P/0022/93, P/0038/93

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Dr. M. Roy

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. M. Roy

FOR THE EMPLOYER

D. Costen Counsel Legal Services Branch Management Board Secretariat

HEARING

January 24, 1994; April 8, 15, 1994; October 20, 1994; February 7, 1995; March 14, 1995; September 28, 29, 1995; October 26, 1995

Dr. Marie Roy held a unique position within the Ministry of Labour as Medical Toxicologist until May 25, 1993 when she was notified pursuant to Section 22(4) of the Public Service Act, R.S.O. 1990, c.P. 47, as amended (the Act) that her position had been abolished and she had been declared surplus. Dr. Roy was given six months notice, making her termination date November 24, 1993. She filed a grievance with the Public Service Grievance Board (the Board) alleging that her termination was wrongful, having been done in bad faith, and also that the Employer had violated her working conditions and terms of employment.

The Employer takes the position that Dr. Roy's position was eliminated during a general and major downsizing of the Ministry and, therefore, is proper pursuant to Section 22(4) of the Act. The Employer denies the bad faith allegation. For the most part, the facts in this case are not contentious except as they relate to allegations of bad faith, which the Employer denies.

The Evidence

Dr. Roy holdsa Ph.D. in toxicology, an M.D. and a fellowship in occupational medicine. Before she began work with the Ministry of Labour she was a lecturer in pharmacology and clinical pharmacology at the University of Toronto. The Employer did not disagree with the evidence of Dr. Roy that she was uniquely qualified to hold the position of Provincial Medical Toxicologist and that, in fact, she probably has more expertise in the area of medical toxicology than any other person in the province.

Dr. Roy was promoted to the position of Provincial Medical Toxicologist at the PM23 level in March 1992. Prior to that, her title was Senior Medical Toxicologist, although Dr. Roy gave evidence that her job duties did not change significantly with the promotion. Throughout her tenure she performed speciality work in occupational health and medical toxicology. From 1987-1992, when she was in the position of Senior Medical Toxicologist, she directed three to five scientists, and medical staff in the Toxicology Unit in the Toronto head office. In 1992, after she was promoted to the position of Provincial Medical Toxicologist and, in part, due to a reorganization within the Ministry, she began to report to the Provincial Co-ordinator, Dr. O. Malik. No one reported to her in the Toronto office, but she continued to supervise the work of three scientists, who primarily did "section 34 reviews."

Dr. Roy stated in her evidence that from approximately 1987 she was personally less responsible for Section 34 notifications of new chemicals. It still amounted to approximately five percent of her work and mainly consisted of liaising with the policy branch and supervising scientists in the review of new chemicals. Because of new federal legislation on the use of chemicals in the workplace, Dr. Roy alsoworked to help co-ordinate the Ontario legislation with the federal guidelines. She assisted field staff by replying to questions on both new and existing chemicals and, where necessary, referred questions to the Policy Department.

Dr. Roy also supervised several fourth year students in the toxicology program in the University of Toronto. These students, under her guidance, produced papers in the form of question and answer sheets and consultant guidance notes. The information was of value to the Ministry in the areas of biological monitoring and medical surveillance of workers exposed to toxic substances. It was clear in the evidence that the Employer considered her to be a productive and exemplary employee.

The reason for eliminating her position, given in the letter terminating her employment, was that one of the prime responsibilities of the toxicologist is the work required under Section 34, “Notification of New Chemicals,” and that function had decreased since the introduction of the regulation known as WHMIS, the workplace hazardous materials information system. Also, federal initiatives had made Section 34 reviews less important. Since the very specific reason of the diminishing importance of Section 34 notifications was given to Dr. Roy, in the hearing she spent a good deal of time showing that Section 34 was not a major portion of her job description. She gave a great deal of evidence, which we have summarised in part and in brief, as to the other projects and responsibilities that she undertook.

When Dr. Roy was first notified of her job being abolished, she wrote to Dr. Malik, her supervisor, questioning the reasoning behind her termination. Dr. Malik explained that her position had been eliminated as part of the "Expenditure Reduction Program" and that the operations division had been requested to eliminate approximately 57 positions.

The ultimate decision to abolish Dr. Roy's position was made by Ms. Mary Tate, the then Director of the Occupational Health and Safety Branch. It was Ms. Tate's evidence that in the spring of 1993, the government decided that it had to reduce the deficit. The Ministry of Labour was required to reduce its budget by $35 million. There was a direction from the government to attempt to preserve front-line services and, therefore, head office "was impacted more significantly." Within the head office, the Occupational Health and Safety Branch was initially required to reduce its budget by $900,000 for the laboratories, and $900,000 for the main office. Dr. Roy worked within Professional and Specialized Services, which is part of head office.

A sub-committee of the Divisional Executive Committee, which included Ms. Tate, Mr. Arthur Gladstone, the central area Director of Labour and Human Resources, and Mr. Victor Pakalnis, Area Director of the Ministry of Labour, gave substantially the same evidence as to the process which occurred in making the decision as to which positions would be eliminated. The sub-committee made a recommendation to the Divisional Executive Committee for final approval. In discussing what positions to he cut, and specifically the position of the Provincial Toxicologist, there was evidence that Mr. Gladstone recognized the importance of the work that was being done by Dr. Roy, but felt that it could be covered largely by the hygienists with support from the toxicologist in the Policy Branch. Ms. Tate gave evidence that she considered Mr. Gladstone's recommendation, particularly given his long history in the Occupational Health and Safety Branch. She did not recall that Mr. Pakalnis had a position, but he did not disagree with Mr. Gladstone.

Mr. Gladstone's evidence was that part of the reason he thought the branch could eliminate the position of Provincial Toxicologist was because Dr. Roy took a leave of absence in 1990 to go to the Workers' Clinic, and Dr. Gloria Rachamin was seconded to Dr. Roy's position from the Policy Branch. Dr. Rachamin is a toxicologist with a Ph.D. and does not have a medical degree. Although the evidence is clear that Dr. Rachamin did not dothe same work as Dr. Roy, Mr. Gladstone said that they had no complaints during the year that she was in the position and that she, and others in the branch, covered the work that needed to be done.

Ms. Tate took the suggestion that the toxicological service could be provided by the hygienists with support from the toxicologist in the Policy Branch, to the then-Director of the Policy Branch, Dr. Ed McCloski. Dr. McCloski was retaining Dr. Rachamin's position as toxicologist in the Policy Branch and Dr. McCloski agreed that if Professional and Specialized Services needed the assistance of a toxicologist they could call on Dr. Rachamin.

Ms. Tate also discussed the possibility of abolishing the Provincial Toxicologist position with Dr. Malik. Dr. Malik was initially of the view that thisposition should not be eliminated. He gave evidence that his concern was whether or not he would he able to provide the service of toxicology to the field, but when he was assured that he could call on Dr. Rachamin from Policy, hisfears were somewhat allayed. Ms. Tate told Dr. Malik that she had to balance competing interests between support from head office and the field positions. Thus she decided that Dr. Roy's position should he eliminated.

Ms. Tate's evidence, corroborated by Mr. Pakalnis, was that during the review there was no discussion of individuals when they addressed what positions should he cut. In the Occupational Health and Safety Branch, 26 positions were eliminated out of 57 in the Operations Division. Ms. Tate said that it was an extremely difficult time and they were under a great deal of pressure in making thedecision to cut positions. She definitely relied upon Mr. Gladstone's long history in the Occupational Health and Safety Branch, and his advice to her that the position could be eliminated without completely eliminating the support of toxicology for the field. There was a clear recognition by Ms. Tate, Mr. Gladstone and Dr. Malic that the service would not be the same without Dr. Roy and that some functions would be lost. Ms. Tate thought well of Dr. Roy: it was generally the opinion of people in the branch that Dr. Roy was a dedicated and hard working-employee that did excellent work. Ms. Tate said that she was unaware of any animosity from anyone towards Dr. Roy.

In addition to the evidence which Dr. Roy provided the panel regarding her job duties, the Grievor tendered evidence that the former Director, Dr. Pelmear, had not been happy with Dr. Roy when she took two adoption leaves of seventeen weeks each, and a year's leave of absence to go to the Workers' Clinic. Dr. Pelmear did testify that he thought it was selfish for Dr. Roy to take these leaves. Dr. Pelmear stated that he had nothing to dowith the decision to abolish Dr. Roy's position in 1993 as he had left the branch in 1991.

Dr. Roy also gave evidence that Dr. David Leong's performance appraisals of her in the late 1980s were somewhat critical. Dr. Leong ceased being Dr. Roy's supervisor in 1989, and also testified that he had nothing to do with the decision to abolish her position in 1993. Ms. Tate did not discuss the abolition of the position of Provincial Toxicologist with either Dr. Pelmear or Dr. Leong.

The Grievor's Argument

In her final argument, Dr. Roy stated that the hearing had been a process of discovery for her, and that she had learned that she had been terminated in bad faith. She argued that the reason given for abolishing her position, that is, that Section 34, "Notification of Chemicals," had become less important, was evidence of the bad faith because Section 34 had become a very minor part of her job by 1993. Thus, she argued that the Section 34 reason for abolishing her position was false and that there had to be some other reason for her position to be abolished. Dr. Roy argued that the second reason given for abolishing her position, that she took a leave of absence to go to the Workers' Clinic in 1990, was inconsistent and false because others, including Mr. Gladstone, had been away on leaves and returned to the Ministry and yet had not been replaced.

Dr. Roy submitted to the panel that Ms. Tate's decision to abolish her position resulted from Dr. Pelmear, her former Director, telling Mr. Gladstone that she was not needed. Her argument for why Dr. Pelmear would do this is that he was angry with her for taking the two adoption leaves and the leave of absence to go to the Workers' Clinic in 1990. She argued that this is evidence of discrimination on the basis of family status and shows bad faith. In Dr. Roy's opinion, the decision to eliminate the position of Provincial Medical Toxicologist originated with Dr. Leong and Dr. Pelmear who, in her opinion, had some animosity for her. She further states that thisdecision was fundamentally flawed and tainted from the beginning because the Director considered opinions which were based on discrimination and had faith.

The Grievor argued further that the decision makers who abolished her position had no medical or toxicological experience and, therefore, were not qualified to decide whether or not her position should be cut or not. She argued that the managers did not have the ability to assess her position or appreciate what her job entailed.

One of her chief arguments in submitting that her position was abolished unfairly was that her work was now being done by Dr. Rachamin who has significantly lesser qualifications than Dr. Roy. Thus, Dr. Roy concludes that her termination was a camoflauged dismissal for cause and not a release from employment pursuant to Section 22(4) of the Act.

Dr. Roy relied on McGrath P/0020/93 (1995), arguing that there was no material distinction between it and her own case where the Board did decide that the grievor had not been properly terminated because of inherent unfairness in the process of deciding how individuals would be surplussed.

In summary, Dr. Roy argued that the evidence was that the decision to abolish her position as Provincial Toxicologist was made in bad faith and was discriminatory based on gender and family status. She argued that the terms and conditions of her employment were violated when the decision to abolish her position was based on inaccurate and discriminatory opinions. She submitted to the panel that the Employer used false reasons, including the diminishing importance of Section 34, to hide the bad faith. They then put a junior scientist into her position. She asked the panel to carefully assess the method of how the decision to abolish her position was made and follow the reasoning in McGrath to grant the grievance.

The Employer's Argument

Counsel for the Employer argued that thispanel must decide thiscase on the evidence presented. Counsel argued that Dr. Roy was released properly by the Deputy Minister pursuant to Section 22(4) of the Act, which permits the employer to release an employee from their position "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 within the organization." Counsel for the Employer argued that according to Trudell P/0006/90 (1991), thisBoard is not to second guess the business reasons for a position being eliminated, and that the onus is on Dr. Roy to show that her termination was in bad faith.

Counsel argued further that the Grievor had not provided evidence of bad faith or discrimination. There was no evidence to support the argument that the adoption leaves had anything to dowith the decision to abolish her position. There was no evidence that Dr. Pelmear and Dr. Leong had any input into the decision to eliminate her position in 1993. Not only was there no evidence of bad faith, there was significant evidence of good faith: in a competition for one of the regional physician positions Dr. Roy came second and eventually Dr. Roy secured a job at the Workers' Compensation Board. Counsel also argued that McGrath was distinguishable since it involved a multi-incumbent position.

Decision

In 1993, exercising what it called the "Expenditure Control Program" or ECP, the Employer cut many staff positions. It is clear that the Employer made the decision to downsize in good faith. However, the question before this Board is whether or not, the employer acted with fairness and with impartiality in eliminating Dr. Roy's position. Dr. Roy alleges that her termination was carried out in bad faith, that it was not fair or impartial. As such, she bears the onus of proving this.

After careful review of the evidence in this case, we have decided that Dr. Roy has not satisfied the onus of showing bad faith or any discrimination or unfairness in the decision to abolish her position and, therefore, we must dismiss the grievance.

We agree with the Employer's argument that there is no evidence which connects Dr. Pelmear's views of Dr. Roy and the adoption leaves to the decision in 1993 to abolish her position. There is no evidence to support that Dr. Leong's performance appraisal of Dr. Roy had any bearing on the decision to abolish her position or that the elimination of her position was a disguised dismissal.

Although the reason given to Dr. Roy for abolishing her position was a reduction in the numbers of "Section 34" applications, it is clear that it was only one part of the employer's reasoning to eliminate the position. Therefore, we are not convinced by Dr. Roy's argument regarding Section 34 work that any inference of bad faith can be drawn from thisevidence.

We accept the evidence of Ms. Tate, that she relied upon the business advice of Mr. Gladstone, that the position of Medical Toxicologist could be abolished without eliminating completely support for toxicology in the field. Further, we accept the evidence of Ms. Tate that a decision to eliminate Dr. Roy's position had nothing to dowith the doctor personally.

We do not accept Dr. Roy's argument that it was improper for people that were not doctors and scientists to make the business decision of cutting her position. This is often the case in government or corporations and there is certainly no evidence to support bad faith or anything improper in the method of making the decision to eliminate the position of Provincial Toxicologist.

Finally, we do not accept Dr. Roy's argument that there is an inference of bad faith or that her termination was a camoflauged dismissal because some of Dr. Roy's work is being done by Dr. Rachamin. The evidence is clear that the Employer made a business decision to eliminate Dr. Roy's position completely, and yet attempt to retain some of the service that she was providing to the field. That service was to be provided by hygienists and, on a consultative basis, by Dr. Rachamin who was in the Policy Branch.

The McGrath case is partially applicable here. We are of the view that, having made the decision to eliminate positions under the ECP, the Employer had a responsibility to act with fairness and impartiality in deciding which positions to eliminate, which it did in McGrath. However, in Dr. McGrath's case there was evidence that once the decision to eliminate positions had been made, there was unfairness in the method of choosing which individuals were to be retained and which individuals were to be released. Although we are cognizant that Dr. Roy truly believes the Employer acted in had faith in releasing her from employment, she has not provided this panel with evidence to support her grievance.

The grievance is, therefore, dismissed.

Dated at Toronto this 30day of September, 1996.