GSB#2007-1045, 2007-3394
UNION#2007-0434-0002, 2007-0434-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Halsall)
Union
- and -
The Crown in Right of Ontario (Ministry of Agriculture, Food, and Rural Affairs)
Employer
BEFORE
Felicity D. Briggs
Vice-Chair
FOR THE UNION
Mark Barclay Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Len Hatzis Ministry of Government Services Counsel
HEARING
September 5, 2008.
Decision
1On April 17th, 2007, Brent Halsall, a Bee Inspector with the Ministry of Agriculture, Food and Rural Affairs, wrote to the Deputy Minister posing a question. He wrote, in part:
At a recent training session of the Bee Inspectors of OMAFRA’s Food Inspection Branch, it was brought to my attention that as a Bee Inspector working for OMAFRA and as President of the Ontario Beekeepers’ Association (OBA), there may be an appearance of a conflict of interest. I was requested by my program manager, Mr. Robert Forrest, to write to you on this matter.
2On April 23, 2007, in response, Bruce Archibald, the Deputy Minister wrote the following, in part:
Based on the information provided, I do believe that your duties as president and a member of the board of directors of the OBA place you in a conflict of interest situation as it relates to your role as a Ministry employee. As you have indicated, the OBA receives funding from the Ministry and on this basis alone the conflict exists.
There is also a conflict of interest through a reasonable perception that confidential information obtained during your employment with the Ministry could be disclosed to the OBA pursuant to your duties as President and board member.
Accordingly, I am requesting that you decide which of your activities you wish to continue.
3When the Deputy Minister had not received any indication as to the grievor’s intentions by May 16, 2007, he again wrote to Mr. Halsall. That note said, in part:
In my April 23, 2007 letter I requested that you decide whether you wished to continue as President of the OBA or as an employee of the Ministry. In light of the meeting with the Minister I am now directing you to make that choice and advise your manager of your choice on or before May 24, 2007.
Failure to comply with the direction of this letter and/or the Conflict of Interest and Post-Service Directive could lead to a disciplinary action up to and including termination of employment.
4Mr. Halsall did resign his position as President of the OBA and filed a grievance on May 28, 2007 that alleged the Employer had “arbitrarily and without due consideration instructed (me) to give up (my) position as president and director of the Ontario Beekeepers’ Association”.
5In the fall of 2007, Mr. Halsall again wrote to the Deputy Minister with an inquiry. That communication, dated October 9, 2007, stated, in part:
I am a Bee Inspector working in Food Inspection Branch. I am considering entering into a situation that, while I feel there is no conflict of interest (COI), I am hesitant to move forward on given OMAFRA’s rulings in the past.
….The situation that I am considering entering is as representative to the Canadian Honey Council (CHC). Traditionally the past president of the Ontario Beekeepers’ Association (OBA) becomes the next representative to the CHC, a national organization representing the Canadian beekeeping industry. As a representative to the CHC I would not sit as a Director of the OBA. I would however represent the OBA’s position to the CHC. I would like to know if this is a COI and if so, in what sense?
6The Deputy Minister asked two questions regarding the responsibilities of the position at issue and the grievor provided further information in that regard. On November 30, 2007 the grievor received his answer. Mr. Archibald stated, in part:
Based upon the information provided and additional information from the CHC website, I believe that as the OBA representative to the CHC that you will be involved in discussions of policies, financial matters, etc. that are relevant to the OBA and beekeepers and which may also be matters that this Ministry is considering from the perspective of the Crown. Therefore, I do believe that there is a conflict or interest and you should not represent the OBA at the CHC while you are a public servant.
7Shortly thereafter, Mr. Halsall filed a second grievance alleging that the Employer “has arbitrarily and without due consideration denied me permission to represent the Ontario Beekeepers’ Association at the Canadian Honey Council claiming it to be a conflict of interest.
8At the first day of hearing the Employer raised a preliminary objection that this Board is without jurisdiction to hear and determine this matter. Full submissions were provided by both parties and this decision deals only with this motion.
9Relevant provisions to consider are:
Ontario Regulation 435/97 (in effect at the time of the filing of the first grievance)
Prohibited Conduct
- (1) A public servant shall not disclose confidential information obtained during the course of his or her employment in the service of the Crown to a person or entity unless the public servant is authorized to do so by law or by the Crown.
(2) A public servant shall not use confidential information in a business or undertaking outside his or her work for the Crown.
(3) A public servant shall not accept a gift directly or indirectly in exchange for disclosing confidential information.
- (1) When performing his or her duties to the Crown, a public servant shall not give preferential treatment to any person or entity, including a person or entity in which the public servant or a member of his or her family or a friend has an interest.
(2) When performing his or her duties to the Crown, a public servant shall endeavour to avoid creating the appearance that preferential treatment is being given to a person or entity that could benefit from it.
(3) A public servant shall not offer assistance to a person or entity in dealing with the Crown other than assistance given in the ordinary course of the public servant’s employment.
- A public servant shall not become employed by or engage in a business or undertaking outside his or her employment in the service of the Crown in any of the following circumstances:
(1) If the public servant’s private interests in connection with the employment or undertaking could conflict with his or her duties to the Crown
(2) If the employment or undertaking would interfere with the public servant’s ability to perform his or her duties to the Crown
(3)If the employment is in a professional capacity and is likely to influence or detrimentally affect the public servant’s ability to perform his or her duties to the Crown.
10Regulation 381/07 came into affect after the filing of Mr. Halsall’s first grievance but prior to the filing of the second. It states, in part:
Prohibited Conduct
Disclosing confidential Information
- (1) A public servant shall not disclose confidential information obtained during the course of his or her work for the Crown.
(2) A public servant shall not use confidential information in a business or undertaking outside his or her work for the Crown.
(3) A public servant shall not accept a gift directly or indirectly in exchange for disclosing confidential information.
Giving Preferential Treatment
6.(1) When performing his or her duties to the Crown, a public servant shall not give preferential treatment to any person or entity, including a person or entity in which the public servant or a member of his or her family or a friend has an interest.
(2) When performing his or her duties to the Crown, a public servant shall endeavour to avoid creating the appearance that preferential treatment is being given to a person or entity that could benefit from it.
(3) A public servant shall not offer assistance to a person or entity in dealing with the Crown other than assistance in the ordinary course of the public servant’s employment.
Engaging in business, etc.
(1) A public servant shall not become employed by or engage in a business or undertaking outside his or her employment by the Crown in any of the following circumstances:
If the public servant’s private interests in connection with the employment or undertaking could conflict with his or her duties to the Crown.
If the employment or undertaking would interfere with the public servant’s ability to perform his or her duties to the Crown.
If the employment is in a professional capacity and is likely to influence or detrimentally affect the public servant’s ability to perform his or her duties to the Crown.
If the employment would constitute full-time employment for another person however, this paragraph does not apply with respect to a public servant who is employed part-time by the Crown. This paragraph also does not apply with respect to a public servant who is on authorized leave of absence from his or her position, but only if the employment is not contrary to or inconsistent with the terms of the leave of absence.
If, in connection with the employment or undertaking, any person would derive an advantage from the public servant’s employment as a public servant.
If government premises, equipment or supplies are used in the employment or undertaking.
Participating in decision-making
- (1) A public servant shall not participate in decision-making by the Crown with respect to a matter that the public servant is able to influence in the course of his or her duties if the public servant could benefit from the decision.
(2) Subsection (1) does not apply if the public servant obtains the prior approval of his or her ethics executive to participate in decision making by the Crown with respect to the matter.
(3) A public servant who, in the course of his or her employment in a ministry, is a member of a body or group shall not participate in, or attempt to influence, decision-making by the body or group with respect to a matter if the public servant could benefit from the decision or if, as a result of the decision, the interests of the body or group could conflict with the interests of the Crown.
(4) A public servant described in sub-section (3) shall inform the body or group if the circumstances described in that subsection exist.
11The Collective Agreement provides:
Article 2 – Management Rights
2.1 For the purpose of the Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training an development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.
Article 21 – Discipline and Dismissal
21.1 It is understood that the right of the Employer to discipline or dismiss employees shall be for just cause. The Employer’s right to discipline or dismiss is subject to the right of an employee to grieve such action.
12There were a few facts asserted during the argument on this motion that appeared to be common ground. First, the grievor was the president of the Ontario Beekeepers’ Association while holding the position of Bee Inspector with the Employer. In his position as President of the Association he received a small honourarium in that position. Further, the Association receives funding from the Ontario government.
EMPLOYER SUBMISSIONS
13It was the Employer’s position that this Board is without the jurisdiction to hear and determine the two grievances filed by Mr. Halsall. A review of the facts in this case and Board jurisprudence can lead to no other conclusion according to Mr. Hatzis, counsel for the Employer.
14The Employer submitted that the Board’s jurisprudence is clear that there can be no review of a management right unless some other provision of the Collective Agreement has been breached. It is noteworthy that there is no article of the collective agreement upon which the grievor refers on the face of the grievance. The lack of such specificity is conspicuous by its absence.
15Mr. Hatzis contended that the Deputy Minister has the right to make decisions regarding potential conflicts of interest according to the Public Service Act. Regulations 435/97 and 381/07 provide the legal framework that supports the Employer’s view. The Employer has promulgated a Conflict of Interest Directive which complements those regulations.
16By contrast, there is no provision of the Collective Agreement regarding Conflicts of Interest. Neither the Union nor the grievor have provided a contractual basis for this dispute. It was the Employer’s assertion that if the parties intended that this Board could review the appropriateness of Employer rulings regarding Conflicts of Interest, the Collective Agreement would have to contain such a provision. It does not. Accordingly, the Board is without jurisdiction to entertain these grievances. Further, the Board is not able to review whether the Employer gave the grievor’s situation sufficient consideration as has been requested on the face of the grievance.
17The Employer noted that the Board’s jurisprudence in this regard has evolved since the 1990s. However, it is now settled law that there must be a link between the management’s rights clause and some other provision of the Collective Agreement for the matter to be arbitrable. The Employer conceded that the Board has, in the past, considered various matters arising from the Employer’s Conflict of Interest policy. However, those cases were properly considered because there were also allegations of violations of Collective Agreement provisions such as discrimination based on marital status or discipline without cause.
18In response to a question Mr. Hatzis stated that the “Obey now and grieve later” doctrine can only come into play when there is a violation of the Collective Agreement. Absent an allegation of a breach of a specific provision of the Agreement the Board without the jurisdiction to hear the grievances on their merits.
19Anticipating the Union’s position, the Employer submitted that Article 21.01 is not a “link” to the management’s rights provisions of the Collective Agreement sufficient so as to provide this Board with jurisdiction. It cannot be forgotten that the grievor received no discipline. Anticipation of, or the potential for, discipline is not a violation of the Collective Agreement. Accordingly, absent some direct or inferential impact of a provision of the collective agreement this Board cannot seize jurisdiction. In that regard, Mr. Hatzis directed the Board’s attention to the comments of Vice Chair Dissanayake in Re Ministry of Community and Social Services & OPSEU (Barillari), GSB#2002-2390 (Dissanayake). In that matter two letters of counsel were at issue. At paragraph 62 of that decision he said:
Certainly, if the grievor repeats the conduct which was the subject of the letters, the employer may take disciplinary action, as union counsel suggests. In that event the employer will be obligated to establish just cause in the event the discipline is grieved. However, that does not have any relevance to whether the letters are themselves disciplinary. The employer is entitled to initially attempt to correct an employee’s conduct in a non-disciplinary way. As the Board observed in Re Black, that is to be encouraged. If the non-disciplinary approach does not produce the corrective results, it is open to the employer to initiate a disciplinary response. The non-disciplinary letters etc will not form a step in the progressive discipline system, but may well serve to establish that the grievor was made aware of the employer’s expectations of the employee, should that be an issue.
20The Employer also relied upon Re The Crown in Right of Ontario (Ministry of Attorney General) & OPSEU (Naik), GSB# 108/77 (Swinton); Re The Crown in Right of Ontario (Ministry of Revenue) and OPSEU (Cloutier) GSB# 20/76 (Beatty); Re The Crown in Right of Ontario (Ministry of Revenue) & OPSEU (Black) GSB# 885/90 (Dissanayake); The Crown in Right of Ontario (Ministry of Environment & OPSEU (Dobroff et al) GSB# 2004-0905 et al (Dissanayake); Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Samsone) GSB# 2004-2855 et al (Harris); and Re The Crown in Right of Ontario (Ministry of Environment) & OPSEU (Lesieur et al) GSB# 2002-1756 (Briggs).
UNION SUBMISSIONS
21Mr. Barclay, for the Union contended that it has been long established at common law that the threat of a dismissal can be construed as dismissal itself. Article 21.01 allows the Employer to discipline, but such action is subject to the grievance procedure. That provision is the necessary nexus that obliges this Board to take jurisdiction of Mr. Halsall’s two grievances.
22According to the Union, it would make no labour relations sense to find for the Employer in this motion. The grievor complied with the Deputy Minister’s order and by doing so avoided certain discipline. He chose to obey the order and grieve it after compliance. To now disallow him the ability to challenge the Employer’s application of the Conflict of Interest Policy would, simply put, send the wrong message. Indeed, it would leave a question as to whether employees must disobey directions from the Employer in order to have a matter that begs arbitral review adjudicated.
23The Union submitted that what separates these facts from the majority of cases put forward by the Employer is that the grievor was directed, in writing, to quit his employment or resign his Association position or he would be disciplined. That order sets into play Article 21.01 of the Collective Agreement and gives this Board the jurisdiction to hear and determine that matter.
24This case can be distinguished from Re Barillari (supra) because Mr. Halsall was not being instructed to correct his behaviour. Instead he was told to make a choice and advise his manager. It was made very clear that failure to do so would result in consequences up to and including the termination of his employment.
25Other cases proffered by the Employer consider situations where the parties agreed that there was no explicit provision in the Collective Agreement that had been breached. In the instant matter the Union contends that Article 21.01 of the Collective Agreement has been violated.
26In support of its view the Union relied upon Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Belanger) GSB#1999-1782 et al (Harris); Re The Crown in Right of Ontario (Ministry of Health) and OPSEU (Edwards) GSB#1994-2216 (Finley); and Re The Crown in Right of Ontario (Ministry of The Solicitor General and Correctional Services) and OPSEU (Cassidy) GSB#1996-1456 (Leighton).
27Mr. Barclay asserted that the mere fact that certain conduct is considered in Regulations does not, in and of itself, mean that arbitral review of that conduct is beyond this Board’s jurisdiction.
EMPLOYER REPLY
28In reply, Mr. Hatzis noted that the letter sent to the grievor stated that disciplinary action “could” be taken. There was no automatic discipline set out in any communication between the Deputy Minister and the grievor. There can be no question that a threat of discipline is not discipline imposed. Further, in the second letter that Mr. Halsall relies upon discipline is not mentioned. The Employer has simply engaged in its right to correct the grievor’s conduct in a non-disciplinary fashion.
29In conclusion the Employer urged that Article 21.01 is not sufficient for this Board to take jurisdiction. There is nothing to be found at that clause, or indeed any other provision of the Collective Agreement that infers or implies a right upon the grievor that would allow this Board to review the Conflict of Interest policies of the Employer.
DECISION
30In contrast to much of the jurisprudence provided, there does not appear to be disparity between the parties regarding the issue of whether there must be some provision of the Collective Agreement alleged to have been violated (other than Management Rights) in order for this Board to take jurisdiction of these grievances. Rather, the issue that separates the parties is whether the two letters sent to the grievor are discipline and therefore a violation of Article 21.01. Indeed, in written submissions provided subsequent to the hearing into this matter, the Union distinguished this case from Re Belanger et al (supra) wherein the Board refused jurisdiction to hear grievances regarding whether the Employer was required to provide uniforms to Correctional Officers. In this regard the Union stated that “[Belanger] differs from Mr. Halsall where clearly Article 21 was triggered both by intent and implication. In the case of Belanger the Employer was alleged to have breached its own clause (Management rights), whereas in Mr. Halsall’s case the Union is alleging Management’s actions violated the grievor’s rights under article 21.” It interesting that the Union also conceded that the grievor is “challenging the Ministry’s interpretation of the Conflict of Interest Guidelines and, by inference threatening discharge to enforce their ruling.”
31I therefore turn my attention to whether the two letters received by the grievor set out above, are disciplinary in nature and therefore subject to the provisions of Article 21.01.
32Vice Chair Dissanayake considered the matter of what constitutes discipline in Re Black (supra). In that case, the grievor, a senior auditor received an memorandum that stated, in part:
You agreed that it was a mistake and apologized for it. I accepted that, but emphasized the seriousness of what you had done and that any future incident of this nature will be considered insubordination and appropriate disciplinary action will be taken.
33In considering the Employer’s preliminary objection that the above letter was one of counsel and not discipline and therefore beyond the jurisdiction of this Board to review, Vice Chair Dissanayake said, at page 6:
It is common ground that this grievance is arbitrable only if the memorandum in question can properly be characterized as “discipline”. This Board, while granted jurisdiction over disciplinary matters, has no overall power of review of management interaction with its employees.
In this case, the memorandum on its face is not disciplinary, in that it does not purport to punish the grievor for his conduct on March 21, 1990. The evidence about what occurred at the meeting clearly is that the Employer expressed concerns about the grievor’s conduct on that day and explained to him that he should not engage in similar conduct in the future. The fact that the employer emphasized that any future incident of this nature will be considered insubordination and appropriate disciplinary action will be taken (a fact confirmed in the memorandum) by itself does not make the meeting or the memorandum disciplinary in nature.
(At page 8) ….. While some employees, like the grievor, may not like verbal or written communication by supervisors about their conduct or performance, the Employer does have the right to correct employees through guidance, counseling or even warning without engaging in disciplinary action. The exercise of that right is to be encouraged rather than discouraged.
34Vice Chair Dissanayake again considered the matter of discipline in Re Barillari (supra). The grievor in that case was given two letters of counsel that, in part, particularized the Employer’s expectations regarding her behaviour and criticized certain recent events involving the grievor. In determining that the letters were not discipline, it was noted that while the grievor was distressed with the information provided in the letters, her displeasure with the correspondence is not the test to be applied. It was also stated that because the grievor was told her conduct was inappropriate and ordered to behave appropriately was not necessarily suggestive of discipline.
35It was said in Re Cloutier (supra) that when an employee is advised that they may be disciplined in the future “it is implicit in such an admonition that such an appraisal is not being made at that time”. Further, it was said that “the employee is simply being forewarned that such an appraisal is a distinct possibility if certain conduct about which the employer complains is not rectified.”
36I agree with all of the above comments regarding what constitutes discipline. I have reviewed at length the letters written to the grievor in April and May of 2007 by the Deputy Minister. Simply put, I am of the view that neither letter constitutes discipline. Mr. Halsall asked the Deputy Minister for his view about whether a Conflict of Interest existed. He was given an answer to his query. The Deputy Minister made clear what conduct the Employer expected and told the grievor to make an election. When that action was not undertaken with sufficient haste for the Employer, the grievor was “directed” to make his choice and he was told what would happen in the event he failed to do so. As noted in the Re Cloutier case, being forewarned of possible outcomes for failure to comply with direction does not, in and of itself, constitute discipline.
37The letter of November 30, 2007 which is contemplated by the second grievance is even more innocuous. In response to a further inquiry, the Deputy Minister merely communicates that he is of the view that he believes a Conflict of Interest would arise if the grievor took a certain elected position. There is no mention of consequences in the event his opinion is ignored.
38As a result, there has been no violation of Article 21.01.
39While I have some sympathy for the Union’s frustration and contention that it makes little labour relations sense to force an employee to disobey the Employer’s direction bringing about a result of discipline in order to review a Conflict of Interest policy, there is nothing in the Collective Agreement that would give this Board the jurisdiction to hear and determine these grievances.
40For all these reasons, the Employer’s preliminary objection that the Board lacks jurisdiction to deal with these matters is upheld and therefore the grievances are dismissed.
Dated at Toronto this 3rd day of February 2009.