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HomeMy WebLinkAbout1984-0102.Smith.87-05-14BETWEEN: BEFORE: IN THE MATTER OF AN ARBiTRATION - Under - . FOR THE GRIEVOR:' I ., FOR THE EMPLOYER: t!EARING: THE CROWN EMF'LOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEKENT BOARD OPSEU (Donald Smith) . -.And - .The Crown in Right of Ontario (Ministry of Health) R. J. Roberts Vice-Chairman P. Craven Member M. O'Toole Member k, Anand Counsel Cavalluzzo, Hayes & Lennon Barristers & Solic~itors M. Quick Counsel Legal Services Branch Ministry of Health May 7, 1984 102184 Griever Employer . . DECISI0.N This is a matter whose resolution was delayed for a considerable period of ~time pending final disposition of the proceedings in Re Miller and MacPhail, G.S.9. #530/82 & 531/82 (Verity). On March 2, 1987, the Board issued a decision which disposed of the issues in that case, and we now proceed to deal with the matter at hand. In the present case, the grievor was a member of the unclassified service who was employed under a limited-term contract as an Ambulance Officer 2 with the Ottawa-Carleton Regional Ambulance Service. In his grievance, he claimed that he was dismissed without just cause. For reasons which follow, this grievance is allowed. At the hearing, the Ministry objected to jurisdiction and when we dismissed this objection, declined to present any evidence touching upon .the merits of the case. The evidence presented by the Union established the following facts: On September 5, 1979, the grievor joined the Ottawa-Carleton Ambulance Service as an Ambulance officer 2. It was the griever' s decision to accept employment in this position under a limited-term contract. He testified that he was offered a full time job but because he wanted to complete the nursing prografrze at a local university, he opted to kCCOW2 a member of the 2 unclassified service. In the course of this contract, w‘nich lasted for at least one year, the grievor worked considerable overtime. Subsequently, the. griever's ,employment was continued through a series of limited-term contracts until September 12, 1983. On average, the grievor worked 24 hours per week. J At the same time, the grievor continued his stud&s. Ee received his ~Baocalaureate of Science in Nursing from the University of Ottawa in 1983 and was duly registered with the Ontario College of Nurses. He also took'several undergra.duate courses at the. university b'eyond his degree“requirement'. .'. These were primarily in the areas ,of psychology and physicology and furthered.what was shown to be'a strong and long-lasting interest in basic and emergency health care.Y' On September 12, 1983, the grievor entered into what was to be the final.extension of his contract. This was to be for' a period of three months, expiring on December 12th of that year. At about the save time, he began taking an introductory 1. The griever's resume, -which was entered into evidence at the hearing, showed.that from about 1975 onward, the qrievor had been an instructor or participant in a muititude of training programs, training courses and workshops primarily having to do with ambulance and e.mergency care. This resume also indicated tha: he had prepared a research aa?er .in the area of epidemi31;qy and was cmpioyed at the time of the hearing as a hart time~rlinicai Instructor in the Algonquin .~bUianCP and S.merger,cy Care ?rogram. E;idemioloTj course in t!-,e Master cf Eealth Administration Programme offe:ed at the University of Ottawa. He also entered a competition which was opened up for a full tiae Ambulance Officer 2 in the classified staff of the Ambuiance Service. As it ha?Rened, entering this competition was a fateful step for the grievor. On the evening of Sunday, September 18, Ms. seather MacRae, the Assistant t?anger of the Ambulance Service, ieft a message fcr the grievor advising him that his intervies; was scheduled for Thursday, Septembe: 22. When the grievor received this message on the following day, he sought to contect Ms. EacRae to change the date of the interview because it wouid conf'ic* . . with a meetir.g of his class in Qidemiology. He was ;Inable to reach Ms. MacRae until Tuesday and when he did, she denied his req-est. The grievor then spoire to Nr. C. B. Thomson, another Assista.?: Xanager with the service, in an attempt tc exchange his interview date with that of another applican:. Mr. Thomson refused him permission to do so. 'Jndaunted, the grievor decided to bring his request to mere senior managemen:. !!e first attempted to contact .Yr. J'. 3, McFwen, the Manager. of the Ambulance Service, but he was ,unavaiiabie. The griever t!-.en proceeded up ancther rung of :he management iadder, contacting Yr. 3. Forsythe, the Regicnal ?lana;er and "r . :?cZwen' s Supervisor. >!r. :or sv-he _ -.. seer.ei s:rr?.ratnet:c t2 z n e gri?vcr' s --CBA; -&qfT.- .---w-b and he ~c-ider~0c.k :: Tt was not long before sword filtered down. to Mr. Thomson. Later that same afternoon, Mr. Thomson called Mr. Smith t0 advise him that his .interview date would stay as assigned. He added that he and Ms. MacRae were upset with the grieVOr fOy going Over their heads like that. The grievor was assured, however, tha: the matter would not have any bearing-upon his assessement in the job competition. When Thursday, September 22 came; the interview did not go well. When the grievor spoke to~the Panel about his philosophy of care and the issues that faced ambulance officers in Ottawa, the members of the panel frowned and shook their heads as if they could not believe the things that the griever wa* saying. The grievor's performance in a mock emergency using a fellow ambulance officer as a patient brought a similar response from .~ Mr . MacRae and Mr. Thomson, who both were members of the panel.. .The grievor said that he thought perhaps they were "gunning" for . him, looking for ways to make life rougher for him. On the following Tuesday, September 27, the griever was called in to meet with Mr. Thomson and another Assistant Manager, i"lr. Terezopoulcs. Mr. Thomson told the griever that he had twc "bits" of bad news for him: first, t.1at the griever was 'dy.s'dccessf.2l - 1 -. the competition; -and, secondly, that the griever .5ad e0T.e SC ~COZl,- :.".a: the hbc:la:ce Service was going t 0 1". 2 :,. 3 to ie? him go. 'her. the Griever asked to see the results of t5.r IYr . Thcmson :hen gave the griever two letters. The first, which was dated September 25, constituted a formal notice that he was unsuccessful in the competition. The seccnd, dared September 25, read as follows: Nr. 3. Smith 79 l/2 Copernicus Ottawa, Ontario Re: Ccntract Termination Further to my letter of 23 September 1983, I regret t3 advise that during the Competi:ion your demonstrateo and recorded skills and knowledge were found to Se at an unacceptable level. Therefore this letter is to advise you that this is a formal termination notice 05 vour cu-ren- co-tract. ^ c . . Effective on receipt of-this letter you are required to return ail keys, clothing and equipment issued to you bv this S-days. Service which may be in your possession within C. 8. Thomson Assistant Nanager Ottawa/Carleton Regional Ambulance Service ThiS letter pxported to constitute a formal notice of termination of his ccntract, effective 'upon receipt of t.ze ietter. c Further to my letter of the 25th of September reference your con'.ract termination, vour c0ntract ,dili.be allowed to run it's course iili it's - expiry date 07 12 Oecember i9.!?3. On the 12th of December 1983 your contract will not be renewed. Effective on expiry of youi contract, you are required to return all keys, clothing and equipment issued to you by this service which may he in your possession~within~ five (5) days. F&T, ~~~., -, Ottawa Carleton Regicnal : Ambulance Service C3T/gm This-letter purported to revoke the termination of the grievor's contract and act as notification tbat upon expiry the contract would not be renewed.' After the grievor read the contents of this letter, he contacted Mr. Thomson and said to him that it looked like he would not be getting any more shifts‘. Mr. Thomson replied that it looked that way. As it turned out the griever wa;‘ right. :xe did not get any more shifts, even though he knew that'over-time ;hou:s were being allccated to full-time ambulance.atfsndants. September ?C, 1983 To Whom it May Concern Mr. IJ. W. Smith has been empioyed by the 0t:awa Carleton Xegionai Ambulance Service as an Emergency NediCal Care Assistant since 1980. ~urir.5 his tenure with this Ambulance Service he has aiternateiy performed the duties of both attendant and driver, on both a 24 hour and 40 hour contractual basis on an "as required" basis.' He presently holds vaiid Firs: Aid, C?R and an F class driver's licence. Mr. Smith has on file letters thanking him for his volunteer work in ins truction of First Aid to outside agencies. c. 9. Thomson Assistant Manager 0t:awa Carleton Regional Ambulance Service The grievor said that he found this letter to be unsatisfactory and asked to see Xr. McEwen. When he did, Mr. McEwen became quite upset and said that he would not give the grievor a letter of recommendation; that he had shown that he could not work in an organization because he went over the heads of Mr. McEwen and the Assistant Managers with respect to the interview date. The first issue to arise out of the above facts is whether the terminaticn 3 f the grievor was a dismissal within the meaning of s.19(2) of the Crown Emplovees Collective 3argaininCl AC',. We e0 r.ot hesitate to find that it was. In Re 3om?.er and Trembley and Ministry of Co:rectional -Xey,.i=eS, - = c- 2 . - . x0. 219:79 (?richard), t .z e 3oard salTi, in :ert:r.e:: ?art: 7 employment relationship as a dismissal for cause within the meaning,of section 17(2) CC) (now 19(2)(c)) of a 'termination' within the meaning of Article 3.3 of the collective agreement. To decide otherwise would be to abdicate cur statutory responsibilities under section 17 and 18 of the Crown Employees Collective Eargaining dct which charges us with the duty to decide a claim by an employee that he or she has been dismissed without just cause. Imolicit in that duty is a duty to delineate our .jurisdiction by determining in each case brought before us whether or not the facts amount ~.to - a dismissal or not. The Ministry may not deprive an employee of his section 17(2)(c) rights by calling a disciplinary dismissal a termination within the meaning of Article 3.~3. Similarly, an employee cannot gain greater righ,ts by calling a bona fide, termination a disciplinary dismissal in order to come~withinthe terms of section i7(2)(cY. :Rather, after hearing the evidence of all the circumstances surrounding the severing of the employment relationship this Board must decide upon the proper characterization of each case. For .those,cases characterized.as dismissals, the Ministry must be prepare,d to meet the requirements'of section 17(2). . . . Id: at ,p. 9~. - The Board ~has Iurisdiction ,to draw from the evidence a characterization which reflects the substance-of the actions of the Ministry. ;' L' ~__Y ../' Here, the actions of the Ministry amounted to a dismissal of the grrevor effective upon receipt of ,Mr. Thornson's-letter of September .26: ~Mr. Thomson's subsequent letter of September 28 -- . F. constituted no more than a transparent effort to change the form of its action, not-the substance. Nothing that mattered changed. AS far as tne Ministry was concerned, the griever was finished. :Ee was nor qcirzg to wor.k any ftirtkez shifts. Md he did not. Ix 'hi45 of no oonsequedce that the letter of Septem,ber 28 purported ~3 allow :hnis cpntrazt to r.dn to its expiry date of 3ecember 12. Fsr all inter.rs and zurposes, r'ne qjrlevc~r .N'~s dismissed. a Mcreove:, we find that this dismissai was without ];1st cause. On the evidence, it must be concluded that :he griever was dismissed because he went over the heads of his immediate superiors in an attempt to change his interview date. There does not appear to be any support for the claim male in Mr. Thomsor.'s letter of September 26 that the grievor's "skills and kcowiedge were...at an unacceptable level." ;o be ccr'rary, the griever .- was shown to possess impressive credentials in the fields of health land emergency care. TWC of his colleagues in the m.bu:ance service testifiez to his silperior skills and knowledge ad expressed their disbelief uPon hearing :+.e news that he had been terminated for incompetence. The Ministry declined to introduce any evidence to rebut the considerable case that was made for a high level of competence in the qrievor. While the griever might have been more cirCUmS?eCt in his efforts to change the date for his interview, his apparent lapse in observance of protocol can scarcely be regarded as cause for discipline, let alone dismissa:. AS far as the evidence disclosed, this 'rJas an isola:ed inciden: in ever three years of employment. The grievor had reasonable grounds for seeking to c:banqe his interview date. There was .no evidence that in a:temP:ing to ;or,tact icr . McEwen, the grLevor was seeking' to e.mba:rass ?. 1 s i.mmediate supericrs. Apparently, his efforts __-n_- Crm CT '-..-A ,-e.:-Lne -. concern for t .: e czz.r.iict between t .T e :nter.view azd ?.ii E?i<enislog-f class. It seems li;teiy :?a= 2 z-c-drsciPli?.ary reminder x0 cizserve ;rztcc:l 'n'as alL zhat wculd ':.j-.;e ret-y. ye-..; -PA --; >-A- _- ezs1re ?+.a: 7.5 s;r!lilar IaPses .woull ccc-r --_^__. L 3 10 AS to remedy, we have decided to order the griever's records to be cleansed of any reference to incompetence and award the. grievor damages in a lump sum, 'based upon the number of hours, including overtime hours, he reasonably expected to work in the course of the contract which expired on December 12, 1983. The grievor also will be entitled to 'interest upon this lump sum calculated in. accordance with the formula determined in &e Iiallowell Eouse Ltd. and Service Emplovees Int'l Union, Local E, (1980), 10 LRS Rep. 3~5. We will retain jurisdiction pending implementation of the terms of this award. _~ We decline to reinstate the grievor to' the position of Ambulance .Officer 2 under a limited term contract similar in natlure .to the ones he previously executed with the Ministry. In so doing, we acknowledge that in its final disposition of Miller L XacPhail on March 2, 1987, the Roard exercised its remedial jurisdiction under s. 19(l)' of the Crowns Emplovees Collective Barqaininq Act, inter alia, to reinstate the grievors for a period of time equivalent -to that which would have remained in their contracts if they had not~been dismissed. But this relief must be regardqd as extraordinary. Rarely will the Board be moved to reinstate a-- contract emplcyee after the actual expiration of his or her limited term cohtract. L! contract e.mployees who fall under Article 3 of the Crow. Emolovees Collective Sarqaining Act. Id. at op. 8-9. Section 8 requires that a ?Iinister or his or her designate must aspoint-- and hence, reappcint -- a person to the unclassified service. Section 5 requires that a contract employee ceases to be a public servant upon expiration of his or her contract. These two provisions present a formidable obstacle to reinstatement for dismissal without just cause under a limited term contract. Simply stated, the Soard is of the view that in the vast majori:y cf cases it ;tcuid exceed its lawful authorit. if it purpcrted to usur;, the Xinister's sower by attempting to place a grievor in a new contract of empioyment under the guise of reinstatement. The grievance. is aliowed and the matter is remitted to the parties for disgosition according to the terms of this decision. DATED AT London, Ontario this l‘ch day of "a-2 1987. ?:. O'Toole Re: CSB 102/84 (Smith) ADDENDUM I concur in Vice-Chair Roberts’ findings of fact, and also In the remedial award to the extent that it makes the grievor whole with respect to his limited-term employment. It is evident that the same employer wrongdoing that ~resulted in the grievor’s unjust dismissal also prejudiced him fatally with respect to his ap- plication for regular employment with the Ministry. While it cannot be certain that Smith would have been successful in his application for the Ambulance Of- ficer 2 job had it not been for the events that led to his wrongful. dismissal, the evidence discloses a strong presumption in his yavour. In such circum- sta,nces it would be just and equitable to supply a remedy that compensates the grievor‘ for the lost opportunity to receive proper consideration in ‘his applica- tion for employment in the classified service, as well as for his monetary losses occasioned by hls wrongful dismissal from the unclassified service. For this reason I must dissociate myself from Professor Roberts’ strictures about the limitation or remedy (at pages 10 and 11 of the aw’ard) in the specific circumstances or this grievance.