PSGB# P/0049/01

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Edwards

Grievor

• and -

The Crown in Right of Ontario (Ministry of Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Andrew Camman Polishuk, Camman and Steele Barristers and Solicitors

FOR THE EMPLOYER

Sean Kearney Counsel Management Board Secretariat

HEARING

December 18, 2002.

DECISION

Rev. Melodie Edwards grieves that she was wrongfully dismissed on May 30, 2001, after a heated exchange regarding the use of the worship centre at Hamilton Wentworth Detention Centre (HWDC). The employer's position is that the grievor abandoned her employment, and pursuant to section 20 of the Public Service Act (PSA), the employer removed her from the payroll on October 29,2001 and declared that she ceased to be a public servant on November 15th, 2001. The employer's preliminary motion to dismiss the grievance on grounds that Rev. Edwards was not dismissed, but abandoned her employment proceeded on the basis of documentary evidence and argument. No viva voce evidence was called.

The salient facts are not in dispute. Rev. Edwards commenced employment as a chaplain with the ministry in May1997. She is an ordained priest of the Anglican Church of Canada. Rev. Edwards objected to the use of the worship centre at HWDC for non-spiritual functions or meetings. The employer was using the worship centre for such things as mediation-arbitrations, which occur pursuant to the collective agreement between the Ontario Public Service Employees' Union and the employer. It was this use that led to the incident on May 30th, 2001, when Rev. Edwards photographed a mediation-arbitration. Rev. Edwards was summoned to Superintendent Morris’ office and was questioned about why she took photographs of the meeting. Rev. Edwards stated that the use of the worship centre for mediation-arbitrations was contrary to the ministry's policy, that any use of the centre must be consistent with its use as a place of worship. Rev. Edwards was asked to give the film to the Superintendent, which she refused to do. After further requests and further refusals, the Superintendent informed Rev. Edwards that she was relieved of her duties as chaplain until a meeting the next day, May 31st, 2001, at 11:00 am. Superintendent Morris also told Rev. Edwards that she was suspended for insubordination.

It is the grievor's view that the Superintendent terminated her employment during the meeting on May 30, 2001. It is the employer's view that she was not terminated, but suspended with pay.

The grievor's lawyer was unable to attend with her on May 31, so the grievor informed the employer that she could not be at the 11:a.m. meeting. The employer responded to the grievor's request for a reason for dismissal on June 1, 2001, stating that Rev. Edwards had not been dismissed. On June 4, 2001 Rev. Edwards was advised of the consequences of being absent without permission and the employer's right under section 20 of the PSA to declare that an employee absent for two weeks or longer without permission may be declared to have abandoned his or her position. Another letter was sent in July, and another in August telling her to report to work or provide a medical note with a request for leave. The grievor did not return to work or request a leave. A letter in October informed her that she was to be removed from the payroll on Oct. 29, 2001, giving her to November 15th, 2001 to notify the employer of whether she would return to work. The grievor did not respond. Further details of the evidence will be included as necessary in the reasons for the decision.

Submissions of the Employer

Sean Kearney, counsel for the employer, argued that the documents showed that the grievor abandoned her position. Counsel argued that Rev. Edwards was informed that she was absent without permission, that she must return to work, or the employer would rely on section 20 of the PSA. Mr. Kearney cited decisions of the Grievance Settlement Board (GSB), the sister board to the Public Service Grievance Board (PSGB), to argue that the employer must comply with the provisions of section 20 of the PSA by showing that the grievor was absent without official leave for two weeks or more: OPSEU (TAM) and The Crown in Right of Ontario (Ministry of Revenue) (1976) 0001/76 (Beatty); OPSEU (Roy)and The Crown in Right of Ontario (Ministry of Education) (1978) 0006/78 (Brunner); OPSEU (Jone) and The Crown in Right of Ontario (Ministry of Government Services) (1989) 1098/87 (Emrich); OPSEU (Szabo) and The Crown in Right of Ontario (Ministry of the Attorney General) (1991) 0292/91, (Saltman); OPSEU (Baldeo) and The Crown in Right of Ontario (Management Board Secretariat) 1270/93 (1995) (Finley). Counsel submitted that the grievor was informed in writing of the consequences of not returning to work or requesting a leave of absence. She did neither. Hence the employer declared that she had abandoned her position on November 15th, 2001.

Submissions of the Grievor

Counsel for the grievor, Andrew Camman, argued that the employer had discriminated against the grievor both before the May 30th incident and after. Counsel argued that the grievor was constructively dismissed on May 30th, 2001, and that she could not return to work because of the poisoned workplace. The grievor was deeply offended by the use of the worship centre for secular purposes such as mediation-arbitrations. It was this ongoing concern that led to the incident on May 30th. Counsel argued that the grievor believed that she was terminated and that she could not return to what she considered to be an unsafe workplace. Counsel argued that she was forced out of her position, that she did not abandon it.

Decision

Having carefully considered the submissions of the parties, and the evidence tendered, I have decided to dismiss the grievance. It is clear from the GSB case law that that board has jurisdiction to review whether the requisites of section 20 of the PSA have been met. Counsel for the employer agreed that the PSGB also has the jurisdiction to review whether section 20 of the PSA has been properly invoked. Section 20 provides:

A public servant who is absent from duty without official leave for a period of two weeks or such longer period as is prescribed in the regulations may by an instrument in writing be declared by his or her deputy minister to have abandoned his other position, and thereupon the position becomes vacant and the person ceases to be a public servant. R.S.O. 1990, c. P. 47, s. 20.

The first part of the analysis requires evidence that the employee has been absent without permission for two weeks or more. The board in Tam held that the next part of the exercise is to consider, even if a leave was denied, whether ” it could be established that the employee did in fact have reasonable and justifiable reasons for his or her absence.” The board in Tam went on to explain that it would in such a case be essential for the employer to establish that a requested leave “was not unreasonably, discriminatorily, or arbitrarily withheld.” ( p. 10).

The evidence before me clearly establishes that Rev. Edwards was absent without permission for more than five months. Although there might have been confusion in the grievor’s mind after the heated exchange between Superintendent Morris and herself, there should have been no misunderstanding after she received the letter of June 1, 2001. Superintendent Morris’ letter to the grievor stated in part:

I am responding to your e-mail and faxed correspondence sent to my office on May 31 and June 1, 2001 respectively. It is my understanding that Mr. J. Carvalho, Deputy Superintendent Programs, contacted you yesterday by telephone on my behalf to address your concerns and request a meeting with you for today.

On Wednesday, May 30, 2001, during a meeting in my office, I informed you that you were suspended with pay for the remainder of the day. As a result of the suspension I ordered you to report to the institution on Thursday, May 31, 2001 at 11:00 hours to attend a meeting. You were also advised that an employee representative of your choice could accompany you, if desired, at your expense. You were not “dismissed” or “relieved from duty” as you indicate in your correspondence dated June 1, 2001.

On Thursday, May 31, 2001, you advised us you would not be attending this meeting as you were unable to arrange for an employee representative to attend with you. In a later discussion with Mr. Carvalho, you stated you were unsure if you could attend a meeting on Friday, June 1, 2001 and indicated you would contact him at 08:30 hours Friday morning.

On Friday, June 1, 2001 we received a fax transmission from you which did not address Mr. Carvalho’s request for a meeting this date or indicate your availability for Worship Service on Sunday.

Therefore, it is our expectation that you will report for your next scheduled shift on Sunday, June 3, 2001. Furthermore, a meeting has been scheduled with you on Monday, June 4, at 11:00 hours in the boardroom. An employee representative of your choice, and at your expense, may accompany you if you desire.

In spite of this letter, the grievor continued to maintain that she had been terminated, and refused to come to work.

Even though decisions of the GSB have noted that there is no statutory requirement to notify an employee that section 20 of the PSA may be invoked, the employer did warn the grievor by letters dated June 4 and June 5. The letter of June 5 also made it clear that the grievor could request leave with or without pay, with the appropriate documentation, but that without such a request or return to work section 20 would be invoked.

Another letter dated July 18, 2001, from Michael Simpson, Regional Director, to Rev. Edward’s then lawyer, T. Shev Singh, also stated clearly that the employer wanted to meet with him and the grievor to resolve the matter. The letter also informed Mr. Singh that Rev. Edwards was on “an unauthorised” leave with pay. Mr. Simpson informed Mr. Singh that if Rev. Edwards was ill, something referred to by Mr. Singh in his letter of June 8, 2001 to Superintendent Morris, she needed to request a medical leave and provide supporting documents. As noted earlier in the summary of the evidence, the grievor was asked again in October 23, 2001 to return to work or request appropriate leave. She did neither. Thus the employer clearly satisfied the requirement that the grievor was absent without permission for two weeks or more.

The next question is if a leave was denied, then whether the grievor had “reasonable and justifiable reasons” for the absence. I have to conclude that she did not. First, and most importantly, the grievor never requested a leave – even though she was advised by her employer that she was still an employee and that she was absent from work without permission. The employer’s correspondence from as early as June 1, 2001 made it clear that Rev. Edwards had not been terminated. The employer repeatedly asked to meet with her and her representative in June, July and August. The employer also repeatedly requested that she return to work or request a leave. However, the grievor maintained that she was terminated, despite being told she was not, and despite the fact that the employer continued to pay her salary until October 29, 2001.

The only explanation given for her absence without official leave is that the workplace was “poisoned,” and that she was being harassed. The theory that she could not return is not consistent with the theory that she was terminated. There was no evidence that she ever filed a workplace discrimination and harassment complaint. In any event, the GSB in Roy held, in a similar case, that the grievor’s allegations of harassment and discrimination did not justify him refusing to go to work. Mr. Roy, like the Rev. Edwards, never asked for a leave. I am persuaded that there was insufficient justification for the grievor’s absence from work without permission.

Finally, since the two criteria have been met, (1) the absence without leave for two weeks or more, and (2) no reasonable excuse for the absence, and since there is no evidence that the Deputy Minister exercised the discretion under section 20 of the PSA in bad faith, discriminatorily or arbitrarily, then the grievance must be dismissed. For all the reasons noted above the board dismissed the grievance on January 23, 2003.

Dated at Toronto this 4th day of February 2003.