P/0020/93

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Dr. T. McGrath

Grievor

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

D. Leighton N. Agarwal

Panel Chair Panel Member

FOR THE GRIEVOR

Dr. T. McGrath

FOR THE EMPLOYER

D. Costen Counsel Legal Services Branch Management Board Secretariat

HEARING

December 17, 1993 March 14, 15, 28, 29, 1994.

INTRODUCTION

The Grievor, Dr. Teresa McGrath, was employed by the Ministry of Labour as a medical consultant in the Health and Safety Studies Unit (HSSU), a unit of the Health and Safety Policy Branch. On May 25, 1993, the Grievor was notified in writing that she had been declared a surplus employee under Section 22(4) of the Public Service Act R.S.O. 1990, c.P. 47 (the Act). The Grievor was given six months notice of the termination of her employment. She applied to the Public Service Grievance Board (the Board) grieving her release on the grounds that it was wrongful, and also bringing a grievance based on terms of employment and working conditions.

At the first day of the hearing into this matter the Employer made a motion to the Board to dismiss the grievance on the grounds that the Board was without jurisdiction to review a release under Section 22(4) of the Act. Counsel for the Employer relied on Tynella and the Ministry of Labour, P/0016/93, in his submission that we were without jurisdiction. Counsel argued that the Grievor was released from employment as part of wide spread budget cuts to the Ontario public service. The Ministry had to consider, in making its cuts, what “core business” it would continue to do and how best that core business would be carried out. Of the five medical consultants in the HSSU only two were to be kept. Dr. McGrath was one of those that was made surplus.

The Grievor argued that we should proceed to hear the grievance because the manner in which she was released was unfair and the decision to release her was based on an improper, inaccurate assessment and, therefore, her release was wrongful.

The Board made an oral ruling at the end of the first day of the hearings denying the Employer’s motion to dismiss the grievance. In the oral ruling we stated that Tynnela did not apply to the facts presented to us in the preliminary argument. In the Tynnela case, the Grievor admitted that the release had been bona fide under Section 22(4) of the Act. The issue Tynnela in was whether or not the notice period of six months was inadequate and, therefore, a breach of the Grievor’s working conditions and terms of employment. Since Dr. McGrath is claiming that her release itself is wrongful we decided to hear the case: this Board clearly has jurisdiction to look behind a release from employment proported to be pursuant to Section 22(4) of the Act, as this Board has indicated in earlier decisions and more recently in Gale and the Ministry of Tourism and Recreation, P/0002/90.

The Evidence

It is not contensious that the government decided in the spring of 1993 to reduce staff in the Ontario public service. This particular round of reductions was called the Expenditure of Control Plan (ECP). Dr. J.E. McCloskey, Director of the Health and Safety Policy Branch of the Ministry of Labour, at the time of the ECP, gave evidence as to how the ECP affected his branch. He was informed sometime in late March that further substantial cuts in the budget for the branch would be coming. The government indicated in early April that in making the expenditure reductions front-line service was to be preserved, if at all possible. The policy division, which was only two years old at the time, also needed to be protected. He was directed to look at technical and administrative support for potential areas of reduction in staff. The Directors were asked to review their “core business” which, for the Health and Safety Policies Branch, was carrying out the mandate of the Occupational Health and Safety Act and policies developed pursuant to that act.

Dr. McCloskey testified that there was a decision made that the branch could reduce the amount of research that it was doing, and also stop doing work for other ministries such as the Ministry of Environment and the Ministry of Health. Final targets for reduction in costs established by cabinet turned out to be 1.7 million within Dr. McCloskey’s division. The Health and Safety Policies Branch’s target amounted to a fifty percent reduction of their total budget, or $880,000. This figure was reduced somewhat at a later time to $830,000 as a target for reductions. In the end, there was $700,000 cut from the budget.

Dr. McCloskey testified that the ECP was even more of a challenge to his branch since there had been significant expenditure reductions in November 1992 and four positions had been lost. On April 23, 1993, after meetings with the Deputy and Assistant Deputy Ministers, the numbers of positions to be cut was announced. In the Health and Safety Policy Branch eight positions were to be eliminated, seven of those were in the HSSU.

On Friday, April 30, 1993, Dr. McCloskey was notified by E-Mail, from the Director of Human Resources, how to deal with multi-incumbent positions. Where, for example in this case, five doctors had to be reduced to a complement of two, an assessment was to be done on each individual based on skills, knowledge, and experience. Dr. McCloskey notified Dr. Sam Guirguis, the Chief of the unit, of the ECP and the cuts that were to be made to the HSSU. The assessment had to be developed and done by the following Monday, May 3, 1993.

Dr. McCloskey and Dr. Guirguis testified that in discussing the future of the unit there was a decision made to rewrite the job description of the medical consultant to exclude work for other ministries, and that the assessment was to reflect the new job description. It was decided that the studies in epidemiology had to be retained and, therefore, medical consultants with research skills in this area were required. Dr. Guirguis intended to do the work of supervisor/advisor/expert in the area himself.

Dr. Guirguis gave evidence that the assessment form is the kind of form that would be used in assessing candidates for a new position. They revised the job description of the medical consultant on the Friday, that is the day they were notified of the cuts. The assessment form was developed and scored over the weekend. Dr. Guirguis used information from each individual’s personnel file and the operating plan for that year to make each assessment. The Deputy Minister had directed them not to interview the five individuals.

After the initial scoring Dr. Guirjuis discussed the results with Dr. McCloskey. Dr. McCloskey noted in his evidence that there was a recognition during this meeting that they were missing information on people. However, they decided the results were appropriate in terms of the ranking and reasonable for “the performance of the new job.” Dr. Guirguis said in cross-examination that they had not chosen the doctors who were retained prior to scoring the assessment forms.

Dr. Guirguis was of the opinion that Dr. McGrath had the skills to assess the results of an epidemiological study, but that she had not demonstrated skills in epidemiological studies. He did state that he was aware of the studies that Dr. McGrath had done except the Legionella study (“A New Legionella Species, Fleeleii, Species Nova, Causes Pontiac Fever in an Automobile Plant”). He did not know that the Legionella study had been published since there was no note of it in the operational plan of the department.

Dr. Guirguis also stated that given the very limited time they were given to develop the assessment form and do the assessments of the five incumbents they did their best to make the assessments quickly. They recognized that they were not making these assessments with full information. Both Dr. McCloskey and Dr. Guirguis said they were sorry to have to lose Dr. McGrath. They considered her highly as a colleague.

The Grievor relied on several documents including a document undated, but titled “Business Case” (Appendix 1) , another entitled “Assessment of Medical Consultants/HSSU, dated May 1, 1993 (Appendix 2), a job description for the position of Medical Consultant which has no title or date (Appendix 3), and a document entitled “Assessment for Incumbent E” (Appendix 4), which was provided to the Grievor as her own assessment, after the decision to terminate her employment was made, and after she requested to see it, and a document entitled, “Comparative Assessment of Five Incumbents” (Appendix 5). As noted in the document “Business Case,” epidemiological research was deemed to be the major focus of the work of the unit.

The assessment form was divided into three areas: skills, knowledge and experience. The areas were further divided. For example, under skills the sub-categories included: analytical skills, communication, problem solving, etc. Some sub-categories were further subdivided into epidemiological research and technical studies. The potential score was noted in brackets behind each sub-category. The score was noted in the second column, and comments, in the third. A perfect score would have resulted in 300 points. The incumbents retained for the position of medical consultant scored 288 and 285 respectively. The other incumbents terminated scored 112 and 175. The Grievor scored 135.

The Grievor took the position that her assessment was done in a very unfair manner and was not done correctly. In the assessment form, under the “skills” section, under analytical skills, epidemiology research, the Grievor was awarded 10/30 for her analytic skills, 5/10 for her communication skills, 0/5 for her problem solving skills, and 0/10 for her ability to provide credible advice on epidemiological research, The comments beside the scoring noted that the Grievor had never conducted an epidemiological study, and had never reported the results of such a study in a paper. Comments also included that the Grievor had no experience in epidemiology. The form states that she is capable of providing credible advice with respect to technical studies only.

The Grievor took great exception to the scoring and comments meant to explain the scores on these sections and she was able to document the fact that she had done epidemiological research and written papers. These were, indeed, recognized as such by one of the employer’s witnesses giving evidence, Dr. Guirguis, although, as noted earlier, he had testified that he was unaware of the Legionella study.

On cross-examination Dr. McCloskey said while not all of Dr. McGrath’s experience was known at the time, the assessors were aware, to some extent, of the studies that she had done. But they didn’t consider them to be like the studies that they were planning in the future. Dr. McCloskey seemed to suggest that in several of the studies Dr. McGrath was not a major investigator. However, evidence given by the Grievor suggested otherwise and this was not refuted by the Ministry. The results of the Legionella study were published in the Annals of Internal Medicine in 1984. This study, according to the Grievor, was one of the most comprehensive investigations conducted by the Ministry of Labour. The Grievor was appointed by the Assistant Deputy Minister at the time to be the Ministry of Labour investigator to work in collaboration with the Centre for Disease Control in Atlanta. The Grievor was the third author noted in the publication regarding this study which is an indication also of her considerable involvement and importance to the study.

The Grievor also gave evidence regarding the knowledge category, the second area of the assessment form. In her evidence, the Grievor noted that while she was given zero under the skills sections and a comment of “no epidemiological experience,” she was awarded 20/60 for epidemiology and statistics in the knowledge category. In the general section of “Experience” she was given a score of 0/20 for her experience in epidemiology while working in the unit. The related comment notes that she had not conducted any epidemiological studies during her 17 ½ years with this unit.

Dr. McGrath was given a score of 0/7 for “Other Relevant Experience.” The comment with regard to the latter was that she had no epidemiological experience in previous jobs. The Grievor’s evidence showed that she had experience of epidemiological nature from her previous job which was in Australia, although the assessors had no knowledge of that. Again, in the skills section she was scored 0/30 for completed epidemiological studies. The comment beside this was again that she had never completed an epidemiological study.

The Grievor also noted that the assessment form placed a strong emphasis on statistical analysis. She took the position that in the past statistical analysis was not necessary for a medical consultant since statisticians were part of the team. She did statistical analysis in conjunction with the statistician. The evidence showed that one statistician was to be retained as part of the team.

The Grievor's evidence was that a significant part of her work was for the Ministry of Environment and, in fact, she wished to do more purely epidemiological research but was kept busy with other projects despite requests to her Chief. She was kept extremely busy with doing technical support work for the Biomedical Task Force, a bipartite management-labour committee, with the Ministry of Labour participating as an equal partner. Dr. McGrath acted as a facilitator for this committee, which involved extensive literature reviews of epidemiological research.

The Grievor's Argument

Dr. McGrath argued that her terms and conditions of employment had been violated when the assessment done to decide whether or not she would be kept in the position or terminated was done unfairly and inaccurately. She asked the Board to focus on how the assessment was done, the manner in which it was conducted, the results and how the results were used, and ultimately the impact that it had on her, both professionally and personally.

The Grievor argued that her scores of zero in numerous categories were not accurate. She pointed to the comments which were false, and to the evidence of her epidemiological studies. Dr. McGrath also argued that her skills that were both undervalued and unrecognized at times. For example, she argued that her ability to deal with stakeholders in a crisis situation was not recognized, even though this category was included on the assessment form.

Dr. McGrath argued further that the whole way the assessment had been conducted was improper: because the assessment had been done so quickly the review of information about each candidate had been superficial and led to inaccuracies. Since the assessors were given no opportunity to interview the incumbents or ask for any review or input there was no opportunity to correct any mistakes. In fact, she argued that the time allotted for the whole process, approximately three days, to re-write the job description, and do the assessment to decide which doctors would be retained was grossly inadequate.

Dr. McGrath also questioned the ability of her assessors to appreciate her epidemiological experience given Dr. McCloskey had no experience in the field, and Dr. Guirguis, while a medical doctor, had limited experience doing epidemiological studies. She was of the view that in assessing the five incumbent medical doctors to see who would do the most sophisticated analysis the two assessors were not in a position to judge.

Regarding the assessment form itself, she pointed to the inconsistencies within it. “Experience” enters under “Skills” under each sub-category, and is also referred to specifically in the “Knowledge” category in the comments section. She argued that there was considerable room for overlap in the scoring and, in fact, double scoring in certain areas where people were strong.

She questioned the weighting on the assessment form of 25% valuation of technical studies as opposed to 75 % of epidemiological research, when epidemiological research generally means cluster and sector studies and, in cross-examination, Dr. Guirguis stated that, in fact, no sector or cluster studies had been done in 1992-93. More importantly, she argued the assessment form did not address the core work as identified in that document which included policy development work. She argued that the Biomedical task force was identified as part of the unit’s core work and was something for which she gave a good deal of her working time, and yet she was not given credit for this experience.

In summary, Dr. McGrath argued that the assessment had been done unfairly and inaccurately and in violation of the terms and conditions of her employment. This assessment had led to her wrongful release. Initially when she filed her grievance she asked to be reinstated with back pay. However, by the time the grievance was heard, for various reasons including the fact that she had lost her public health medical license she was not able to ask for reinstatement and asked for additional notice if we were to find that the terms and conditions of her working had been violated and she had been wrongfully released.

The Employer’s Argument

In closing argument, the Employer argued that it was clear in the evidence of the Ministry that Dr. McGrath was held in high esteem by her colleagues. He argued that her release was proper under Section 22(4) of the Act in that she had only been released because there was a shortage of funds. He argued that in no way was her termination “disguised dismissal” proporting to be under the authority of Section 22(4) of the Act which would be improper. The evidence, he argued, must show some bad faith in making the decision to terminate employment and that this Board has no jurisdiction to review a decision made in good faith, citing Trudell and the Ministry of Agriculture and Food, P/0006/90, a decision of the Board.

Counsel went on to argue that, in fact, the Grievor had recognized that the two incumbents kept in the position were highly qualified, highly experienced individuals. The mistakes in scoring of her assessment would result in a negligible change in the scores, according to his argument. The Ministry, therefore, argued in summary that we should find there has been no bad faith and, therefore, a proper release.

Counsel argued further that should we find there was a wrongful release that the same principles for assessing damages apply as for arbitrations and that there is a duty to mitigate losses. Employer’s Counsel submitted supporting documentation to show that the Grievor had received six months notice and seventeen weeks of severance pay.

Decision

Having carefully reviewed the evidence and the submissions of the parties, we have decided to grant the grievance for the following reasons. We think the assessment process was fundamentally flawed and that there was a lack of procedural fairness in the way that it was conducted.

At the outset we would like to make it clear that we do not fault the individuals who had to carry out this process. It was clear that they were directed to act within very tight time constraints. It may be that those time constraints were necessary. However, the consequences of asking people to decide on the work that is most important to a unit, to rewrite a job description, and to assess five professionals in the matter of a few days without any input from them, resulted in a process that was fundamentally unfair.

The Employer argued that we were not in a position to substitute our decision for that of the Employer’s and we agree. But a corollary of this point is that the Employer cannot now justify the decision with evidence that even though the process was grossly flawed, they chose the correct people. This is something we are not in a position to judge.

Counsel for the Employer argued that we could only find a wrongful release should we find bad faith in the decision to release under Section 22(4) of the Act:

A deputy minister may release from employment in accordance with the regulations any public servant where he or she considers it necessary by reason of shortage of work or funds or the abolition of a position or other material change in organization.

We have no doubt that the decision to downsize, according to the ECP, was taken in good faith. However, even if a decision to make cuts in a multi-incumbent position is only made because of the need to reduce the costs of an operation, the method of releasing some and keeping others cannot be done in an arbitrary and capricious manner. And clearly, the Employer recognized that it had to attempt to be fair in its assessment of the incumbents. That is why the Employer went through the exercise of writing an assessment form and grading the five incumbents accordingly. Unfortunately, the evidence supports the conclusion that the assessment of Dr. McGrath was not done fairly.

The facts in the Trudell case are significantly different to the case before us and, therefore, it is of no assistance in deciding this grievance. In Trudell there was no evidence that the process of reducing the number of engineers from twenty-two to twelve was not procedurally fair. The issue was whether the dismissal of Mr. Trudell was for cause, and the Board found no evidence to support a wrongful release.

The evidence here clearly shows that the process of downsizing was not done according to the Government's own guidelines on separation which states that:

All civil servants are entitled to be treated with compassion and fairness regardless of the circumstances of their separation. (emphasis added)

Fairness required some rudimentary interview - a chance to be heard, given it was a multi-incumbent position and the chance to be heard may have changed the outcome,

The scoring of the assessment form on its face raises a doubt about its fairness. That the two men who are kept received a percentage score of 96 % and 95 % , and the three women who were terminated received scores of 37 % , 58 % , and 45 % (in the case of the Grievor), when all five had previously apparently been doing an excellent job as medical consultants in the unit raises a doubt about its fairness. This doubt about the fairness of the scoring was not dispelled by the Employer’s evidence. When this is coupled with the fact the assessment form shows potential for double scoring throughout and, therefore, double penalty throughout, it is clear that the form was not fair. The inequity of the assessment form, in and of itself, may not have been enough to result in an unfair process or, therefore, an unfair release of an employee. But it is fundamentally unfair when the actual form was based on information that was not accurate, and the Grievor was given no opportunity to review her assessment or give up to date information before the decision was made to terminate her employment.

Thus we agree with the Grievor that, taking all the factors together, the speed in which the assessment was done, the fact that the incumbents were not given any opportunity to be interviewed or review the assessments before the decisions were made, the fact that there were significant errors in the assessment form of this Grievor, on an assessment form which was not a balanced form to begin with leads us to the decision that the assessment was done without procedural fairness and, therefore, we must find in the Grievor’s favour.

Damages

It is appropriate in assessing damages to consider the impact of the wrongful release on the individual, the person’s age, potential of getting another job, and length of service. Dr. McGrath was with the Ontario Government for seventeen years. When her employment was terminated by the Ministry of Labour, because she held a special public service medical license which enabled her to be a registered physician in her position with the government, this license expired. Since these licenses are no longer granted, when Dr. McGrath lost her job with the Ministry she lost her ability to practice medicine in Ontario. Employer’s Counsel argued that we should not take this into consideration when assessing damages because it was an added benefit that she was permitted to practice medicine whilst being licensed in her position with the Ministry. We agree, however, Dr. McGrath’s ability to find work of a comparable nature was greatly reduced by the loss of her license. Thus, the loss of her license goes to the question of her ability to mitigate her damages. Dr. McGrath was unable to work as a physician without doing two years as a resident.

The only evidence provided by the Ministry that she had not tried to mitigate her damages was that she had not applied for one position as a field medical consultant that was available in Hamilton. In response to this evidence Dr. McGrath stated that the position had required field experience of which she had none and, therefore, she did not apply since she knew of others with field experience that were applying for this particular job. There was no other evidence that she had not attempted to mitigate her damages.

Given her seventeen years of service to the Ontario public service, we are awarding the Grievor compensation equal to seven months of notice; this is in addition to the notice she has already been given. Post-judgment interest at the rate prescribed by the Courts of Justice Act shall accrue on the seven months notice from ten days from the date of this award. Thus, for the foregoing reasons, we grant the grievance. We shall retain jurisdiction should any questions arise regarding the implementation of the award.

Dated at Toronto, this 27th day of July , 1995.