P/0044/92

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

A. Arkelian

Grievor

• and -

The Crown in Right of Ontario (Ministry of Health)

Employer

BEFORE

J. Willes G. Deszca

Panel Chair Member

FOR THE GRIEVOR

A. Arkelian

FOR THE EMPLOYER

B. Christen Counsel Filion, Wakely & Thorup Barristers & Solicitors

HEARING

April 8, 1994; May 26, 1994; July 25, 1994; December 12, 1994.

Decision

The grievance in this matter, dated March 11, 1993, was filed with the Public Service Grievance Board on March 15, 1993 and reads as follows:

"Mr. Ian Springate March 11, 1993

Chairman

The Public Service Grievance Board

180 Dundas Street West

Suite 2100

Toronto, Ontario M5G 1Z8

Dear Mr. Springate:

I wish to file a grievance with the Public Service Grievance Board.

I am a senior executive with the Ontario Ministry of Health. Certain high-ranking officials at that Ministry, including the current Deputy Minister, a current Assistant Deputy Minister, and a previous Assistant Deputy Minister, have engaged in a prolonged pattern of activity designed to wrongfully deprive me of my employment. Among other things, they used deceit, coercion, and false inducements to improperly divest me of my position as Director. They contravened express undertakings made to me (as well as their legal duty) to endeavor to place me in another position and to fully support me in finding suitable employment. Instead, they actively obstructed me from obtaining available positions for which I was fully qualified. They flagrantly ignored merit, fairness, and seniority, acting instead on the basis of favouritism and illegal discrimination. They improperly manipulated the personnel administration process in order to purge the senior management group at OHIP of executives who had attained their positions through merit and to replace them with their own people. They repeatedly ignored fairness and consistency in deciding when to require “competitions” and when to waive them. They subverted the Public Service Act by invoking it without legitimate grounds to improperly declare me "surplus”. To justify that bogus declaration, they falsely asserted that my position had been “abolished” two years earlier. They falsely characterized my wrongful dismissal as an act of organizational necessity, even though in fact there was no shortage of work or funds and no material change in the organization. By falsely claiming otherwise, they exceeded their authority and committed an egregious abuse of process. In short, high ranking officials of the Ministry have engaged in repeated serious malfeasances, which have destroyed my career, and which, unless reversed, will bring the administration of Ontario’s public service into disrepute.

I am currently on "leave with pay" pending the involuntary termination of my employment. The improper behaviour complained of took place over a period of more than three years, up to the present day. The numerous events comprising that pattern of behaviour are described in the enclosed statement.

I have not filed a grievance before now for a number of reasons, including: two bouts of serious illness, continuous unsuccessful efforts to resolve the matter through many other means, and a reasonable (if ultimately illusory) expectation of resolving the matter through those other means. My failure to resolve the matter through those means is the result of continued, unexpected bad faith dealings by the Ministry, as is chronicled in my statement. Given the serious nature of my allegations, the manner in which the offences were methodically committed on an on-going basis over a prolonged period, the high rank of the offenders, and the acute extent of the damage caused by their actions, I respectfully submit that normal time limits should be waived by the Board. It is not only in my interest that these allegations be adjudicated, it is in the public interest.

Thank you for your consideration.

Yours sincerely,

A. J. Arkelian”

Attached to the grievance is an 18 page submission to the Board entitled "A Complaint Against The Ontario Ministry of Health, And Certain Of Its Officials, Arising From the Wrongful Dismissal of A. J. Arkelian, A Senior Executive In Its Employ.”

At the opening of the hearing, Counsel for the Employer raised several preliminary objections to the Board hearing the grievance.

These were:

1. The grievor was released pursuant to s. 22 ( 4 ) of the Public Service Act, R.S.O. 1990 c.P-17, as amended, and the Public Service Grievance Board lacks the jurisdiction to review the release of a Senior Management Group Employee under the Act.

2 . The grievance is untimely in that a grievance alleging wrongful dismissal must be filed within the prescribed time limits.

The Grievor was a long-service employee of the Ministry of Health. On March 17, 1992, the Deputy Minister issued a letter to the Grievor which declared the Grievor surplus pursuant to s. 22 ( 4 ) of the Public Service Act, with an effective date of March 31, 1992. The letter included a severance package equivalent to 12 month's salary in lieu of notice, with the option to have the salary paid as a lump sum in addition to the legislated termination benefits.

Counsel for the Employer submitted that the termination was proper and in accordance with the Act, and as such, was not wrongful dismissal. His position was that the Public Service Grievance Board did not have jurisdiction to deal with a surplus termination under s. 22( 4 ) with respect to Senior Management Group employees, and the Grievor was in that employment group. He submitted that the proper forum for a Senior Management Group employee was the court, and not the Public Service Grievance Board, and if the Grievor wished to challenge the Deputy Minister's decision, he was in the wrong forum. Counsel for the Employer argued that the termination was a proper release, but in the event that the Board decided to view the release as an alleged dismissal, then the grievance was untimely, as it was filed some eleven months after the time limit expired. He submitted that the Board should not extend the time for filing to validate the grievance, as there was no evidence put forward by the Grievor to justify the extension of the time limits. He argued that the Grievor's commentary attached to his grievance does not constitute agreed facts or evidence as the Grievor was not called as a witness to give evidence to support his allegations and statements. He cited PSGB case P/1/88 Oke v. The Crown in Right of Ontario (Apr. 26, 1989) as support for his position on the matter.

The Agent for the Grievor submitted that the release of the Grievor was a disguised dismissal, and as such, this Board had jurisdiction to hear the grievance. The Agent for the Grievor also submitted that the grievance was timely as the grievance was filed before the 12 month's notice period expired. He argued that the relevant time was not when the notice of termination was given, but when the period expired. He further argued that the Board was not bound by any precedent or limitations on its extension of the time limits for filing of the grievance, and should extend the time for filing in this instance.

This Board has carefully considered the evidence and arguments put forward by Counsel for the Employer and the Agent for the Grievor. The jurisdiction of the Public Service Grievance Board is delineated by the Act and the Regulations pertaining thereto, and has determined its jurisdiction with respect to the Senior Management Group employees to be limited to grievances concerning alleged wrongful dismissal. The Grievor in the instant case has expressed his grievance in those terms, and his Agent has characterized the grievance as wrongful dismissal. This Board is accordingly prepared to consider the grievance as an alleged wrongful dismissal grievance, the proof of its nature to be established by the Grievor.

To characterize the grievance as a wrongful dismissal grievance, however, raises the matter of timeliness under Regulation 977. Dismissal grievances, are normally grievances issued under s. 13(13) of the Regulation. The Grievor alleges that notwithstanding that the letter of release refers to s.22(4) as the basis for his release, his grievance is in fact a dismissal grievance. On this basis, the matter of timeliness arises, as dismissal grievances must be filed within 21 days from the receipt of the notice of dismissal under s. 37 of Regulation 977.

s. 37 of Regulation 977 is clear in terms of filing times.

The provision reads as follows:

s. 37 A person who has received notice under subsection 13(13) and who believes that he or she is being wrongfully dismissed, may, within twenty-one days of the receipt of the notice, apply to the Board for a hearing by delivering to the Chair of the Board an application for hearing including his or her grievance.

The notice of release which the Grievor alleges to be a dismissal notice was dated March 17, 1992, to be effective on March 31, 1992. The grievance was not filed within the prescribed 21 day period required by s. 37 of Regulation 977, and the Grievor waited until the following March 17, 1993 before filing the grievance with the Board.

Section 54(b) of Regulation 977 permits the Board to exercise its discretion to extend time limits. Arbitral authorities suggest that in considering the exercise of its discretion an arbitration Board should consider the reason for the delay, the length of the delay, and the nature of the grievance itself. (See for example: Becker Milk Company Ltd. and Teamsters Union, Local 647 (1978) L.A.C. (2d) 217; PSGB case P/5/90 Doris Adesserman and The Crown in Right of Ontario (Mgmt. Bd. of Cabinet) Nov. 13/90; PSGB P/18/87 Arnott A. Whitney and The Crown in Right of Ontario (Min. of Transportation) Oct 12, 1988 (Brent). This Board is also prepared to consider the above noted factors appropriate in its consideration of the case before us.

The grievance alleges wrongful dismissal, and as such, one would expect that it should deserve prompt attention by a grievor. The length of the delay is almost 11 months, and the reasons for the lengthy delay are not before the Board in the form of testimony by the Grievor, or by evidence entered by agreement of the parties. The grievance itself refers to “two bouts of serious illness, continuous unsuccessful efforts to resolve the matter through many other means, and a reasonable (if ultimately illusionary) expectation of resolving the matter through those other means.” His lengthy 18 page statement makes some reference to the duration of his illness and to some of his efforts to have the matter resolved, but fails to elaborate on the reasons for the delay. No evidence was given by the Grievor to explain or support the sketchy reasons given, notwithstanding the fact that the Grievor was present at the hearing and could have testified. The Grievor was represented by an agent trained in the law, but no longer in active practice, and on this basis, this Board must assume that the decision not to testify to fully explain the delay was consciously made.

Given the lack of a satisfactory explanation for the delay in filing the grievance, this Board is not prepared to exercise its discretion to extend the time limits for filing, and finds the grievance untimely.

The grievance is therefore dismissed.

DATED AT TORONTO THIS 22nd DAY OF MARCH, 1995.