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HomeMy WebLinkAbout1984-0745.McMurter.85-02-21IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: - Before: For the Grievor: ' For the Employer: Hearing: OPSEU (M. McMurter) Grievor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer J.W. Samuels Vice Chairman ,J. McManus Member W.D. Shuttleworth Member I. Roland Counsel Gowling & Henderson Barristers & Solicitors . R.B. Itenson Senior Staff Relations Officer Staff Relations Branch Civil Service Commission January 29, 1985 PRELIMINARY DECISION 2 This is an important case, and it has given rise to an important preliminary objection by the Ministry. In brief, the grievor, who is a systems analyst at the Huronia Regional Centre, was appointed in July 1984 to be the campaign manager for the Simcoe North NDP Riding Association in the upcoming federal election. Immediately after his appointment, he consulted with management at the Centre, and it became apparent that he risked dismissal or serious discipline if he continued as campaign manager, because of the provincial policy concerning political activities of civil servants. Fearing such a penalty, he resigned as campaign manager. Then he grieved. The Union acknowledges that the grievor would have violated the policy, but intends to argue that the policy, insofar as it touched the grievor’s intended activities as campaign manager, is not in accord with the PuLVic Service Act, R.S.O. 1980, ch. 418; or if the policy is valid under the Act, that the AcC is contrary to the Canadian Chafter of Rights and freedoms. This argument in substance remains to be made in detail. At our hearing, the Ministry raised a preliminary objection, and we agreed to issue a written decision on the point before hearing evidence and argument concerning the Union’s case. It is the Ministry’s position that there has been no discipline, because the grievor resigned as campaign manager before any action was taken by the Ministry. This being the case, this Boards has 60 jurisdiction to hear the matter, because our jurisdiction comes from the Crown &??p/oyees Co//ective Bxg&iflg Act, R.S.O. ch. 108, and there is nothing in this legislation which gives the Board jurisdiction in such a case. “(2 i ,:* 3 Let us look at the matter in more detail now. The grievor tias appointed as campaign manager on July 19, 1984. The next day, he met with his immediate supervisor, Mr. J. M. Livesey, Director of Financial and Administrative Services at the Centre, and informed Mr. Livesey of the appointment. Mr. Livesey pulled out the Policy Manual, and showed the grievor the two pages dealing with “Political Activities”. On the first page, there appeared clearly the following: “PENALTY Contravention of any provisions of the Public Service Act governing political activities will be considered sufficient cause for dismissal. FEDERAL/ PROVINCIAL Except during leave-of-absence granted to a candidate in a federal/provincial election an employee shall nat: I. Canvass on behalf of, or actively support, a federal/provincial candidate or party. then continuing on the second page 2. Be a candidate in an election. 3. Solicit funds. , 4. Associate his/her position at work with .any political activity. 5. Express in speech or writing to the public, any matter that forms part of the platform of a party or candidate.” The grievor explained generally what activities heintended to engage in during the campaign, and said that he could avoid all the injunctions but the prohibition of “actively’supporting” a candidate. Mr. ,~ 4 Livesey expressed the opinion that the grievor’s position as campaign manager would constitute “actively supporting” a candidate and thus would contravene the policy. The two agreed to meet again with Mr.~D. Cornish, the Administrator of the Centre. This meeting of the three men took place on July 23, and management confirmed its view that acting as campaign manager would contravene the policy. Messrs. Cornish and Livesey undertook to get a legal opinion from Queen’s Park. On July 25, Mr. Livesey sent the following brief~memorandum’to the grievor: I have to advise you that being campaign manager for a candidate in the upcoming federal election would clearly violate the Ministry and Province’s policies on political~activity. A civil servant, except during a leave of absence, shall not “actively support a federal candidate or party”, and managing a campaign would certainly be active support. The Union acknowledges that the view expressed in this memorandum is correct, The griever’s position as campaign manager would have involved “actively supporting” a candidate. On July 26, the grievor summarized these events in a memorandum to Mr. Livesey. .On July 27, the grievor resigned as campaign manager;explaining to the president of the riding association that the position would contravene his conditions of employment under the Pu&/ic Service Act. That day he wrote a memorandum to Mr. Livesey, which he gave to Mr. Livesey on Monday, July 30, which read: In compliance with your memo of July 25, 1984 : i 5 regarding “Political Activity”, please find enclosed a copy of my resignation as Campaign Manager of the Simcoe North Riding Association for the upcoming federal election. I intend to grieve this directive because I believe the interpretation of the policy is unreasonable or the policy is unreasonable or contrary to law. The grievance was filed on July 30. The Statement of Grievance reads: the interpretation of the policy on “Political Activity” is unreasonable or the policy is unreasonableorcontrarytolaw. And the Settlement Required reads: -a declaration that the policy on “political Activity” be rescinded -a declaration that the employer wrongfully prohibited me from engaging in political activities during the federal election -an injunction prohibiting the employer from interfering with my right to engage in political activities -general and punitive damages Now, the Ministry argues that there was no discipline and therefore this Board has no jurisdiction to entertain this grievance. There does appear to be no relevant source of jurisdiction other than section 18(2)(c) of the Crown Emphyees Co//ective Bargainiflg Act, and the Union pointed to no other source. This sub-section provides that: In addition to any other rights of grievance under / a collective agreement, an employee claiming, (c) that he has been disciplined or dismissed or suspended from his employment without just cause, 7, I 6 may processsuchmatterinaccordancewiththe grievance procedure provided in the collective agreement ,.._,._... As this Board put it in Ha/aday, 9#/78 tat pages 3-4): . ..our jurisdiction is statutory only.......We have no other authority to intercede between the parties; we do not have any inherent jurisdiction to do justice--or what we may conceive to be justice--or to provide remedies, no matter how desperately a particular case may cry out for relief. The Board is a creature of the statute, and derives its jurisdiction solely from the statute. The only exception to that rule is that the parties may provide for certain matters in a collective agreement, and our jurisdiction is thus broadened to the the extent they have done so. in Cloutier, 20/76, and Nail, /06/77, the Board held that not every adverse communication to an employee was disciplinary. To be ‘“disciplinary” there had to be a prejudicial effect on the employee’s position in future grievance proceedings, in the sense that the communication was being used to build up a record against the employee. Generally, we agree with these earlier decisions. However, the case before us raises a different point. Here it is clear that the grievor and Messrs. Comish and Live&y realized they were caught in the web of a clearly expressed policy, which trumpeted out that the grievorsposition as campaign manager “will be considered sufficient cause for dismissal”. There is really no doubt that the grievor ran a terrible risk in remaining as campaign manager. He was on the horns of a dilemma. Did he have to wait for the sack before grieving? Or if he resigned as campaign manager, did he lose his right to grieve and to challenge the policy because the axe had not yet fallen? 7 in Re McKay and the Crown in Right of Ontario Plini’stry of Nufthern Affairs/ (I 981),28 L.A.C. (2d) 441, this Board decided that a grievor in a similar situation to our grievor could proceed with his grievance, and that the Union could continue with the matter after the grievor had quit his position with the Crown. In that case, the grievor had received an order to resign as president of his riding association or be fired. He resigned under protest. The Board dismissed a preliminary objection to its jurisdiction and proceeded to decide the matter in substance,thoughitrefusedto determinethatthematter was disciplinary. The Board held that it could “determine the real issue between the parties”, and that it had jurisdiction on the basis that the Union had a legitimate interest in questioning the propriety of the order given to the grievor (at page 445). In other words, the Board did not found its jurisdiction on the statutory powers of the Board or on any particular provision in the collective agreement. in this respect, in our view, the Board in McKay erred. This point has been made earlier in Su/livan, 57W81, wherein the Board expressed the view that the McKay award “may have put the matter too broadly in basing its jurisdiction on the ground stated”. However, ‘in Sullivan, the Board was of the view that the issue in McKay “was in substance a disciplinary question” (at page 12). We agree. In our view, where the reality of the situation is that, pursuant to a clearly expressed policy, the grievor obviously faces serious disciplinary action or dismissal, the issue is in substance a disciplinary question, though the grievor has now changed his position so as not to contravene the policy. The grievor need not put his head on the block and have it severed before gaining theright to question the just cause of the 8 discipline. As the axe is about to fall, he may recant, but challenge the election to which he was put. In effect, the grievor knew that he had to resign as campaign manager or face serious disciplinary consequences. This is not the same situation as the Board faced in Sullivan, where the Union filed a policy grievance.against the Liquor Controi Board of Ontario’s policy prohibiting the wearing of blue jeans. There had been an individual grievance over an order not to wear blue jeans at work, under threat of discipline, but it had been settled. The Grievance Settlement Board decided that it had no jurisdiction to hear such a grievance because it was simply a general challenge to a rule established as an exercise of management rights. The reasonableness of such rules may be put in issue where discipline is based on them, but it would, we think be beyond the jurisdiction of this Board to enter into an enquiry as to their reasonableness as a “policy” matter, however genuine the union’s interest in such question might be. In our case, however, the grievor was already the campaign manager. Though neither Mr. Livesey nor Mr. Cornish had expressly threatened discipline, the policy was clear, There was no doubt that the grievor would face serious discipline, or dismissal. It is the apparent inevitability of the impending discipline, combined with the gravity of the impending penalty, which turnsthis situation into one which is “disciplinary in substance”. / 9 For these reasons, we find that we do have jurisdiction to hear this matter, pursuant to section 18(2)(c) of the Crown Employees ,Co//ective Bargaining Act. The Board will reconvene to hear evidence and argument on the merits of the grievance. Done at London, Ontario, this 21st day,of February , 1.985. “J.D. McManus" J. McManus, Member I, W.D. Shuttleworth" W. D. Shuttleworth, Member