GSB#2014-4813

UNION#2015-0205-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Stevenson)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Daniel A. Harris

Vice-Chair

FOR THE UNION

Billeh Hamud Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 14, 2015

Decision

The Proceedings

1This is a decision dealing with an application by the employer to dismiss the grievance without a hearing on the basis that there is no prima facie case.

2In this matter the union grieves on behalf of Michael Stevens. The grievance is dated January 29, 2015. The Statement of Grievance reads as follows:

I grieve a violation of Article 21 of the Collective Agreement and any other policy, article, or legislation that may apply in this circumstance.

3The settlement desired on the face of the grievance indicates the nature of the grievance. It reads as follows:

The grievor requests the following:

1. A letter of apology from management for the poorly handled WDHP Investigation.

2. The decision from the WDHP Investigation to be reversed and the letter removed from my file.

3. For the difference in pension between my current retirement date and my planned retirement date of November 2016 to be paid to me.

4. To be made whole by an arbitrator at a later date.

4On August 21, 2015 the union provided the employer with the following particulars:

Mr. Stevenson (“The Grievor”) is a Senior Staff Development Officer employed by the Ministry of Community Safety and Correctional Services (MCSCS – “the Employer”).

The Grievor has worked in the OPS since November 1982; he has 33 years of service as an OPS Employee.

The Grievor has no prior discipline on his record.

In November 2014, the Grievor was first informed that there were vague allegations of inappropriate comments made while he was instructing the new recruits in April/May 2014.

The Grievor alleges the following:

o There was no disclosure provided to the Grievor to make him aware of the specific comments made, to whom, at what time and whether or not anyone else could corroborate them

o As a result, there was no opportunity provided to the Grievor to explain the circumstances surrounding that particular class, nor the specific mitigating circumstances facing him at that time

o The Grievor was seeking medical care at the time of the alleged conduct

In January 2015, the Grievor was informed that, pursuant to a completed WDHP investigation, the Employer had determined that there were allegations of misconduct that violated the above-mentioned policy and the Employer intended to terminate the Grievor’s employment. The Grievor never received a copy of the WDHP report.

The Grievor elected to resign at the end of February 2015 rather than grieve termination and face litigation. This was one (1) year and seven (7) months earlier than his planned retirement date of November 2016.

The Grievor submits that the WDHP investigation was seriously flawed. He asserts that had he been given a meaningful opportunity to respond to the allegations the outcome would not have been termination.

The Grievor is seeking the following remedies: A declaration that the Employer’s WDHP investigation was flawed; and compensation for the monetary losses sustained with respect to his early retirement.

5As is the normal course in an application of this nature, the facts asserted by the union are to be taken as true. The particulars and grievance set out above provide the four corners of the union's facts.

6As set out in the particulars, the grievor is a 33-year employee Ministry of Community Safety and Correctional Services. He was employed as a Senior Staff Development Officer. In November 2014 the grievor was informed of vague allegations of inappropriate comments made during the training session while he was instructing new recruits in April/May 2014. The grievor was later informed that his employment was going to be terminated because the allegations had been substantiated. On January 6, 2015, approximately three weeks prior to the date of the grievance, he sent the following letter of resignation to the employer:

I request to commence vacation on January 12, 2015 and use vacation credits until February 27, 2015 at which time I will retire.

As I have never been in this position before I hope this is sufficient.

7At the time the grievor was informed that his employment would be terminated, “there was no disclosure provided to the grievor to make him aware of the specific comments made, to whom, at what time and whether anyone else could corroborate them."

8The union does not seek to undo the resignation; rather, it seeks damages for the "flawed" WDHP investigation.

The Submissions of the Parties

9The employer submitted that the only provision of the collective agreement referred to on the face of the grievance is article 21 dealing with discipline and discharge. It says that the grievor was neither disciplined nor discharged; he resigned. Accordingly, since there is no express or implied provision of the collective agreement alleged to have been violated, there is no jurisdiction to hear the grievance.

10The employer relied upon the following authorities: OPSEU (Dobroff et al.) and The Crown in Right of Ontario (Ministry of the Environment), GSB 2003-0905 et al (Dissanayake - April 28, 2008); OPSEU and The Crown in Right of Ontario (Ministry of Health and Long-Term Care), GSB 2003-1461 (Mikus - October 9, 2007); OPSEU and The Crown in Right of Ontario (Ministry of Transportation), GSB 2012-1012 (Dissanayake - November 14, 2014).

11The union submitted that the grievance form also relies on "any other policy, article, or legislation that may apply in this circumstance." It observed that grievances are drafted by laypeople and that considerable scope is given to grievances such as this. It submitted that the particulars set out above includes the fact that “The Grievor was seeking medical care at the time of the alleged conduct." It said that that was sufficient to also engage article three of the collective agreement, the no discrimination clause.

12The union relied upon: OPSEU (Evangelista et al.) and The Crown in Right of Ontario (Ministry of the Attorney-General), GSB 2009-1091 et al. (Harris - June 13, 2011).

13The employer submitted in reply that the particulars do not assert that the medical care explained in any way the alleged conduct. It also submitted that although the employer would be required to consider an employee's medical condition if it were to discipline or discharge them, the employer took no such step here. The grievor voluntarily resigned in order to avoid being terminated and face litigation over the termination. That is, in essence, the medical condition is irrelevant. The employer also observed that the grievor received severance payments pursuant to article 53.4.1(b), to which he would not have been entitled had he been terminated. He chose to resign and is not entitled to any further wages or pension enhancement.

Analysis and Decision

14As set out above, the union’s facts are to be taken as true on an application such as this. Accordingly, the grievor knew that an investigation was underway pertaining to allegations that he had made inappropriate comments while instructing new recruits in April/May 2014. He was advised that he was going to be terminated for this alleged behavior. He had no specific knowledge of what the allegations were from the employer. He chose to retire, and he communicated that choice to the employer. Prior to the effective date of his retirement, he filed the instant grievance.

15The union does not seek to undo the retirement. Accordingly, it is implicitly agreed that the retirement was voluntary. The employer took no steps to end the grievor's employment with it. It was not obliged to inquire into the reasons the grievor decided to retire nor into any explanation he might have had for his alleged inappropriate comments that led to the WDHP investigation. Had he chosen to remain an employee, he would have had a full opportunity to explain the circumstances that led to the WDHP investigation and make his case against being terminated. He did not have to retire; he chose to retire.

16The WDHP investigation is really of no moment. Based on the investigation the employer might have chosen not to fire the grievor. If it did fire the grievor, then he would have had an opportunity to grieve and take the matter to arbitration. The adequacy or inadequacy of the investigation would not determine the arbitral outcome. It would be the evidence heard by the vice-chair, including any medical evidence, that would determine the outcome. In my view, there is no case to meet here. The grievor was informed that his employment would be ended, and he chose to end it himself to avoid the consequences of the WDHP investigation.

The Decision

17The grievance is dismissed.