P/927/84

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Dr. John Hough

Grievor

• and -

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

Employer

BEFORE

Prof. C. Gordon Simmons E.A. Black R.J.C. Pringle

Chairman Member

Member

FOR THE GRIEVOR

Mr. G. Clegg Clegg & Drury Barristers and Solicitors

FOR THE EMPLOYER

Ms. R. McCully Legal Services Branch Ministry of Community and Social Services

HEARING

August 14, 15, 27, 28, 29, 1984.

Dr. Hough, the grievor, had been employed at the Huronia Regional Centre for approximately thirteen years when he was suspended on January 31, 1984. His suspension continued, without pay, until April 30 when he located employment elsewhere. He does not claim reinstatement. He claims that his suspension was improper. His grievance reads:

In the Matter of the Public Service Act

and the Regulations Thereunder:

And in the Matter of Dr. John Hough, Dentist

GRIEVANCE

Dr. John Hough hereby gives notice of the following grievance: That he was improperly suspended from his employment as a Dentist at Huronia Regional Centre by Mr. D. Cornish, on January 31st, 1984, with pay for the balance of the working day, and that Dr. John Hough was again improperly suspended on February 1st, 1984, until February 28th, 1984, without pay.

Dated the 17th day of February, 1984.

Dr. John Hough, by his Solicitors, Clegg & Drury, Barristers & Solicitors, 31 Peter Street North, Orillia, Ontario, L3V 6J6

Per George Clegg

There followed three more periods of suspension, each for twenty working days without pay pursuant to the Public Service Act S. 22 and Regulation 881 Section 18.

It is to be noted that Dr. Hough’s grievance does not claim any specific remedy. The Board was informed at the commencement of the hearing that Dr. Hough had received full compensation on August 7 for the period of suspension. The Board was further informed that Dr. Hough would be seeking a declaration that the suspension was improper.

Later, during the hearing the claim sought by Dr. Hough was expanded to include damages and costs. Mr. Clegg, counsel for Dr. Hough, succinctly set out the claim in his post hearing written submission as follows:

On August 8th, 1984, Huronia Regional Centre issued a cheque for $8,039.89 representing 62 days’ salary at $180.99 less the usual deductions. The net figure amounts to $129.68 per day. The Ministry pays at two-week intervals, and Dr. Hough’s pay for the period from February 2nd to 12th should have been received on February 23rd. Subsequent payments of ten days’ pay each would have been received on March 8th and 22nd, April 5th and 19th, and May 3rd and 17th. Interest on the amounts due on these dates calculated at 11% totals $305.62. It is respectfully suggested that the Board should award interest of this amount, substantial damages for mental and physical stress caused to Dr. Hough by the unwarranted suspension in an amount at least equal to his gross pay for the period of suspension, and his costs of these proceedings.

One other preliminary matter of importance to be mentioned is Dr. Hough filed an earlier grievance on January 6, 1984. That grievance reads:

In the Matter of the Public Services Act

and the Regulations Thereunder

and in the Matter of Dr. John Hough, Dentist

Grievance

Dr. John Hough hereby gives notice of the following grievance;

That the management of the Huronia Regional Centre has failed to provide him with the environment necessary and conducive to the proper practice of dentistry, and to permit him to provide high quality dental services.

Dated the 6th day of January, 1984.

Dr. John Hough, by his solicitors, Clegg & Drury, 31 Peter

Street North, Orillia, Ontario, L3V 6J6

Per George Clegg

Mr. Clegg conceded that this grievance, referred to by the parties throughout the hearing as “the working conditions grievance” has lost much of its significance now that Dr. Hough is no longer seeking to return to the Huronia Centre. However, Mr. Clegg argued that the January 6 grievance remains significant in that the underlying reasons for the alleged improper suspensions are attributable to the facts surrounding the working conditions grievance. According to Mr. Clegg, the issues in the working conditions’ grievance triggered the suspension. Thus he was not prepared to abandon the working conditions’ grievance but admitted that its relevancy or significance had been subsumed in the suspension grievances.

Ms. McCully, counsel for the employer, argued that the Board lacked jurisdiction to resolve these grievances on their merits. It was her position that the working conditions grievance became moot when Dr. Hough’s application for employment in another ministry was accepted and he no longer seeks to return to his former employment. It was her position that the Board ought not to hear the grievance on its merits because there is no effective remedy that can be awarded.

Similarly, she argued that the suspension grievances have likewise become moot. Dr. Hough was awarded full compensation on August 7 for the entire period of his suspension so that issue, if it is an issue, no longer exists.

It was agreed by the parties to have the Board reserve its decision on the preliminary objections and hear evidence and argument on the merits. However, it was further recognized that should the preliminary objections be sustained the Board would not proceed to the merits for obvious reasons. We will now discuss the objections.

Preliminary objections to the Board’s jurisdiction to hear and resolve grievances on their merits have been occurring with increasing frequency. Generally speaking, the practice that was followed in the nineteen seventies and before, was to address the issues on their merits without regard to the technicalities that are usually raised in preliminary objections. This change may be due to the nature of the times we live in which we must accept as a normal part of the process. However, these objections have compelled the Board to venture into unchartered waters to scrutinize more closely the various sections and subsections that are contained in the Public Service Act and Regulations in order to determine whether it possesses or lacks the requisite jurisdiction to resolve the grievances on their merits.

Turning first to the working conditions grievance we have no difficulty in concluding that the grievance has become moot and that we decline to delve into it and decide the issues on their merits. The grievance complains of a failure to provide Dr. Hough “with the environment necessary and conducive to the proper practice of Dentistry, and to permit him to provide high quality dental services.” When Dr. Hough admitted that he no longer wished to return to the Huronia Centre the grievance lost any real significance. Indeed, Mr. Clegg admitted as much in his submissions before the Board. However, as stated earlier, he argued that the facts surrounding the working conditions grievance remain relevant to the suspension grievances and submitted that they ought to be allowed into evidence for that purpose.

Assuming, without deciding the issue, that the objection to hearing the suspension grievances fail, the Board would be prepared to consider the evidence that is relevant to the suspension grievances. In other words, should the objection fail the Board might be required to review some of the evidence that was submitted during the hearing of the working conditions grievance but only to the extent that it would be relevant to deciding the suspension grievances

The objection to the suspension grievances raise different considerations. As stated earlier, the employer submitted that the suspensions were non disciplinary and therefore not adjudicable. By implication therefore the employer must be understood to be saying that if the suspensions were disciplinary then the Board does possess the jurisdiction to hear and resolve the grievances on their merits.

Disciplinary suspensions have been considered by the Board on previous occasions. In McAllister 752/73, Black Chairman, it was held that the grievor receive lost compensation for a five day suspension and that a written reprimand be removed from his Personnel Branch file. In Musey 906/81, Berstein Chairman, a grievor was awarded one month’s salary when the suspension was found to have been unjustified. In neither of these cases was the Board’s jurisdiction challenged.

But once an objection is raised, the Board cannot proceed blithely to the merits. Instead, it must address the objection and decide whether or not it actually possesses the requisite jurisdiction to proceed. This is precisely what has happened in the instant situation so we must resolve that issue.

The Board relies on Regulation 881 for establishing its jurisdiction in normal circumstances. Sections 36 through 41 create the Board. Sections 41 through 48 relate to the Board’s role in dismissal situations which, it is agreed, are not relevant to the instant situation. Sections 49 through 56 relate to the Board’s role when “working conditions of terms of employment” complaints are presented. The latter sections read:

49. (1) Subject to subsections (2) and (3), sections 50 to 57 apply to persons who are employed in the public service under the jurisdiction of a deputy minister and who have been so employed continuously for at least the preceding six months.

(2) Sections 50 to 57 do not apply to persons in the positions or classifications set out or described in Schedule 1.

(3) Sections 50 to 57 do not apply to members of the Ontario Provincial Police Force who are cadets, probationary constables, constables, corporals, sergeants, staff sergeants, detective- sergeants and traffic sergeants. R.R. O. 1982, Reg. 881, s. 49

50. (1) Any person may present a complaint in respect of working conditions or terms of employment to his supervisor within fourteen days of his becoming aware of the complaint, and the person and his supervisor shall endeavor to resolve the complaint by informal discussion.

(2) If the complaint is not resolved under subsection (I), the person may present the grievance in writing to the supervisor within seven days of the date of the informal discussion and the supervisor shall give the grievor his decision in writing within seven days of the presentation. R. R. O. 1980. Reg. 881, s. 50.

51. (1) Where the grievance is not one to which section 57 applies, if the grievor is not satisfied with the decision of his supervisor or if he does not receive the decision within the specified time limit, he may present his grievance in writing within seven days.

(a) of the date he received the decision, or

(b) of the date on which the time limit expired, as the case may be, to a person or persons, other than the supervisor, designated by his deputy minister for the purpose.

(2) The person or persons designated by the deputy minister under subsection (1) shall give his or their decision in writing to the grievor within seven days of the presentation. R.R.O. , 1980, Reg. 881, s. 51

52. (1) Where the grievor is not satisfied with the decision of the person or persons designated by the deputy minister or does not receive the decision within the specified time limit, the grievor may present his grievance in writing to the deputy minister within seven days,

(a) of the date he received the decision; or

(b) of the date on which the time limit expired, as the case may be.

(2) the deputy minister shall conduct an investigation into the grievance within fourteen days of the date of the presentation and shall give the grievor his decision in writing within seven days of the completion of the investigation.

(3) Where the grievor has not had an opportunity to be heard by the person or persons designated by the deputy minister under section 51, the deputy minister shall hold a hearing and shall give the grievor an opportunity to be heard in an investigation under subsection (2). R.R.O. 1980, Reg. 881, s. 52.

53. If the grievor is not satisfied with a decision given under section 52 or if he does not receive notice of such decision within the specified time limit, he may apply in writing to the Board within seven days,

(a) of the date he received the decision; or

(b) of the date the time limit expired, as the case may be, for a hearing of the grievance. R.R.O.1980, Reg. 881, s. 53.

54. Where an application is made to the Board for the hearing of a grievance, the Board shall hold a hearing within one month of the date of the application and, at least fourteen days before the hearing, shall notify the grievor, the employee representative and the deputy minister concerned of the date, time and place of hearing. R.R.O. 1980, Reg. 881, s. 54.

55. The decision of the Board in respect of a grievance shall be communicated in writing personally or by registered mail to the grievor, the employee representative and the minister and deputy minister concerned, and the Chairman of the Commission. R.R.O. 1980, Reg. 881. s. 55

56. The determination of a grievance by the Board under section 54 is final. R.R.O. 1980, Reg. 881. s. 56.

In order to determine whether or not the Board possesses the requisite jurisdiction to determine this matter it must first be determined that a suspension falls within the meaning of the term “working conditions or terms of employment”.

The term “working conditions” has been considered in a number of cases. In Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Police Association, (1974), 1974 CanLII 702 (ON HCJDC), 5 O. R. (2d) 285, 50 D. L. R. (3d) 173 (Ont. H.C.); affirmed 1975 CanLII 645 (ON CA), 8 O.R. (2d) 65, 57 D. L. R. (3d) 161 (C.A.) the issue arose over whether or not the term was sufficiently broad to enable an arbitrator to determine the issue of the assignment of two police officers to one patrol car during certain hours of the day. Jessup J. A. stated at p. 66 O.R., p. 162 D.L.R.:

"Working conditions” are words of very broad compass in their ordinary meaning and I think they would include the number of persons required to perform a particular task for reasons of safety as found by the arbitrator.

Again, in Re Metropolitan Toronto Police Association and Board of Commissioners of Police for Metropolitan Toronto (1980) 1980 CanLII 2701 (ON HCJDC), 111 D.L.R. (3d) 658 (Ont. H.C.) the court held that “working conditions” was broad enough to allow the parties to negotiate over the issue of “survivor’s” benefits". Mr. Justice Osler stated on p. 669:

It is a benefit to members of the police force to provide for the discharge of their obligations to their dependants in certain contingencies and, in our view, this may be a matter of collective bargaining.

The court also ruled that “a reduction in the size of the force”, “wallet with identification card and badge” were likewise bargainable issues within the meaning of the term “working conditions” even though the arbitrator had earlier ruled that he lacked jurisdiction. He apparently interpreted the term more narrowly than the court believed to be the case.

So one can conclude that the term “working conditions” covers a wide range of issues. But it is to be remembered that Section 50 (1) of the Regulations also contains “working conditions or terms of employment” (underlining ours). In Re Liquor Control Board of Ontario et al and Ontario Liquor Board Employees’ Union et al (1980) 1980 CanLII 1857 (ON HCJ), 29 O.R. (2d) 705 (Ont. H. C.) the court had before it a term that is similar in that it read “a term and condition of employment.” Mr. Justice Steele, for the court, stated at p. 708:

The issue is whether or not the parties may negotiate for insurance benefits for retirees within the phrase “a term and condition of employment”. The term “working conditions” has been considered in many cases, including Re Metropolitan Toronto Board of Com’rs of Police and Metropolitan Toronto Police Ass’n (1975), 1975 CanLII 645 (ON CA), 8 O.R. (2d) 65, D.L.R. (3d) 161, in which Jessup, LA., at p. 66 O.R., p. 162 D.L.R., said “working conditions” are words of very broad compass in their ordinary meaning. (See also Re Borough of Scarborough and Scarborough Fire-fighters’ Ass’n, Local 626, Int’l Ass’n of Fire-fighters et al. (1979), 1979 CanLII 1832 (ON HCJ), 26 O.R. (2d) 298, 104 D.L.R. (3d) 748.) I am of the opinion that the expression “terms and conditions of employment” is even wider in scope than ‘"working conditions". However, even within the more restricted terms of “working conditions” the interpretation must encompass all matters that are involved between the employer and the employees in negotiating a collective agreement, many items are considered as being terms and conditions of employment that do not necessarily relate specifically to the day-to-day working conditions. In Re: Procpor and Board of Com’rs of Police of the City of Sarnia (1979), 1979 CanLII 69 (ON CA), 24 O.R. (2d) 715, 99 D. L. R. (3d) 356, the Court recognized the broader definition of the “terms and conditions of employment” from “working conditions”.

The above judicial decisions reveal that the term contained in Section 50 (1) viz, “working conditions or terms of employment” support a very broad interpretation being placed upon it. If we understand counsel for the employer correctly, she takes no objection to having the term “disciplinary suspensions” falling within the meaning ‘‘working conditions”. In our view, the term “disciplinary suspension” relates not only to “working conditions” but also to “terms of employment". Surely, an employee who has been suspended from work without pay has had his working conditions or his terms of employment adversely affected for which he is permitted to file a complaint under Section 50. To conclude otherwise would have the effect of rendering much of Section 50(1) meaningless.

But Ms. McCully has argued that what has transpired here is a non-disciplinary suspension. With respect, it is not for the employer to decide whether or not a suspension is or is not disciplinary. That decision must be made by the Board. But such a statement simply begs the question how does the Board obtain the jurisdiction to render such a decision? Again, one must consider Regulation 881. Sections 49 through 56 address the matter of working conditions or terms of employment complaints. Provision is made for the presentation of such complaints and a procedure to be followed in the event any are presented. Sections 54, 55 and 56 vest jurisdiction in the Board to hear such complaints and make a final determination of the grievance. So once it is acknowledged that the Board possesses the jurisdiction to determine complaints over working conditions or term of employment, and, that discipline involves working conditions or terms of employment, then, it follows that it is the Board which must determine whether what has transpired was disciplinary or not. This determination cannot be made unilaterally by the employer so as to eliminate a review of that determination. To adopt such a position would be analogous to what often occurs in the private sector involving a quit/dismissal grievance. In those types of grievances the employee typically blurts out a statement that he is quitting. This usually occurs during a heated exchange between the employee and a foreman (or other Supervisor). Later, usually the next working day, the employee returns to his place of work and says that he didn’t intend to quit and asks permission to return to work. The employer states that it is too late and that his resignation has been accepted. The employee grieves claiming he has been unjustly dismissed. In such circumstances, the arbitrator determines whether the issue is a quit or dismissal even though the employer may argue that no dismissal had taken place and that the arbitrator lacks jurisdiction to resolve the matter on its merits. The arbitral jurisprudence establishing jurisdiction in the arbitrator stems from early times, see Anchor Cap and Closure Corp of Canada (1949) 1 L.A.C. 222 (Finkelman) and continues today, see Mack Canada Inc (1982) 1982 CanLII 5091 (ON LA), 3 L.A.C. (3d) 320 (Kennedy). We are of the view that the determination of whether or not a suspension is disciplinary must likewise be vested in the Board.

The next question to which we must turn is whether or not the suspension in the instant situation was disciplinary.

Employers may require employees to remain off work although no punitive or disciplinary elements are involved. For example, an employee who has been absent from work due to illness and who wishes to return to work may be prevented from doing so pending the outcome of a medical examination. See Monarch Fine Foods Co Ltd (1978), 1978 CanLII 3449 (ON LA), 20 L.A.C. (2d) 419 (M. G. Picher). There are many other reported examples of a similar nature to be found.

But such are not the circumstances in the instant situation. Dr. Hough was at work on January 31 when an incident between him and another dentist occurred. As a result of the incident, Dr. Hough was suspended from work for the remainder of the day. He was informed that he would receive compensation for the day. At a meeting with his supervisor the following day he was suspended, without pay, for twenty working days. As related earlier, his suspension without pay was extended for several successive twenty working day periods.

We are satisfied that discipline was involved when Dr. Hough was relieved of his duties without pay. He not only suffered financially but considered the suspension to be disciplinary. We are supported in our decision that the suspension was disciplinary in the decision of Re McManus and Treasury Board (1980) 1980 CanLII 4058 (CA LA), 25 L.A.C. (2d) 150 (Adams) where he stated as follows on p. 160:

I am dealing with two grievances. One pertains to an indefinite suspension imposed on September 4, 1979, “pending an investigation into alleged improper actions". The second relates to the grievor’s dismissal by letter dated November 16, 1979. With respect to the first grievance, on a review of the evidence and the submissions of the parties, it must succeed. While I am satisfied that an indefinite suspension pending an investigation is disciplinary and within the employer’s statutory power, the power may only be utilized in appropriate situations. As Mr. Jolliffe noted in Gaw (file 166-2-3292 (unreported)) at p. 11, it is highly unusual for an employee to be relieved of his duties before a conclusion with respect to alleged wrong doing is reached by the appropriate authority. Such drastic action may be justified where an employee is charged by police with a criminal offence, but even in those circumstances an employer must justify why the employee cannot continue to work in his job or in some lesser capacity pending the resolution of the criminal charges in the Courts: see Guenot (file 166-2-1498 (1974) 1974 CanLII 2333 (CA LA), 6 L.A.C. (2d) 400 (Simmons); Horsfield (file 166-2-1568 (unreported)), and Re Phillips Cables Ltd. and U.S.W., Local 7276 (1974), 1974 CanLII 2366 (ON LA), 5 L.A.C (2d) 274 (Adams).

Accordingly, we find that the suspensions were disciplinary and that the Board possesses the necessary jurisdiction to proceed to the merits. We do not wish to convey the impression that had it been decided that the suspensions were non disciplinary the Board would have lacked jurisdiction. Indeed, it is the Board’s opinion that the terms “working conditions” and “terms of employment” are sufficiently broad to encompass any suspension.

But of course, having found the suspensions to have been disciplinary the matter does not end there. The employer contends that because the grievor had been compensated the issue has become moot. Again, we are unable to agree. Dr. Hough claims that the suspensions were improper and seeks a declaration to that effect. In other words, he seeks to have the effects of the suspensions removed, albeit he no longer seeks to return to the Huronia Centre. We consider that Dr. Hough’s claim has merit. He may someday seek employment with yet another employer and would not wish to have these suspensions somewhere on file which could conceivably be detrimental to him in that endeavour. There may exist other reasons for having the grievances proceed on their merits. In any event, for the above reasons we do not consider the grievances to be moot so we will next proceed to consider the grievances on their merits.

Dr. Hough has been employed at the Huronia Centre as a dentist since 1971. Prior to 1974 the centre was administered by the Ministry of Health but since then it has been within the Ministry of Community and Social Services.

Normally, there are two dentists employed at the centre along with two dental assistants and one dental hygenist. During Dr. Hough’s tenure there have been several dentists come and go. The evidence depicted Dr. Hough as being a difficult person to work with in the department but once outside the department he was a very pleasant, easy going person when interacting with people who were not associated with the department. But he was also a person who would not be shoved around. For example, when in 1975 he was informed that he was to be transferred to Cedar Springs, another centre in South Western Ontario, he grieved the impending transfer and succeeded in having it cancelled. Also, when one of the other dentists employed at the Centre filed a complaint about Dr. Hough with the Royal College of Dental Surgeons in 1977, Dr. Hough issued a writ against the dentist and succeeded in receiving a financial settlement for libel. The other dentist resigned in February 1978.

Dr. Hough was the only dentist at the Centre between March 1978 and April 1980 when Dr. Helen Williams (her present married name) joined the Centre. Dr. Hough was soon thereafter appointed supervisor of the department. He remained supervisor until April 1982 when his immediate supervisor, Mr. E. A. Njoku, Coordinator, Health Services removed him from his supervisory responsibilities and assumed the role himself. Dr. Hough had turned out to be a poor administrator. He had problems ordering adequate and proper supplies and his expenditures had little resemblance to the budget. Dr. Hough realized the shortcomings of his administrative capabilities and, according to Mr. Njoku’s testimony, seemed relieved to be rid of such responsibilities.

Dr. Hough took a leave of absence from the Centre for two months in May and June, 1982 due to stress. However, matters seemed to proceed much more smoothly in the department until the Summer of 1983 when Mr. Njoku announced he would be leaving to take employment in London, Ontario. While Mr. Njoku had been in charge there was very little friction exhibited among the staff. But things would soon change. Discussions between Mr. Njoku and his supervisor, Mr. D. Cornish, Administrator of the Centre followed as to how best could the dental department continue to operate. Mr. Njoku did not believe that Dr. Hough could supervise the department and Mr. Cornish had the entire centre to administer. That is, Mr. Cornish’s other responsibilities made it impractical for him to assume the functions that had been performed by Mr. Njoku. However, Mr. Cornish did assume Mr. Njoku’s other functions as coordinator of health services when the latter left for London. Consequently, it was ultimately decided to appoint Dr. Williams the Acting Manager of the department. She had arrived on the scene in 1980, nine years later than Dr. Hough who had been her supervisor until Mr. Njoku took over. Naturally Dr. Hough was upset over this turn of events.

To make matters worse, Dr. Hough’s dental assistant transferred to the records department at the Centre in October 1983. Her dosimeter had mysteriously registered a high dosage of radioactivity which made her fearful for her health. A dosimeter is a badge that people wear when working around X-ray equipment. The badges are sent to Ottawa periodically where they are tested for radioactivity exposure. The dental assistant’s badge indicated a high degree of exposure and she no longer wished to remain in the dental department where X-ray equipment is located. Dr. Hough thought that he was being accused of having tampered with the dosimeter and began to feel that others in the department were “against him". An added degree of isolationism developed in Dr. Hough when no one replaced his dental assistant and he was compelled to work alone, in the main, from October 83 until the date of his suspension, on January 31, 1984. We should mention that although the remaining dental assistant in the department normally assisted Dr. Williams, she sometimes assisted Dr. Hough during this period. Moreover, the dental hygenist likewise assisted Dr. Hough as much as possible but she worked only part time, three days a week. We believe that it was a trying time for Dr. Hough and this is especially so when it is realized that the patients are mentally handicapped in varying degrees, which, we were informed, did not make matters easier. Additionally, the remaining dental assistant, Mrs. Lois Hawke, had been considered by Dr. Hough to harbour a deep seated resentment against him. She had been employed in the department since 1956 and, according to Dr. Hough, had resented his taking over the department when the previous dentist, Dr. Lankin retired in the early 1970’s. Actually, Dr. Hough’s testimony was corroborated by Dr. Emmett Cleary, who had been employed in charge of the medical unit at the centre from 1968 to 1976. Dr. Cleary stated that Dr. Lankin had given Mrs. Hawke a measure of responsibility such as setting up appointments and ordering supplies which Dr. Hough had assumed when Dr. Lankin retired. Dr. Cleary stated that he had to talk to Mrs. Hawke in 1972 or 73 about her attitude, etc, who accepted the discussion with hostility. Mrs. Hawke had also assumed the role of inventory Clerk of Supplies after Mr. Njoku assumed the role of Supervising the department. It will be remembered that Mrs. Hawke was now Dr. Williams dental assistant. Dr. Hough soon began to believe that Dr. Williams and Mrs. Hawke had plotted to keep Dr. Hough from having direct access to supplies when he decided they had moved the supplies elsewhere in the centre and had placed them under lock and key.

Matters continued to deteriorate. Dr. Hough soon found Mrs. Hawke avoiding him at all costs, even to the point of refusing to acknowledge his salutory “Good mornings”.

When January 1984 arrived the department had become quite tense. It was during January when inventory orders were submitted for the next fiscal year, Mrs. Hawke had consulted with Dr. Hough concerning his needs and, when finished, she submitted the order to Dr. Williams for her approval. Dr. Williams considered some of Dr. Hough’s requirements to be for obsolete items and decided to speak to him on January 31 to go over his list. According to Dr. Williams, and corroborated by Mrs. Hawke, her meeting with Dr. Hough was very unpleasant. He quickly became quite hostile saying he did not have adequate supplies. He began to move rapidly around his operatory, opening and closing drawers and cupboard doors. He accused Dr. Williams of keeping supplies locked away and when she tried to tell him they were no longer locked he used profanity and called her a liar, a phony and a cheat. He also tapped her shoulder with his finger or hand. He then said he would refuse to talk to her further.

Dr. Williams testified that she was quite frightened for her safety. Then she along with Mrs. Hawke and the dental hygenist left the department and went to Mr. Njoku’s old office where they met his former Secretary who still occupied the outer office. Mr. Cornish was summoned and he persuaded the three to return to the department, although he testified that all three were visibly shaken over the experience,

A short time later, Mr. Cornish, along with Mr. Hutchings, Area Administrator, Human Resources, called Dr. Hough to a meeting whereupon he was suspended, with pay, for the rest of the day and was ordered to report to Mr. Cornish the next morning at which time, he would be advised of any further action to be taken. The next day Mr. Cornish suspended Dr. Hough for twenty working days, without pay.

Mr. Cornish admitted under cross examination that he had decided to suspend Dr. Hough for the remainder of the day on January 31 before he spoke to Dr. Hough. He also decided to suspend Dr. Hough for the further period without pay before he met with Dr. Hough on February 1st. Therefore, according to Mr. Cornish, the decision to suspend Dr. Hough was reached without first obtaining Dr. Hough’s version of what had transpired. He testified that he acted on the information that had been supplied to him by Dr. Williams and Mrs. Hawke and the dental hygenist, Mrs. Barbara Vella. This testimony is supported in his letter to Dr. Hough on February 1st informing him of the twenty working day suspension. The letter reads:

At approximately 2.45 p.m. on Tuesday, January 31st, 1984, I suspended you with pay from employment at Huronia Regional Centre for the balance of the working day. This action was taken on the basis of allegations about your behaviour during a discussion with your supervisor in your place of employment on Tuesday, January 31st, 1984. These allegations were made by your supervisor and other staff in the dental clinic. I intend to fully investigate these allegations in as expeditious a manner as possible. I do not feel that you should be at your workplace during the period of this investigation. Therefore, in accordance with the powers delegated to me by the Deputy Minister, I am suspending you from your duties at Huronia Regional Centre. This action is taken in accordance with Section 22(1) of the Public Service Act and the regulations attached thereto. This suspension will be without pay and will remain in effect until February 28th, 1984, unless withdrawn by myself in writing.

Dr. Hough’s grievance, prepared on February 9 claimed that he was improperly suspended on January 31st and February 1st. Dr. Williams responded on February 17 denying the grievance.

On February 27, Mr. Cornish renewed the suspension, without pay, for another twenty working days. His letter reads as follows:

In my letter of February 1, 1984, I suspended you from employment for a period of twenty working days up to and including February 28, 1984. In this letter I indicated that I would be investigating certain alleged concerns about your professional behaviour at H.R.C.

Our investigations to date have raised a number of matters which I feel must be further investigated. I am therefore suspending you from your employment at H.R.C. for a further period of twenty working days. This further suspension will therefore be in effect up to and including March 27, 1984 unless withdrawn by myself in writing. The suspension will continue to be without pay.

This action is taken in accordance with Section 22(1) of the Public Service Act and the regulations attached thereto.

Mr. Clegg responded to the letter on February 28 setting out his objections to the continued suspension of his client.

It is to be noted that in his February 27 letter, Mr. Cornish had expanded the reasons for continuing the suspension. On February 1st the stated reasons for the suspension was the incident of January 31st. But in his letter of February 27 he states “our investigations to date have raised a number of matters which I feel must be further investigated…”

The evidence does not totally support Mr. Cornish’s comments. In his examination in chief he was asked what led to the decision to further suspend Dr. Hough on February 1st. He testified as follows: “I had been given information over a lengthy period of time and I became concerned when I got this information (re what had happened on January 31st). I was concerned over whether he was professionally fit to practise. From the hospital records and in reviewing the information that had been supplied from the previous co-ordinator (Mr. Njoku), I felt that I had to investigate fully .”

If Mr. Cornish was concerned over prior information concerning Dr. Hough, he did not reveal it in his letter of suspension of February 1st. He testified that he had been aware of Dr. Hough’s aggressive attitude against his staff for approximately one and one half to two years previously but had never brought the matter to Dr. Hough’s attention. He stated that he knew Mr. Njoku had nevertheless brought such matters to Dr. Hough’s attention because of the letters in his file to that effect.

We are troubled further with Mr. Cornish’s statements in his February 27 letter wherein he states “in this letter (February 1st) I indicated that I would be investigating certain alleged concerns about your professional behaviour at H.R.C.” Our reading of the February 1st letter does not go nearly that far. That letter referred solely to his behaviour during a discussion with Dr. Williams on January 31st. In any event, Mr. Cornish shortly thereafter contacted the Royal College of Dental Surgeons and requested the College’s assistance in an investigation of Dr. Hough. The College informed Mr. Cornish that it only acted on complaints against its members. Notwithstanding all of this, Mr. Cornish informed the Board that the College had undertaken an investigation so we must assume that a complaint was eventually filed with the College. We were also informed that the investigation by the College was continuing when these hearings were held in August and that Mr. Cornish was unaware of the stage which the investigation had reached nor could he offer any suggestions when the investigation might be completed. Moreover, the Board was given to understand that the only investigation being conducted is that of the College. Mr. Cornish and his staff have assisted the College in that they have opened their files, etc, to members of the College when they have visited the centre. These matters will be discussed in greater detail later in the decision.

Meanwhile, the foregoing discussion illustrates several deficiencies in the manner in which the Ministry proceeded in this matter. We are concerned that Mr. Cornish did not first seek an explanation from Dr. Hough of his actions before suspending him on January 31st. Similarly, the suspension beginning on February 1st was decided by Mr. Cornish before hearing any explanations from Dr. Hough. Arbitral jurisprudence has established that all pertinent factors must be assessed by the employer before disciplining an employee, see Re Retail, Wholesale and Department Store Union, Local 529 and Northern Foodmarts Ltd. (1969) 1969 CanLII 1465 (ON LA), 20 L.A.C. 214. In one case where the employee was precluded from offering an explanation prior to being disciplined the arbitrator modified the penalty imposed. See Re United Automotive Workers and Sperry Gyroscope Ottawa Ltd (1966) 1966 CanLII 797 (ON LA), 17 L.A.C. 426. In the instant situation, Dr. Hough did not deny in his testimony before the Board that the altercation with Dr. Williarns occurred on January 31st. So our concern is tempered somewhat. Nevertheless, we believe that it was incumbent upon Mr. Cornish to acquire all of the pertinent factors before imposing any discipline on Dr. Hough and he could hardly have acquired all of them until he had heard Dr. Hough’s explanation.

We are also concerned that the Ministry failed to carry out certain obligations which Regulation 881, Section 18 imposes upon it. This concern will be set out in detail in the following paragraphs.

Section 18 of the Regulations sets out what is required when a suspension pending an investigation occurs. The section reads:

(1) Where the deputy minister suspends a public servant from employment pending an investigation, the period of suspension shall not exceed twenty working days.

(2) Notwithstanding subsection (1), where in the opinion of the deputy minister, an additional period of time is required to complete the investigation, the deputy minister may renew the period of suspension for not more than twenty working days in each case, for such additional periods as are considered necessary.

(3) Where a public servant,

(a) habitually fails to comply with attendance regulations or directives;

(b) absents himself without permission during his prescribed hours of duty;

(c) reports for duty while incapable of performing his duties;

(d) misuses government property or uses government property or services for purposes other than government business; or

(e) fails to obey the instructions of his superior,

(f) and where, in the opinion of his deputy minister, the circumstances do not amount to cause for removal from employment or dismissal under section 22 of the Act, the deputy minister, or an official of his ministry who is authorized by him, may, after a hearing impose a fine equal to not more than five days pay.

(4) Where, in the opinion of a deputy minister, there may exist cause for removal of a public servant from employment or for dismissal of a public servant from employment, the deputy minister shall appoint a time for and hold a hearing.

(5) The public servant whose conduct is the subject of a hearing pursuant to this section shall be given reasonable notice of the hearing by the deputy minister.

(6) A notice of a hearing shall include,

(a) a statement of the time, place and purpose of the hearing;

(b) reasonable information of any allegations with respect to the conduct of the public servant that may be relevant to the hearing; and

(c) a statement that if the public servant does not attend the hearing, the hearing may be proceeded with in his absence and he will not be entitled to any further notice in the proceedings.

(7) The public servant whose conduct is the subject of a hearing may at the hearing,

(a) be represented by an employee representative;

(b) call and examine witnesses and present his arguments and submissions; and

(c) conduct cross-examination of witnesses reasonably required for a full and fair disclosure of the facts in relations to which they have given evidence.

(8) Where a deputy minister delegates to a public servant in his ministry his powers and duties in respect of a hearing mentioned in this section, the delegate shall hold the hearing and shall report thereon in writing to the deputy minister.

(9) The report of the delegate to the deputy minister shall include the record of the hearing and the recommendation of the delegate together with his reasons therefor.

(10) A deputy minister or his delegate who holds a hearing pursuant to this section shall compile a record of the proceedings that shall include,

(a) the notice of the hearing;

(b) all documentary evidence produced at the hearing;

(c) the transcript, if any, or a statement or summary of the oral evidence given at the hearing; and

(d) the text of any written submission or arguments presented at the hearing.

(11) A witness at a hearing pursuant to this section is entitled to be advised by his counsel or agent as to his rights, but the counsel or agent of a witness is not entitled to be present except when the witness is giving evidence and may take no other part in the hearing without leave of the deputy minister or his delegate holding the hearing.

(12) Where, after holding a hearing and considering the evidence produced or given and the submissions or arguments presented at the hearing or, where the hearing is held by a delegate, after considering the report of the delegate, a deputy minister is of the opinion that there exists cause for removal from employment or for dismissal from employment of a public servant whose conduct was the subject of the hearing, the deputy minister may remove or dismiss the public servant from employment.

(13) Where a deputy minister dismisses a public servant from employment for cause, the deputy minister shall,

(a) deliver to the public servant a notice of the dismissal setting forth the reasons therefor and advising him of his right to a hearing by the Public Service Grievance Board; and

(b) send a notice of the dismissal to the Commission and the Provincial Auditor.

(14) In this section, “employee representative” means a person who is nominated by a public servant whose conduct is the subject of a hearing pursuant to this section to act on behalf of the public servant in respect of the hearing. R. R. O. 1980, Reg. 881, s. 18.

Section 18 uses the words “suspend”, “remove” and “dismiss".’ At first blush, the words “suspend” and “remove” may appear to be synonymous. However, the New Webster Encyclopedic Dictionary gives definitions which immediately conveys different meanings. “Suspend” is defined “...to cause to cease for a time; to interrupt temporarily; to hold in a state undetermined (to suspend one’s choice); to debar for a time from any privilege; to remove temporarily from an office;...". “Remove” is defined “To shift from the position occupied; to put from its place in any manner; to move from one place to another;...”. Of course, “dismiss” has a different meaning which is referred to in Section 18(13) and which is not relevant to the instant situation.

We understand from the foregoing definitions that “suspend” in Section 18 means to prevent an employee from performing his normal duties temporarily pending further action being taken. The employee is prevented from attending his place of work. “Remove”, on the other hand, means to place an employee in some position other than the position that had previously been occupied by the employee. In both situations, it may be necessary to “suspend” the employee temporarily pending a decision whether to “remove” or “dismiss” the employee, or indeed, whether to put the employee back into his former position with or without the five-day fine which is permitted under Section 18(3).

But regardless of the ultimate decision, Section 18 imposes an obligation on the Deputy Minister (or his delegate) to hold a hearing. The last sentence in Section 18(3) requires a hearing, as does Section 18(4). Section 18(1) empowers the Deputy Minister to suspend the “public servant from employment pending an investigation.” By reading Section 18 as a whole, the only obvious meaning that can be derived from the Section is that the investigation must be conducted by the Deputy Minister or his delegate, and one of the components of that requirement is that a hearing into the matter take place.

That is not what transpired in the instant situation. Mr. Cornish informed Dr. Hough that a full investigation was to take place. Then he contacted the Royal College of Dental Surgeons and requested it to conduct an investigation. Apparently, he considered that the obligations of the Ministry had then been met. His request to the College was made in mid February, 1984, and by mid August he had no idea how the investigation was proceeding nor had he any inkling when it might be concluded. Surely, such a course of action was not the intention of Section 18. Such an investigation by a third party could take additional months or years to complete. Indeed, it may never be completed. The Ministry has no control over the matter. Meanwhile, the employee continues to be suspended for successive twenty working day periods.

While we find that Section 18 imposes an obligation to conduct a hearing, we note that a time for holding such a hearing is not specified. Nevertheless, we believe the need to hold one reasonably quickly is inferred because of the mention of the twenty working day maximum for the suspension. While the twenty working days is renewable, it nevertheless does not detract from the sense of urgency in moving quickly to resolve the matter. This is only reasonable. The complainant in the instant situation was suspended without pay. He has a family with financial obligations. Surely it was incumbent upon the Ministry to solve the issue as quickly as possible. But, to repeat, it did next to nothing. We unhesitatingly reach the conclusion that the Ministry failed to comply with the requirements set out in Section 18.

But Dr. Hough seeks, among other things, a declaration that the suspensions of January 31st, February 1st, February 28th, March 28th and April 24th were improper. While the relief sought may appear to be vague, we understand Dr. Hough’s complaint to mean that the employer had no grounds to suspend him on any of these occasions.

With respect to the January 31st suspension, we cannot agree with Dr. Hough’s position. He was insubordinate to his supervisor, Dr. Williams, and could possibly have been charged with assault. The employer had reasonable grounds for removing him from the workplace given the events which occurred.

The suspension of February 1st raises several considerations. If it was based solely on the grounds that were set out in Mr. Cornish’s letter of suspension (reproduced on page 20) then we would have no difficulty in deciding that the employer was justified in imposing the twenty working day suspension in order to permit it to investigate the matter. But if it was based on other grounds as testified by Mr. Cornish then we would be compelled to decide that the employer erred in that it a) failed to inform Dr. Hough of the real reasons for the suspension or b) inaccurately informed Dr. Hough that he was being suspended over the alleged incident that occurred on January 31st. In any event, when Mr. Cornish’s letter of suspension of February 1st informed Dr. Hough that an investigation would take place he triggered Section 18 into effect which dictated that a hearing would take place as part of the investigation which we have discussed earlier. But again, we have found that the employer did not hold a hearing nor did it carry out any meaningful investigation on its own. Instead, it contacted the Ontario Royal College of Dental Surgeons to conduct an investigation. Actually, the employer really was seeking whether or not Dr. Hough was “professionally fit” to carry on his dental practice. While Mr. Cornish used the term “professionally fit” to describe the matter, we believe it would be more accurate to describe it as being “mentally fit” or “medically fit” or simply whether he had the capacity to practice dentistry. Dr. Hough had taken a two-month leave of absence in 1982 over stress and the situation existing in the department between October 1983 and January 31, 1984 could only be described as being very stressful for him (and for others). Moreover, Mr. Cornish testified that he was sufficiently concerned over Dr. Hough’s well being on February 1 that he advised him to see his doctor. Mr. Cornish also telephoned Mr. Clegg that day to express his concern and obtained Mr. Clegg’s assurance that he too would advise him to see his doctor. So, we conclude that the February 1 suspension had very little, if anything, to do with the altercation of January 31. That altercation simply triggered Mr. Cornish’s decision to investigate into whether or not Dr. Hough was “professionally fit” to practice dentistry. The evidence clearly established that Mr. Cornish’s decision was reached before the suspension was meted out on February 1. Whether or not the decision to call in the Royal College had likewise been reached at that time is unclear. However, that decision was reached in early February when Mr. Cornish contacted one Dr. Pennel, Registrar of the Royal College of Dental Surgeons, by telephone and requested assistance in investigating the matter. Dr. Pennel informed Mr. Cornish that the College only investigates complaints that are in writing. Mr. Cornish followed this telephone conversation up by writing to the College on February 15. Moreover, we are surprised that Mr. Cornish did not see fit to inform Dr. Hough about involving the College in his letter of suspension of February 27. It was only on March 6 that Mr. Cornish informed Dr. Hough of the College’s involvement and this was because Dr. Pennel advised him to do so. From all of the foregoing evidence, we conclude that before Mr. Cornish suspended Dr. Hough on February 1 he had decided that Dr. Hough’s “professional fit(ness)” was to be investigated.

It is our conclusion, therefore, that Dr. Hough ought to have been compensated from February 1 until the matter of “professional fit(ness)” was resolved. Had it done so, we would not probably have disturbed the employer’s action. It could probably have persuaded the Board that it was imperative to have Dr. Hough remain away from the workplace pending a decision from the College. But when it suspended Dr. Hough without pay we conclude that the suspensions were disciplinary and improper.

The fact that the employer compensated Dr. Hough on August 7 does not alter the fact that the suspensions were improper although the payment goes to the issue of remedy.

Dr. Hough has also pursued a claim for mental and physical stress, costs, interest, etc. Ms. McCully argued, inter alia, that we lack jurisdiction to award such remedies.

It will be remembered that Dr. Hough raised some of the above claims during the hearing for the first time and raised others in the post hearing written brief. In our view, such claims ought not to be awarded when raised so late in the proceedings. If they had been claimed from day one then different considerations would arise. For example, if the employer had been put on notice from the beginning that certain claims would be pursued it could have assessed these claims in deciding whether or not it should settle before proceeding to a hearing. By having failed to raise any such claims until the hearing, and later, the employer was prejudiced and ought not be compelled to pay them and we refuse to award them.

Because of the decision we have reached, we have purposely refrained from addressing the question raised by Ms. McCully as to whether the Board has the power to award such costs and damages. Moreover, the issue is extremely important and before delving into it we would appreciate having the issues fully argued. Ms. McCully informed the Board that she had been caught by surprise when several of the claims were raised. Also, she had only been informed of some of them when she received the post heating brief of Mr. Clegg. She then informed the Board that she had received instructions to forego responding to the brief.

Consequently, we do not believe that the issue had been fully argued. Under all of these circumstances, we are of the view that we should refrain from addressing the jurisdictional issue until it is fully canvassed before the Board on some later occasion. In any event, if we had delved into the issue and decided that we had the jurisdiction to make such an award we would have dismissed the claims for reasons that have been expressed earlier in the award.

In summary, we find that the January 31 suspension was reasonable and that part of the complaint fails. All of the subsequent suspensions were improper and we so declare. The claims for additional redress are dismissed for reasons in the decision.

Dated at Kingston, Ontario this 11th day of December, 1984.