. 196,
Part III (Medicine) sets out ,the licensing provisions and the
exclusive prerogatives of the medical profession. . it provides,
inter alia, as follows: . .
'_ 52(l) No person shall engage in or hold timseli out
as ergaging in the practice of medicine unless he~is
Licensed under this Part.
l-
Of course Dr. Geller did not hold himseif out as a -
medical practitioner. It was the Ministry which described his
opinion as medical evidence.
Further, the Psychologists Regis.trat%on Acti 4.5.0
1980 Chap. 404, under which Dr. Geiler is registered, provides as
follows~:
12. No Fson .&o holds a certificate of registration
shall treat-any prson for any tse of mental disorder for a .~
fee or other renumeration except on the request ofor in assoc-
iation Keith a legally gualifiti medical~ptactitioner.
13. tithing in tks Act au'brizes a prson kho hoids'a
certificate of registration to engage in any manner in the
practice of medicine, surgery or midwifery.
.~r,-T~.~.
It is thus clear that the Hinistry was mistaken in
believing that it had "medicaj: ~evidence" one which to rely. Rn
example of that erroneous belief is Exhibit 8,.dated February
24, a letter to Mr. Varin which began with the following words
"I have received the results of a medical examination conducted
by Dr. S. Geller which you recently attendeh." Nowhere in any
of Dr. Geller's reprts does he describe his work as "medical."
Obviously, he COUid not do 50~; ,; ,..
I - 22 -
Problem (5): Statutory Authority
argument was.no~t completed at the hearing of January
26. Before ‘adjourning, the Board asked counsel to make written
submissions regarding the applicability of Section 22(a) in
the Public Service act to the facts established at the hear.ing
The submissions received in February and March dealt with the
merits of the case as well as the legal problem.
Before quoting then submissions of counsel, it iS well
to re-examine the language of subsections (3) and (4) in Section
22 of the Public Service Act:
i ~'
13) A deputy minister may for cause dismiss from.employment
in accord.ance.with the regulations any public servant in 'his
mmistry.
(4) A deputy minister may release fro&~ employment in accordance
with the regulations any public servant &here he considers it
_ necessary by reason of shortage of mrk or fur& or the abolition
of a position or other material change a organization.
It will be noted that the word "dismiss" is used in
(3) but not (4). The Crown Employees Collecti~v'~~Bargaining~ Act -~.>
-,in Sections 18 and 19 uses corresponding words --- "dismissed"
and "dismissal." --- when providing .for an employee's right to ..
- 23 -
grieve and to refer, a grievance to arbitration.
In the employer's submissions, following are the
paragraphs relating to the applicability of Section 22(4):
Section 22(4) refers to a shortaqe of work for zny public
servant and it is therefore submitted that as the Griever herein
was unable to perform the&y,-Frk available for him the Deputy
Minister's designee correctly released him pursuant to Section
22(4). The Employer has a further discretion, by the words of
Section 22(4), to determine whether a shortage of i;ork exists
for any public servant as the Section provides that the Deputy
Minister may release from employment "where he considers it
necessary by reason of shortage of work". Thus, it is witithin the
Deputy Minister's discretionas to when a shortaqe of work exists
and it is submitted that that discretion has 'been exercised
herein. ..
Release from emploprme?t pxsuant to'secticn 22(4) must ke
made in accordance with the regulation. Section 32 of requiaticn
749 uder the public Service t%zt deals 14th release from einoloy-
ment pursuant to Section 22(4);~however, Section 32 is speclfi-
tally excluded from appplicatioti with reqards to employees k<thin
a unit established for collec+Ave bargaining. Tlxs, Section 32
has no application to '&is grievance.....
it is submitted that. if Section 2214) is interpreted by the
Board so as not to apply to the circumstances herein, there will
be disharmony between the Public Service Act. and the Coilective
Agreement which ShOUid ‘be avoided within statutes in pari materia
(E.4. Driedqer, 'Re Constructionof Statutes (1974)). Cn the
.fac.ts~ presented by the Employer the emoloymat contract has been
frustrated due to the Griever's inability to perform. If tie
Employee was to be terminated de to the said frustrationhe
would lose the protection of Prticle 24 of ~tt-e collective
agreement. Moreover, Article 41.10(a) could ,not be applied even
though that article provides that Article' 24 shall apply hhen an
Employee has been receiving LTIP benefits and is subsequently able
to return to full time employment.
,’
- 24 -
It is therefore submitted tLhat the Griever was prooeriy
released, pursuant to Section 22(4) or the Fublic Service Act,
due to a shortage of kork which he was able to wrform.
In the submissions made on behalf oft the qrievor
~bllowing are the
relevant paragraphs:
9) ?TkEmployer relies-on Section 22(4) of the Fubiic Service
Act, R.S.O. 1980 C.418 for their action which it is su'cmitted
is a section desicned to enable the-Em&over to deal aooroo- - . . . . . riately with, management re-organizations, budget cuts or
alterations, and political charges in Mtiisterial respnsi-
bilities. The Employer has led no evidence in support of any
of the akwe situations occurrtig during the Summer of 1982.
10) In the Employer's submissions the nTlployer refers to
Requl&an 749, now 881, and Section 32, now 19; but, it is
the Employee 1s subnission that tkiese regulations do not apply.
since, Section 22(4) should not be interpreted as +piyiiq to
this fact situation.
11) h the evidence presented, this interpretationoresents
no disharmony between the Public Service Act and the Collective
Agreements. The Employer admits the Dnployee can perform. The
Employee's termination (release) letter indicates the Fmplcyee's
only option is to be placed on the surplus list:&thout refer-..,:
ence to any right of "bumping" which was not in the Employer's
mind at the *lme of Ijriting, because of the Employer's desire '
to terminate. It is not open to the Employer to retroactively
describe its actions as,a 'lay off' as describedin .kticle 24~
of the Collective Agreement.
12) If the Employer's Lpsition was ~adoptd by this Roar-d, the
Employer could terminate employment of Union mem&rs without
proven cause simply on the pretext there was a shortage of wrk
for that BrtiCUiK me&r employee. This i+ould defeat the
intent of-the Crown E&oyee's Collective Bargaining Act, R.S.O.
1980, c.108, Sec.1812) and/or the existing Collectives hreement.
- 25 -
The words "for cause" in subsection 13) of section
22 give the Employer a very wide scope in exercising the power
of dismissal. In this case, however, the Employer's counsel
insists that the; power of dismissal ?as not exercised under
subsection (3). instead the power to "release," he contends,
was used under subsection (41. The words "for cause" do not
appear in subsection (4). The deputy minister's power may be
exercised only where he considers it necessary, and that
-necessity is subject to four,specific conditions, at least
.
one of which must exist:
'. (ai by reason of shortage of work, or
(b) by reason of shortage of funds, or
(c) by.reason of the abolition of a position, or
id) by reason of "other matlrial change in organization."
Consistent with the evidence, Employer's cbunsel hasp
not suggested that any of the four conditions existed here.
He simply rests his case on a-finding by management that the
grievor is not "suitable" for the work of a Correctional Officer,
relying on a somewhat tentative non-med>ical opinion. Subsection
(4) is tread as. though it stated a fifth condition (as it does
not) --- i.e. "by rkason of the unsuitability bf an employee in
respect of a particular position."
- 26 -
The word "lay-off" does not appear in subsection (4)
but in substance it empowers a deputy minister to lay off
employees for the usual~ reasons --- where necessary. it is
a distortion of that substance to interpret it as though it
meant the same thing as subsection (5), which empowers a
deputy minister to release a 'probationer "during the first
year of his employment for failure to meet the requirements
of his position." The term "unsuitability" is simply another
sway of saying that an employee is unable to meet the require-
ments of the position. But the whole purpose of subsection (5)
is to enable management within one year to satisfy itself that
an employee is in fact able to meet the requirements; there is
nothing in the Public Service act to suggest 'tiiat a negati~ve
judgment can be made after the completion of a year on pro- .
bation, except of course by resorting to disciplinary action
under subsections (l),(2) or (3) of Section 22.
It must again be pointed out that the Public Service
Act lacks specific provision for the release of an employee by
reason of incompetence or incapacity. By way of contrast,the
federal Public Service Employment Act, R.S.C. ~1970 Chap.. P-32,'
provides as follows:
- 27 -
31. (1) b44ere an emqloyee, in the opinion of the deputy head,
is incompetent in perrormtig the duties of the position he occu-
pies or 1s incapable of performing those duties and shauld
(a) be appointed to a position at a lower maximum rate of pay, or
ib) be released,
the deputy head may recommend to the Commission that the employee
may be so appointed or releasd, as the, case may be.
Such releases may be appealed to a Tribunal maintained
by the federals Public Servi~ce Commission.
It may be perhaps that in a clear case of incompetenc'e
or inc-pacity"N$' sucn as a mental or physical breakdown of pro- ~.
longed duration) an Ontario deputy minister can rely on the
sweeping words "for ,cause". in subsection (3) of Section 22. '
If so it would be an unfair and deplorable result --- placing _.
the employee in the same category as one~dismissed for serious
misconduct, such as fraud or theft. Surely a distinction shouid
be recognized between termination for misconduct and termination
I for blameless reasons, such as disease, mental or physical.
The former consitutes a "record" in the most unpleasant sense
of that word; the latter does not.
It is probably due to the lack of an appro.priate
- 28 -
provision in the Public Service :'.ct that in this case the
Employer, when concluding that the grievor '*ias not "suitable"
for the position of ~a~~ Correctional Officer, felt obliged to
rely on a rather far-fetched construction of subsection ,,(4)
in Section 22. Ho'Gever, we must take the Act as we find it. -
Having considered the argument made by Mr.: Fleishman, we do not
think that~ subsection (4) is applicable in the case before us.
It folio-ws that , in our opinio~n, the employer lacked statutory
authority to take'the action it did in "releasing" the grievor.
For all .practical purposes, he was not laid off, he was in fact
"dismissed," his employment having been terminated 3s of ~Nov-
ember 1, 1992. Entirely apart from the meri.ts of the case or
the wisdom of t'ne decision, xnat was done 'had no lawful'authority
AS the Federal Court of.Canada hel,d in Wright v. Public Service
Staff Relations Board: (1973) 40 D.L.R. (3dl.698,
an employee terminated without lawful authority does not cease
to be an employee, followed by a trial judge !1975) F.Cll 506.
In that case a qrievor was successful in the Federal
,Court of Appeal and in the subsequent tr.ial won damages of
..$20,000 from ~the .Crown, the reason being that he had .been
terminated as a probationer x-hen in fact his probationary
- 29 -
period had expired. That kesult occurred notwithstanding
the original finding of an.adjudicator that there had been
grounds for dismissing the employee, he being unsuited for
his position.
It is difficult to understand the Employer's argu-
ment that "if'section 22(4) is interpreted by the Board so as
not to apply to the circumstances herein, there will be dis-
harfi‘ony between the Public Service Act and the Collective
Agreement which should be avoided within statutes in pari materia."
The Collective Agreement is not a statute; it is 'an agreement.
ILany event, we find nothing in the ,agreement to support the
theory that there is such "disharmony." ..!
It has also been 'argued that ",the employment contract
has been frustrated due to the Griever's inability to perfqrm."
That is clearly the opinion of the Employer, but. it is ba'&d."~
on inadequate evidence of a non-medical natur@..~The griever
wished to re.turn to work and so informed the Employer. Se
wasdenied the.opportunity of having even a trial~on the jog,
and again after' presenting opinions of his fitness 'from three
qualified medical practitioners. Those'are not f,acts upon
which a finding of "frustration" could be made:
- 30 -
Problem (61: The Question of Onus
If the grievor had been dismissed "for cause" under .~
subsection (3) of Section 22, there would be,no doubt about .
the burden of proof: it would be for the Employer to establish
just cause. However, the termination is expressly stated
to have been a "release" under subsection (4) and the.2mployer
counsel has argued that in such a case the onus is on the
'employee.
. . This case resembles those in wh,ich arbitrators,
adjudicators and the Courts have f requently.had to consider
the rejection or release of probationers. The question,
arising in such cases. was whether the termination 'was ins
reality a dismissal or discharge "disguised" as a release or
,rejection by reason of failure to meet the requirements 'of the
position. Thus it has repeatedly been held that there is an
onus on the griever to establish first that the termination
was not what it purported to be. In the Ja~cmain case (1978)
2 S. C; .R. lS, the Supreme Court of Canada produced three
different judgments, but it was held that the adjudicator or
S
arbitrator has a duty to decide as a preliminary jurisdictional
.i.:
question whether the termination was correctly characterized
by the Employer. The point was repeated with.emphasis by
Heald J. of the Federal Court of Appeal in Richard (1978)
344. These and other cases were fully reviewed in 2 F.C.
Goodale (1978) 21 L.A.C. (2d) 245.
-,31 -
In the -light of the cases cited above, we are obliged
to conclude that there was an onus on the gri,evor to show that
his termination was wrongly characterized by the employer and
that-it was not one falling within the language'of subsection
(4) in Section 22 of the Public Service Act. ,00r reasons al-
ready stated,~ we further conclude that the onus, has been dis-
charged. Although the grievor himself did not testify, the
evidence of Dr. Martin together with the cross-examination of
Mr. Van Home and the numerous exhibits entered into evidence
were more than sufficient to establish that the termination was
not a "lay-off" or release of the kind.contemplated by Section
22(4). It was simply an attempt to get rid of an employee
thought to be "unsuitable" for his job --- lonql,.,after he had
completed his probationary period. To regard this as a "lay-
off" is more than a "terminological inexactitude;" it is a
reversible error.
- 32 -
Problem (7): The Remedy
The circumstances here are most unusual and create
difficulty in formulating the appropriate remedy.
More than four years h'ave passed by since the griever
ceased wor'k by reason of certain injuries. He was on sick
leave; later he was on Workmen's Compensation and eventually
until the insurer decided, apparently with.good reason,'tha .t he
received a partial disability pension; he qualified for L.T.I.P.
was capable of resuming ijork
Such unusual circumstances supported the Employer's
belief, -t,h,at the grievor was no longer capable of acting as a
Correctional Officer. 'We are impressad by the fact that the
W.C.B. (no doubt on medical evide.nce) found .him to be qual-
ified for a partial disability pension. That fact alone raises
a question about his capacity to carry out.,the duties of his
former position. The same question may shave been in his mind
when he completed an application for other work in April, 1982,
as Mr. V~& Horne had suggested-he should do. severtheless,
we are not in. a poiition to rej,ect the testimony of Dr. Martin
and the supporting opinions of Dr. Veidlinger and Dr. Amann.
- 33 -
It seems clear that the grievor is employable and may be no
less capable than others of acting as a Correctional Officer.
Some of thos.e serving now are probationers with less exper-
ience than the grievor.
In his letter of July 23, 1982 (Exhibit 3) 41r. Nain
informed the grievor that "effective August 1, .1382, this will
serve as official notice of release as per Section 22(4) of
the Public Service Act," and that "your date of,release 'from
employment will be three months from that date which is Uov-
ember 1, 1982."
We have been obliged to conclude that there was no
statutory authority for thee "release" and it must therefore be
regarded as a nullity.
The griever was also informed by ?lr. Main that "you
will be placed on the surplus list.and should a vacancy occur .
in another ~k!inistry for which you are qualified, you wiil be
contacted by Mr. Van Home."
We do not doubt Mr. Van Horne's statements thatthere
have been few suitable vacancies and others on the surplus. list
- 34 -
have mbre seniority than the grievor. NO details, however,
were given of efforts made $0 find vacancies, and we are not
convinced that they were vigoro,usly pursued. It is apparent
that the Ministry was relying heavily on Dr. Geller's opinion,
disregarding medical opinio_ns and relying also on its misun-
derstanding of Section 22(b)...
In the normal course, a finding that the employee
was terminated without lawful authority would be followed by
an order for reinstatement. I"'
~ In the peculiar circumstances of this case, and
having regard to the best ~" interests of the..grievor himself
as well as his app,$rent willingness to take other moor!<, we
are not prepared to go so far as to order immediate reinstate-
ment. In our view the employer should be given a further
opportunity to locate a position for him within the Ministry
or in some other Ministry. .,-
Our order in this case must therefore be as. follows:
(1) The term~ination purporting to be a "release,"
in effect a dismissal made without lawful authority, is hereby
- 35 -
set aside.
(2) The grievor shall be restored immediately
to the s,&tus of an employee on leave, but since hisem-
ployment has never been lawfully terminated and since he
is in receipt of a partial disability pension from the
Workmen's Compensation Board as the result of an incident
at the work-place, he shall be.paid at the rate of 80 per
cent of the present salary of a Correctional Officer 1
from the date of his grievance, September 1, 1982, until
such time as he is re-employed on a full-time basis, less
any earnings he may have 0; may have had during that period
(3) If a position within 30 kilometres of the Toronto
City Hall is found for the grievor at any time from the-date
hereof until July 22, 1983, the grievor, on receiving at least
one week's. notice from the Ministry, shall apply for and accept
such position, provided that he meets its minimum qualifications
and provided also that the salary attached thereto is at least
90 per cent of the salary the grievor would receive as a
Correctional Officer 2.
(4). In the event that the griever f,ails to .apply
for and accept a position as specified in parkgraph (3) above,
he shall be deemed to have withdrawn his grievance.
($ 'In the event that the Ministry fails to identify
and give notice of a vacant position as specified in para-
graph (3) above, the grievor shall be reinstated as a Cdrrect-
ional Officer 2 at the Don Jail on .Monday, July 25, 1983,
- 36 -
whether or not the Hinistry~ finds it necessary to "bump" an
employee with less seniority.
(6) The Board retains jurisdiction in the event'
that any dispute arises in respect of the imolementation of
this decision and will hold a further hearing at the request-
of either @arty made ir. writing to the Registra-.
Dated at Toronto this
19th -day of&xii, 1983
2: 1470
8: 3342
3: 3300
EBJ:sol
Aiti &Qd$. / /y/ ;/ E. B. Jolliffe, Q.C. Vice ChaIrman
P. craven P. craven Member Member
G. A. Peckkm G. A. Peckkm