GSB# 2017-2588

UNION# 2017-5112-0221

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Frater)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Janice Johnston

Arbitrator

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Henry Huang Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 15, 2019 (by teleconference) and January 17, 2020

Decision

1The Grievor in this case, Ms. Tara Frater, received a twenty day suspension on August 3, 2017 for alleged misconduct which occurred on September 8, 2015, nearly two years before the imposition of the discipline.

2At the mediation/arbitration scheduled to deal with this matter, the parties agreed that it was to be dealt with pursuant to the expedited arbitration process set out in Article 22 of the Collective Agreement. That process provides in part:

22.16.1 Except for grievances concerning dismissal, sexual harassment, and/or human rights, and Union grievances with corporate policy implications, all grievances shall proceed through the GSB to a single mediator/arbitrator for the purpose of resolving the grievance in an expeditious and informal manner.

22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.

22.16.7 Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise.

3This case was scheduled for mediation on April 13, 2018 and again on January 8, 2019. The mediation was unsuccessful. In a conference call on February 15, 2019 the union took the position that the fact that it took almost two years to impose the discipline was an unreasonable delay. The parties agreed to deal with this issue of delay as a preliminary matter. Written submissions were filed including an agreed statement of fact. A hearing was convened on January 17, 2020 to allow the parties to make final submissions on the issue of delay.

4An incident occurred on September 8, 2015 that resulted in the death of an inmate. In November, 2015 the matter was referred to Correctional Services Oversight & Investigations (“CSOI”) for investigation into the sudden death of the inmate. On January 27, 2016 a Health Care Review was completed which identified concerns with regard to the conduct of the Grievor on September 8, 2015. Between January 27, 2016 and September, 2016 it appears that no action took place in the investigation. In September, 2016 the Inspector in charge of the investigation requested and received the schedules of seven employees, including the Grievor, to arrange for interviews. Nothing happened. In December, 2016 the Inspector in charge of the investigation again requested and received the schedules of the seven employees, including the Grievor. Interviews took place in January, 2017 a year and four months after the incident took place.

5Counsel for the Ministry argued that insufficient staffing and workload issues led to the delays in this case. He suggested that it is not uncommon for investigations to take 1 – 2 years to complete.

6I do not disagree with counsel that on occasion cases involving the death of an inmate may be very complex and take years to complete. The involvement of the police and paramedics or other agencies can complicate and delay investigations. But that is not this case. For example, no specific reason for the very lengthy delay in conducting the interviews of staff was provided. They all were employees. Those interviews took place 16 months after the event. Memories fade and that kind of a delay could seriously impact on the quality of the memories of those staff interviewed. In addition, as another example, no specific reason was provided for the delay between January, 2016 and September, 2016 or for the delay between September 2016 and January, 2017.

7Another fact that gives me concern is that it appears that the grievor was unaware that her conduct was being questioned until the Health Care Review was completed in January, 2016. But no action was taken at that time. The grievor was not suspended with pay pending an investigation into her conduct. In January, 2017, a year later, she was interviewed with other staff. But again after that interview no action was taken and she was not suspended with pay pending investigation.

8Pursuant to the Public Service of Ontario Act, 2006, S.O. 2006, c. 35 (the “ACT”), the employer has the right to suspend an employee while it is conducting an investigation. The Act provides:

34 The Public Service Commission may for cause,

(a) impose disciplinary measures, including suspension, on a public servant appointed by it, as the Commission considers appropriate; and

(b) dismiss from employment a public servant appointed by it, as the Commission considers appropriate. 2009, c. 33, Sched. 17, s. 10 (6).

36 (1) The Public Service Commission may conduct an investigation in order to determine whether there is cause for the purposes of section 34. 2006, c. 35, Sched. A, s. 36 (1).

(2) The Public Service Commission may, pending the conclusion of an investigation, suspend the public servant for a period not exceeding the period prescribed under clause 55 (1) (a). 2006, c. 35, Sched. A, s. 36 (2).

(3) The Public Service Commission may withhold the public servant’s salary, wages or any other remuneration, including benefits, during the suspension under this section if it considers it appropriate to do so, and may, at the end of the investigation, reimburse amounts that were withheld if it considers it appropriate to do so. 2006, c. 35, Sched. A, s. 36 (3).

9The Regulations provide for a maximum suspension of two years.

10However, the right to suspend under section 36 of the PSOA was not utilized in this case and the two year period provided for in that Act does not represent an appropriate measure of delay in the circumstances here.

11Counsel for the union has asked that the discipline be declared null and void due to the delay. In support of his argument he provided me with the following jurisprudence:

Ontario Public Service Employees Union (Dannenberg) v. The Crown in Right of Ontario (Ministry of Correctional Services) GSB #414/89; Ontario Public Service Employees Union (Bonacci) v. The Crown in Right of Ontario (Ministry of Solicitor General & Correctional Services) GSB #1923/96; Ontario Public Service Employees Union (Group Grievances, Sammy et al) & The Crown in Right of Ontario (Ministry of Correctional Services), GSB #0224/01, 1474/01, 2002 CanLII 45769 (ON GSB); Ontario Public Service Employees Union (Girandy et al) & The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB #2004- 3120, 2004-3121, 2004-3865, 2004-3954, 2009 CanLII 59465 (ON GSB); Manitoba Pool Elevators Brandon Stockyards v. U.F.C.W., 1993 CanLII 16667 (MB LA), 1993 CarswellMan 580, 32 C.L.A.S. 172, 35 L.A.C. (4th) 276; The University of Ottawa International Union of Operating Engineers, Local 796-B, October 4, 1994 (Unreported); A.B.G.W.I.U. v. AFG Industries Ltd., 1998 CanLII 30077 (ON LA), 1998 CarswellOnt 5647, 54 C.L.A.S. 87, 75 L.A.C. (4th) 336.

12Counsel for the employer has requested that I dismiss the preliminary motion. He argued that the time taken to investigate this matter was not unreasonable. In support of his submissions he referred to: Ottawa-Carleton District School Board v. O.S.S.T.F., 2004 CarswellOnt 8209, [2004] O.L.A.A. No. 16, 75 C.L.A.S. 403; Ontario Public Service Employees Union (Beltrano et al.) & The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) GSB #2003-3597, 2003-3600, 2003-3603, 2003-3604; Metropolitan Toronto (Municipality) v. C.U.P.E., Local 79, 1999 CanLII 35953 (ON LA), 1999 CarswellOnt 2442, [1999] O.L.A.A. No. 84, 55 C.L.A.S. 91, 78 L.A.C. (4th) 1.

13In my view discipline must be imposed within a reasonable time frame. What is reasonable is completely factually dependent. In this case the employer had no reason other than “significant workload issues” and “insufficient staffing”. Those are not valid reasons for the unacceptably lengthy delay in this case. Also given that the grievor was not made aware that her conduct was being questioned there is inherent prejudice in a delay such as what occurred in this case.

14Accordingly, the motion of the union is upheld and I hereby declare the discipline in this case to be null and void. All record of it is to be removed from the grievor’s file and she is to be reimbursed for the twenty day suspension.

15In the event that there are any difficulties with the interpretation or implementation of this decision I shall remain seized.