4109-96-HS Ontario Public Service Employees Union and Deborah Haring, Applicants v. Ministry of the Solicitor General & Correctional Services - Maplehurst Correctional Centre, and Inspector Chester Paddock, Responding Parties.
3025-97-HS Lieutenant David Walker, Applicant v. Ministry of the Solicitor General & Correctional Services, Maplehurst Correctional Centre; Ontario Public Service Employees Union; Inspector Chester Paddock and Ministry of Labour, Responding Parties.
3516-97-OH Lieutenant David Walker, Applicant v. Ministry of the Solicitor General & Correctional Services, Maplehurst Correctional Centre, Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; April 11, 2001
These are three related proceedings under the Occupational Health and Safety Act, R. S. O. 1990, c. O. 1, as amended ("the Act") relating to a work refusal by several correctional officers at the Maplehurst Detention Centre on Labour Day, 1996; a work refusal by Lt. David Walker in November 1997 and alleged reprisals against him also in November, 1997 for exercising rights under the Act.
On April 4, 2001 Lt. Walker sent a letter to the Registrar by facsimile transmission (which was only brought to my attention on April 10, 2001) making a request for interim relief in connection with these three matters. The basis for the claim for interim relief arises from a notice he asserts he received from Superintendent M. Mously advising that Lt. Walker had been "terminated from the civil service as [he] had abandoned [his] position." Lt. Walker goes on to assert that he had complied with directions from Mr. Mously contained in a letter to him dated March 5, 2001 by making a doctor's appointment for March 29th "for an updated medical prognosis to a return to work". Thus, it appears that Lt. Walker seeks interim relief in these three proceedings with respect to action taken by Lt. Walker's employer on March 25, 2001.
Lt. Walker advised the Board at the hearings in these matters on June 29, 2000 that he wished to move for interim relief pending the final disposition of his applications in Board File Nos. 3025-97-HS and 3516-97-OH. The Board dismissed that request for interim relief in an oral decision made at that hearing. The Board, by decision in these matters dated January 3, 2001, provided the parties with that oral decision.
The Board's oral decision dismissing Lt. Walker's request for interim relief (as set out in its decision dated January 3, 2001) stated:
The request for interim relief by Lt. David Walker is based on circumstances that have arisen since November 1999 and are continuing up to the present time. The two matters before the Board in which Lt. Walker is a party were filed in November, 1997 and were a reprisal complaint and an appeal of an inspector's decision. Those are the two proceedings before me involving Lt. Walker. There is no proceeding in which Lt. Walker is a party alleging inappropriate conduct by the Ministry of the Solicitor General and Correctional Services since November, 1999. Thus there is nothing before me at this time in respect of which interim relief can be granted.
The request for interim relief made by Lt. Walker is dismissed without prejudice to renewing a request for interim relief upon the necessary material being filed with the Board.
- The letter seeking interim relief from Lt. Walker states, in part:
I have a reprisal complaint in against the Ministry and Mr. Briek concerning my returning to work to a poisoned work environment and no investigations being done by the Ministry which has had me off work since March 13, 2000. I have been without a paycheck since March 13, 200 and I had requested interim relief from Mr. Freedman.
Mr. Freedman had granted an adjournment for me to seek temporary employment to support my family. That temporary employment did not materialize and now the Ministry has terminated me.
The reference to interim relief being requested is, I assume, the request that was made and dismissed in June 2000. As for the adjournment, the Board's decision granting the adjournment dated January 4, 2001 was based in large part on the representation from Lt. Walker, as set out in paragraph 3 of that decision, that "...he has been able to secure a short term, full time work opportunity with an out of province government agency that would commence on January 31, 2001 and would continue until sometime in May, 2001." That decision also noted that if the adjournment was granted, the hearings in these matters would not likely resume before September, 2001. He accepted that. There was no suggestion at the time the motion for the adjournment was granted that Lt. Walker wanted the adjournment so that he could "seek temporary employment." It was granted on the grounds that Lt. Walker had secured temporary employment and that he needed to advise the agency that he could accept the offer of employment.
- The Board, in its January 4, 2001 decision also noted that there might be some risk to Lt. Walker's employment with the Ministry of the Solicitor General and Correctional Services due to the dispute over whether he was fit to return to work. The Board's decision noted at paragraph 9:
Lt. Walker has, in my opinion, demonstrated to me that he has suffered serious financial hardship as a result of the ongoing dispute between him and his employer. I can certainly appreciate his employer's frustration over Lt. Walker saying on one hand he cannot return to work but yet on the other hand asking for time to take up full time temporary employment. Nevertheless, what consequences the employer may visit on Lt. Walker should he undertake that work opportunity are not before me in these proceedings and neither are the reasons for Lt. Walker's inability to return to work for his employer. I also accept that if Lt. Walker loses the opportunity to perform that work for the months of February, March, April and May 2001, he will be significantly prejudiced. I am not in a position to determine whether his refusal to return to employment is medically justified. He says it is. His employer says there is no justification for not returning to work. What is not disputed is that Lt. Walker has the opportunity to earn significant income over the next four months doing something that he says he is medically able to perform. Under these circumstances, refusing the adjournment would, in my view, constitute demonstrable significant hardship. Finally, when weighing that prejudice to Lt. Walker against the prejudice that the adjournment would cause the Ministry of the Solicitor General & Correctional Services, I am satisfied that the disruption to the schedules of the parties involved in this proceeding has far less of an impact on them than would a refusal to grant the adjournment have on Lt. Walker.
The Board specifically observed in paragraph 9:
...what consequences the employer may visit on Lt. Walker should he undertake that work opportunity are not before me in these proceedings and neither are the reasons for Lt. Walker's inability to return to work for his employer.
It seems to me that it was clear in January 2001 that what Lt. Walker's employer might do to in reaction to his not reporting for work with his employer was not before me "in these proceedings."
The April 4, 2001 request for interim relief made by Lt. Walker relates to conduct that allegedly occurred in March 2001. The circumstances of the request for interim relief are, in my view, identical to the circumstances that were before me when Lt. Walker made his earlier request for interim relief in June 2000; that is, the request is based on events that occurred long after the incidents to which his two applications in Board File Nos. 3025-97-HS and 3516-97-OH relate. Or, to put it another way, since the conduct of Lt. Walker's employer in March 2001 is not something that is before me in these proceedings, such conduct cannot form the basis for interim relief in these proceedings.
Under these circumstances, there is no proper basis for me to even consider granting interim relief in the two applications filed by Lt. Walker, as they relate to events in November 1997. Therefore, this request for interim relief is dismissed without prejudice to Lt. Walker renewing his request for interim relief upon the necessary material being filed with the Board.
The hearing of these matters is to continue before the Board at the place and time set out in the notice of hearing issued by the Registrar dated January 23, 2001.
"Harry Freedman"
for the Board