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HomeMy WebLinkAbout1983-0706.Brown.84-08-21SETTLEMENT 706/83 747183 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between:. OPSEU (C. M. Brown) Grievor - And - The Crown in Right of.Ontario (Ministry of Natural Resources) Employer Before: R. J. Roberts Vice Chairman H. Simon Member D. B. Middleton Member For the Grievor: R. Nabi Grievance Officer Grievance Section Ontario, Public Service Employees Union For the Employer: W. M. Kenny, Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearing Date: June 29,.1984 7 -2- INTERIM. DECISION The matter before us involves two grievances in which the Grievor grieved his suspension pending investigation into possible misappropriation by the Griever of photographic and audio/visual equipment belonging to the Ministry. At the out- set of the hearing, the Ministry objected to jurisdiction on two separate grounds. The first ground was that the suspension was not reviewable by the Grievance Settlement Board because it was not yet of a disciplinary nature; the second ground was that, in any event, the second grievance was inarbitrable because of failure on the part of the Union to observe the time limits specified in the grievance procedure set forth in the Collective Agreement. We proceeded to hear evidence~and argument regarding these two preliminary objections and then adjourned the hearing to prepare this interim award. On October 4, 1983,th~e Grievor received the following letter from the Office of the Deputy Minister: "Dear Mr. Brown: In accordance with Section 22(l) of the Public Service Act, this is to,notify you that you are hereby being suspended from employment for 20 days pending investigation of possible misappropriation by you of Ministry photographic and audio/visual equipment. This suspension, with pay, is effective from October, 4, 1983, and will continue up to and including November 1, 1983. YOU are to surrender all keys, within your possession, to Ministry offices, file cabinets and desks to Mr. T. Coleman, Director, Communications Services Branch forthwith, -3- You will not be permitted to enter the Communications Services Branch without the permission of Mr. Coleman, or until further notice. Yours very truly 'R. J. Burgar' W. T. Foster for Deputy Minister" The Grievor was notified that he was suspended from employment in accordance with Section 22(l) of the Public Service Act. This suspension was with pay. On October 12, 1983, the Grievor filed a grievance stating, "I grieve that the suspension imposed on me, as set out in the 'letter of October 4, 1983,...is unfair, unwarranted and unjustified." The settlement that was requested was "[withdrawal] of the suspension imposed, as well as having that suspension expunged from all records." While the suspension which was referred to in the letter of October 4 was for 20 days, it was periodically extended by letter from the Deputy Minister, so that it extended up to and beyond the date of the hearing. This procedure was necessitated, apparently, because the suspension purported to be a suspension "pending an investigation" pursuant to Section 22(l) of the Public Service Act, R.S.O. 1980 C. 418. The regulations under the Act prescribed that in such cases, "the period of suspension shall not exceed twenty working days". Regulation 881, section 18(l). In order for the Deputy Minister to extend the twenty-day period, it was necessary to take action pursuant to Section 18(2) of regulation 881, which reads as follows: "(2) Notwithstanding subsection Cl), where in the opinion of the deputy minister, an additional period of time is required to complete the investigation, the deputy minister may renew the period of suspension for not more than twenty working days in each case, for such additional periods as are considered necessary." Under this provision, the Deputy Hinister was entirled to extend the twenty day suspension for such additional periods of time as were, in the opinion of the Deputy. Minister, consider& necessary to complete the investigation. On November 29, 1983, the Deputy Minister sent the following letter to the Grievor: "Dear Mr. Brown.: Further to my letters of October 4 and 27 1983, this will advise you that in accordance with Section 22(l) of the Public Service Act, you are hereby suspended from employment pending,the determination of criminal charges against you relating to the possession of stolen ministry property. At such time as these charges are disposed of, the ministry will review the matter and take ,appropriate employment action. This suspension will be without pay and :is effective from December 1, 1983 up to and including December 30 1983. During this period or until further notice you will not be permitted to enter the -5- Communications Services Branch without the permission of Mr. T. Coleman. While recognizing the criminal nature of the charges against you, if you believe that you have information of these circumstances that should be considered by the Ministry, you should advise Mr. T. Coleman, Director of the Communications Services Branch. Yours very truly, 'W. T. Foster' W. T. Foster Deputy Minister" The impact upon the Grievor of this action was to deny him pay during the remainder of the suspension period. The nature of' the .suspension did not change. It still purported to be a suspension pending investigation pursuant to Section 22(l) of the Public Service Act. For some reason which was not made clear to this Board, the Grievor initiated a second grievance in response to the above letter. The grievance was in essentially the same form as the first one that was filed. The only material difference rested in the addition of the phrase, "with no pecuniary and benefits loss", to that part of the grievance form headed, "Settlement Required". This grievance went to step 1 of the grievance procedure set forth in the Collective Agreement; however, the Union did not refer it to step 2 within the required time limit. Instead, on December -6- 19, 1983, the grievance was referred directly to the Grievance Settlement Board. By letter dated January 24, 1984, the Ministry advised the Registrar of the Grievance Settlement Board that it "intends to take the position that this grievance is not arbitrable as it has not been processsed in accordance with the mandatory grievance procedure set out in Article 27 of the Collective Agreement." We now turn to consideration of the two grounds of preliminary objection which were raised at the hearing. The first ground of preliminary objection rested upon a submission from Counsel for the Ministry that so long as the Deputy Minister suspended the Grievor pursuant to Section'22(1) of the Public Service Act, the Grievance Settlement B,oard lacked jurisdiction to review the suspension. This submission was based upon a sophisticated analysis of the operation of Sections 22(l) and 22(2) of the Public Service Act in conjunction with Sections 18 .and 19 of the Crown Employees Collective Bargaining Act, R.S.O. :1980 c. 108. The essence of the argument turned upon an interpretation of Section 18(2)(c) of the Crown Employees' Collective Bargaining Act. This - " (2 1 In addition to any other rights of grievance und le r a collective agreement, an employee claiming... provision reads as follows: (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure -7- provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19." Counsel ably argued that jurisdiction to review suspensions pursuant to this provision was limited to disciplinary suspensions, and not suspensions for investigation. Turning to the provisions of the Public Service Act, Counsel submitted that the non-disciplinary nature of a suspension for investigation under Section 22(l) could be highlighted by contrast- ing its wording with that of Section 22(2). The latter provision reads as follows: "22(2) .A deputy minister may for cause remove from employment without salary any public servant in his ministry for a period not exceeding one month or such lesser period as the regulations prescribe." The attention of the Board was drawn to the emphasis in this provision upon removal for cause, and the absence of any similar wording in Section 22(l). It was contended that this difference between the two provisions indicated that under Section 22(l), the Deputy Minister had authority to suspend without cause; otherwise there would have been no need for the legislature to enact Section 22(l). -8- The Union did not respond at length to the matters of statutory interpretation which were addressed in the foregoing argument: rather, the thrust of'the Union's submission went to the question whether the suspension of the Grievor was a Section 22(2)-type'kemoval for cause"masquerading as a Section 22(l) %uspension pending investigation". Counsel for the Union submit- ted that either from the outset or at some point during the lengthy period of suspension of the Grievor, the character of the suspension became disciplinary, and not investigatory in nature, thereby rendering the merits of the suspension reviewable by the Grievance Settlement Board. Based upon these submissions, it appears that the Board does not have jurisdiction to review the merits of a suspension "pending an investigation" under Section 2211) of the 'Public Service Act. Even so, however, the mere declaration by or on behalf of the Deputy Minister that a suspension is "pending an investigation" within the.meaning of Section 22(l), would be insufficient to oust the jurisdiction of the Board. Under Section 19(l) of the Crown Employees Collective Bargaining - Act, the Grievance Settlement Board has jurisdiction to determine - "whether a matter is arbitrable". Pursuant to this jurisdiction, the Board has the duty, in proper cases; to determine whether a particular suspension actually was or continued to be "pending an investigation" within the meaning of Section 22(l) Of the Public Service Act. If, in such an inquiry, it was found that -9- this was not the case, then it would seem that the Board would have jurisdiction to review the.merits of a claim that the suspension was without just cause. As we understood the arguments at the hearing, it did not-seem that Counsel for the Ministry disagreed with this point. He did, however, submit that in enquiring whether a suspension actually was or remained "pending an investigation" within the meaning of Section 22(l), the standard of review. permitted to the Grievance Settlement Board would be narrowly circumscribed. In support of this submission, Counsel referred to Section 18(2) of regulation 881 under the Public Service Act. He pointed out that this regulation left to the "opinion of the deputy minister" the question whether "an additional period of time is required to complete the investigation;? Counsel sub- mitted~ that the power of the Grievance Settlement Board to review the question would be limited to determining whether the opinion of the Deputy Minister that additional time was required was reached in good faith. The regulation would constitute a bar to full-scale review of the correctness of the decision. At this point in time, it does not seem convenient to make a ruling upon the foregoing submission. The submission does not go to the merits of the preliminary objection. Upon these merits, we conclude that the preliminary objection succeeds, - 10 - to the following extent: that at the moment at least, our jurisdiction is limited to determining whether the suspension . .._ of the Grievor actually was and continued to be under Section 22(l) of the Public Service Act. It would seem most appropriate to defer making any ruling upon the standard of,review to be applied with respect to this issue until after the Board has heard evidence and argument upon the matter. At this point, it seems that without the assistance of agreement.between the parties, the Board will not yet be in a position to hear evidence and~argurnent upon the merits of the. suspension. The determination that the Board must make upon the above jurisdictional issue is not analogous to that in “release versus dismissal" cases. In those cases, as is well known, the question of jurisdiction usually falls to be decided upon the same evidence as the merits. As a result, it is common to hear evidence of the merits before determining the jurisdictional issue. In this case, this is not so. The evidence bearing upon the issue of jurisdiction differs from that bearing upon the merits of the suspension. with respect to jurisdiction, for instance, evidence relating to the existence of on-going investigative efforts would seem to be of primary importance. Of primaryimportance on the merits, however, would be evidence relating to the existence of just cause for the suspension. - 11 - Turning to the second ground of preliminary objection, i.e., the failure of the Union to refer the second grievance to step 2 of the grievance procedure in a timely manner, Counsel for the Ministry made an extensive submission which seemed principally designed to induce the Board expressly to resile from or alter its holding in Re Keeling, G.S.B. No. 45/78 (Prichard). This holding was summarized as following: ' In [Re Keeling]... the grievance violated the mandatory time limits in the collective agreement between the parties. Th,e Board held that the mandatory time limits were inconsistent with section 17(2) of the Crown Employees' Collective --- Bargaining Act and could not therefore act as an absolute bar to the processing of the grievance. The Board did make clear, however, that this decision did not eliminate the relevance of delay in processing grievances but rather made delay a matter going to the merits of the case as opposed to the Board's jurisdiction. The employer sought judicial review of that decision in the Divisional Court but in an unreported decision dated April 14, 1980 the court denied the employer's application. The employer then sought leave to appeal to the Court of Appeal and was again unsuccessful. . ..' Re Clements and L.C.B.O., G.S.B. No. 112/80 (Prichard),~ at 7. Counsel sought to persuade us that this decision was wrong and should, in effect, be overruled. We must, however, decline this invitation. .-This case does not appear to be an appropriate vehicle for making such an important determination. While it seems evident that subsequent pan&s of the Grievance Settlement Board have, k dictum, retreated from the ratio of Re Keeling, e.g.,, - 12 - Re Lam and Ministry of Transportation and Communications, G.S.B. ---- No. 377/83 (Jolliffe); Re McGregor and Liar Control Board --- of Ontario, G.S.B. No. l/80 (Weatherill), it would seem that full- blown reconsideration of Re Keeling should await strong facts which necessitate determination of the issue: This would accord with the policy of the Grievance Settlement Board that one panel of the Board should be hesitant to refuse to follow the decisions of other panels. See.Re Bateman, G.S.B. No. 2/77 - In the present case, the facts do not require consideration of Re Keeling. In our view, it would not be inconsistent with the holding in that case to refuse jurisdiction of the second grievance,by virtue of the failure to comply with the mandatory time limits set forth in the Collective Agreement. The thrust of Section 18(2) (c) of the Collective Agreement appears to be to provide the employee with an opportunity to place "the matter" before the Grievance Settlement Board for final determination. In the present case, "the matter" undoubtedly is the suspension of the Grievor. The first grievance, which was processed in accordance with the grievance procedure of the Collective Agreement, sufficed to place this suspension before the Board. The second grievance was not at all necessary. As indicated earlier in this interim award, the most that the second grievance did was to add to the requested remedy a claim for lost wages and benefits. The second grievance did not alter the continuing nature of the first. It was common ground - 13 - between the parties that it was unnecessary for the Grievor to file a new grievance every time'he was notified that his suspension was being extended for another 20 days. There seems to be little doubt that it also was unnecessary for the Grievor expressly to add to the matter the specific remedial request that was made in his second grievance. By virtue of the legislative framework of the Crown Employees Collective Bargaining Act, the Board already possessed implied remedial authority to - grant such relief under the first grievance. The crown Employees: Collective Bargaining empowers the Board to make a final and binding decision upon the matter before it. In addition, there is provision for substituting a lesser penalty in discipline and dismissal cases, where.it is considered t-o be just and reasonable to a0 SO. 'In Re Polymer Corporation Limited (19591, 10 L.A.C. 51 (Laskin), affd. 26 D.L.R. (2d) 609 (Ont. H.C.X), affd, 28 D.L.R. (2d) 81 (Ont. C.A.), affd. 33 D.L.R. (2d) 124 (S.C.C.), a.similar type off legislative framework was recognized as an arbitral mandate for fashioning-effective remedies. Moreoever "following the reasoning in the Polymer decision, arbitrators have generally refused to conclude that their power to grant a remedy is precluded by the absence of a specific remedial request in a grievance or submission to arbitration." Brown & Beatty, ,Canadian Labour Arbitration, 2nd edition, at 60-61. Accordingly, it was unnecessary for the Grievor to file a second grievance to place before this Board his specific remedial request for lost wages and benefits. The first grievance sufficed to place this aspect of "the matter" - 14 - within our reach. ., : ,, : The first ground of preliminary objection is allowed to the extent already indicated in this interim award. The second ground of preliminary objection is allowed, and the second grievance is dismissed for want of jurisdiction thereof, The parties are directed to contact the Registrar of the Grievance Settlement Board for the purpose of setting down a second day of hearing in this matter at the earliest possible moment. .DATED at I,ondon, Ontario this 21st day of' August, 1984. 2 ,/Y, /5&;-l&4/~ D. B. Middleton, Member ,: