P/0145/96

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

F. Sampson

Grievor

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

J.A. Willes

Panel Chair

FOR THE GRIEVOR

F. Sampson

FOR THE EMPLOYER

M. Wilson Counsel Legal Services Branch Management Board Secretariat

HEARING

March 17, 1997

The Grievor, Mr. Frank Sampson, was employed at the AM20 level in the Ministry of Labour in the Office of the Employer Advisor, as Manager, Employer Services in the London Regional Office of the Ministry. As a result of restructuring, the Grievor was informed that the London Regional Office was to be closed, and was given a surplus notice by letter dated September 24, 1996. By letter dated November 27, 1996, the Grievor filed the following letter of grievance with the Public Service Grievance Board that reads, in part:

“Sir:

This is to notify you that pursuant to Section 44(1) of the Public Service Act, I am grieving the decision of the Ministry of Labour confirmed by letter to me dated September 24, 1996 to surplus my position of Manager of Employer Services with the Office of the Employer Adviser as of the same date.

The failure and/or refusal of the Ministry of Labour to continue to accommodate my permanent disability is in breach of my conditions of work under Section 44(1) of the Public Service Act, the provisions of the Ontario Human Rights Code and the Directive of Management Board Secretariat on Accommodation of Disabilities in the Ontario Public Service.

I am enclosing copies of correspondence from my lawyer, Mr. Ed Ducharme of the firm Gignac Sutts of Windsor, Ontario dated October 2, 1996 and the reply from the Ministry of the Attorney General dated November 15, 1996. My lawyer's letter to Deputy Minister Tim Millard highlights concerns we have about the real reasons for the termination of my position as well as for the Ministry of Labour's failure to continue to accommodate my disability. The replies to our concerns have systematically avoided all the issues that we have raised. Mr. Ducharme's letter to Mr. Millard does not require further elaboration at this time.

Parallel to this action which I am entitled to take under the provisions of the Public Service Act, I am also lodging complaints with the Ontario Human Rights Commission as well as Management Board Secretariat. Your immediate attention to my grievance is kindly solicited.

Yours truly,

“Frank M. Sampson”

The grievance came on for hearing on March 17, 1997, at which time Counsel for the Employer raised a preliminary objection to the jurisdiction of the Board to hear the grievance. Counsel submitted that the restructuring centralized the operations of the Office of Employer Services in Toronto, and the Grievor's position no longer existed. Counsel’s position was that the Grievor was properly released under s. 22(4) of the Public Service Act, R.S.O. 1990, c.P-47. Counsel for the Employer stated that the Grievor's disability (due to an injured leg) that placed a slight restriction on his ability to travel, did not qualify as disability under the Human Rights Code. Counsel's position was that the Grievor’s injured leg did not prevent him from receiving a surplus notice, as the Ontario Public Service would do what was necessary to enable him to compete for other positions. Counsel stated that the Grievor was not surplused because he injured his leg, but because his office was abolished.

The position of Counsel for the Employer on the Grievor's disability complaint was that the issue was now before the Human Rights Commission, and this Board should not address the issue, but leave the matter with the Commission to decide. In support of Counsel’s submissions, Counsel cited: P.S.G.B. P/0009/92 Donna Lee Jones and The Crown In Right Of Ontario (Ministry of Correctional Services) and Borowski v. Attorney-General of Canada (1989) 1989 CanLII 123 (SCC), 57 D.L.R. (4th) 231.

The Grievor stated that he had filed a Human Rights complaint in order to meet the time lines for such a complaint, and submitted that it was appropriate for this Board to also deal with the issue. The Grievor also stated that the offices allegedly closed were still in existence, and the people there continue to give advice under the new business plan of the Office of Employer Advisor, and continue to report to a manager. His position was that he was given a notice of surplus because of his disability, and not as a part of the reorganization of the office. The Grievor also stated that he was surplused because of the Employer's unilateral withdrawal of the accommodation agreement.

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The Board has carefully considered the arguments and the submissions of the parties, and in particular, the issue of the Grievor's Human Rights complaint. Central to the grievance is the question of whether the Grievor’s injured leg represents a ‘disability’ under the Human Rights Code, and this matter is currently before the Human Rights Commission for determination. Disability issues are matters that clearly fall within the jurisdiction of the Human Rights Commission, and the Human Rights Commission is the appropriate forum to address such disability issues. The practice of this Board has generally been to await the outcome of a Human Rights complaint, where the complaint has been lodged with the Commission concurrent with the grievance, as the resolution of the complaint may also resolve the grievance before the Board either in part, or in its entirety. Under the circumstances, and on the evidence, this approach would appear to be appropriate in this case as well. This Board is therefore prepared to stay proceedings in this matter until such time as the Human Rights Commission has disposed of the complaint and any appeal period expired, or the appeal decision released, as the case may be. The Grievor shall have 30 days following that date to bring the grievance herein forward again for hearing before this Board.

DATED AT TORONTO THIS 22nd DAY OF JULY 1997.