P-2013-0117

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Rory Kanerva

Complainant

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANT

Rory Kanerva

FOR THE EMPLOYER

Jennifer Richardson Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 18, 2014

Decision

1This decision deals with the complaint of Mr. Rory Kanerva, which arose from a period of transition in his employment from the Ministry of Child and Youth Services (MCYS) to the Ministry of Community Safety and Correctional Services (MCSCS). Mr. Kanerva claims relocation expenses for his move from Sudbury to Brockville to take up a new position as an Operational Manager at the Brockville Jail. The employer asks that the complaint be dismissed, on two separate grounds, i.e. that there was no breach of any term or condition of the complainant’s contract of employment, and the grievance was not filed within the 14 day time period allowed by regulation 378/07.

Factual Context

2The facts necessary to this decision are not in dispute, and are based on documentary evidence, as well as the oral testimony of Mr. Kanerva and his former Regional Director at MCYS, Mr. Wes Bell.

3In March 2012, Mr. Kanerva was working as a manager at the Cecil Facer Youth Centre in Sudbury, when it was announced that there would be a reduction of three managerial positions due to the downsizing of the facility. Two managers decided to retire, leaving one further managerial position to be eliminated. Senior management indicated that the decision about which manager would leave would not be determined by seniority, but by a “full file review”.

4Mr. Kanerva sought some assurances from his superiors as to what this process would mean for him. Although he was told that he was considered a very strong manager, and had been given an exemplary performance review, no one was able to give him any guarantees. Various options were made available, including job trades with managers in either MCYS or MCSCS who were close to retirement. He did not want to risk being involuntarily assigned somewhere that he did not want his family to live, such as Toronto, so he sought out a job trade with a manager at the Brockville Jail. He formally applied for the trade on May 10, 2012, and it was approved on June 11, 2012. The fact that Mr. Kanerva made these arrangements meant that no file review was necessary to downsize the third managerial position at Cecil Facer. Mr. Kanerva does not dispute that it was made clear at the time that there would be no entitlement to relocation expenses for job trades.

5Mr. Kanerva started working in Brockville in July 2012. His family was not able to join him in Brockville at that time, which lead to a period of disruption and stress as they lived over 500 kilometres apart. Mr. Kanerva underlines that, although his family had decided that securing his future in the Ontario Public Service by taking the job in Brockville was the best decision, it was not an easy one, or voluntary in the ordinary sense, and came with a big personal and financial price.

6Six weeks after he had started working in Brockville, Mr. Kanerva heard that two new managerial positions had been created at his former home institution, Cecil Facer. The employer’s undisputed evidence was that these were temporary positions, but it does not appear Mr. Kanerva was initially aware of that. He was not contacted by anyone at the facility to let him know in advance, or to invite him to return or apply for these positions. He found this devastating and unacceptable. After collecting information about the situation, and reflecting on what had transpired, he wrote to Mr. Bell in September, forwarded his complaint to the Deputy Minister in November 2012, and referred it to this Board in April 2013.

7Mr. Kanerva feels that the Ministry could have avoided the whole situation if they had taken all the available information concerning the staffing needs at Cecil Facer into account before eliminating the third position as a result of the downsizing. In particular, he notes that managers such as himself had worked considerable overtime because of staffing shortages before the downsizing, and that it was known at the time that there were managers who would not be able to work the floor during a labour disruption due to medical conditions. He thought planning for the downsizing should have included taking into account the fact that some of the existing managers had a need for accommodation which meant they were not able to work on the floor.

8At the time of the downsizing Mr. Kanerva had raised concerns in management meetings and spoken to his Manager, Mr. Claude St. Jean. He wondered how the facility would cope with fewer positions, when managers such as himself were already working excessive overtime because of the inability of some managers to work the floor when needed. He recalls being told that “we have to fail before we can rebuild”. Employer counsel stipulated that Mr. St. Jean’s recollection was that he said, “We have to at least try.”

9Further, Mr. Kanerva was distressed that no thought had been given to his personal situation, when he had over 25 years of dedicated service at Cecil Facer, during which he had acquired specialized skills such as ICIT (Institution Crisis Intervention Team) training, and cell extraction as well as having become an instructor. In light of this, the fact that no one thought to call him and ask if he was interested in returning to Cecil Facer hit him particularly hard. As well, some people assumed that he had done something wrong because he had left Cecil Facer after so many years and not been asked back, which Mr. Kanerva also found very hard to take.

10The employer’s evidence established that the two positions Mr. Kanerva would have liked to have been offered were temporary overage positions, beyond the institution’s regular complement, having been created as a result of contingency planning for a potential labour disruption. Mr. Bell, then Regional Manager for MCYS, testified that this was a result of a process separate from the downsizing announced

several months earlier in March 2012. In August 2012, the Ministry had to assess its management capacity in all the institutions, to ensure there were enough managers to work the floor if there was a labour disruption. By way of a promotion and a discharge, the temporary overage was reduced once the potential of a labour disruption had passed, returning the managerial complement to where it was when Mr. Kanerva moved to Brockville.

11In respect of Mr. Kanerva’s concern that it was completely predictable at the time of the downsizing that two managers with health issues at Cecil Facer would not be able to work the floor during a labour disruption, Mr. Bell testified that the contingency planning was done later, and that, as Regional Manager, he would not have been aware of the specifics of the health conditions of individuals. Further, his understanding was that at the time of the downsizing, the managers in question did not need accommodation to do their regular jobs, but in August were not able to commit to work the floor during a labour disruption.

12As to the fact that Mr. Kanerva was not called back in at the time of the creation of the temporary overage, Mr. Bell testified that it was nothing personal towards Mr. Kanerva, whose strong work record he acknowledged. The two ministries, MCYS and MCSCS, plan in partnership with each other, and one of the principles is that neither would do anything that would disrupt the other ministry if it could be avoided. Therefore, once Mr. Kanerva had made a permanent move, rather than a secondment, he would not be called back when facing a potential labour disruption, in an attempt to keep things as stable as possible. Moreover, Mr. Bell was not aware until the hearing of this matter that his family had not moved to Brockville when Mr. Kanerva started working there in July 2012.

13Mr. Bell testified that in light of Mr. Kanerva’s good record, he wrote in his response to Mr. Kanerva’s complaint in early October 2012 that if he wanted to return to Cecil Facer, such an application would be favourably considered if a vacancy arose, and that is still the case. However, Mr. Kanerva had not applied to return at the time of the hearing.

Considerations and Conclusions

14I have decided that this matter is best dealt with on its merits, and given the view I take of it, it is not necessary to address the employer’s timeliness objection or set out the parties’ submissions in that respect.

15Mr. Kanerva’s basic contention is that the employer has not acted ethically towards him, and has failed him personally as well as having failed to fulfill its overriding commitments to trust and fairness. As remedy, he seeks compensation for relocation expenses. In his written complaint, he mentions the

Relocation Expenses Directive in this regard. Further, he relies on a document entitled “Guide to Public Service Ethics & Conduct”, which applies to the whole Ontario Public Service, including MCYS. This Guide provides an overview of some of the key expectations in regards to ethical conduct for employees in ministries, listing eight organizational values which include trust and fairness. It contains statements elaborating these values such as “We act honourably and honestly in all our relations with the people we service, work with and who rely on us. We do our best to keep our commitments and fulfill expectations.” It further provides: “ We deal with others in an open, impartial and non-discriminatory manner. We ensure that the processes we use and the decisions we make are fair and seen to be fair.” It also includes statements regarding accountability for ethical behaviour and prudent use of public resources. Statements in elaboration of these provide: “Serve with honesty and integrity, in a manner that places public interest above personal interests”, and “Use public resources to achieve authorized purposes in accordance with rules and procedures that govern their use.”

16Mr. Kanerva feels he and his family were treated badly and unfairly and that MCYS was not duly diligent in this respect. More generally, he expressed the view that the interests of managers are not adequately taken into account by senior management. Further, he is of the view that it was not fiscally prudent for the employer to act as it did when the two new positions became available. He noted that the manager with whom he had done the job trade was being paid for the six months preceding his retirement. In Mr. Kanerva’s view, that manager could have been called in to deal with contingency needs, resulting in a more fiscally responsible approach.

17It is the employer’s position that the facts raised by Mr. Kanerva do not make out a case for any remedy from this Board. Reference was made to two earlier decisions of this Board: Antle v. Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 30741 (ON PSGB) and Allen v. Ontario (Community Safety and Correctional Services), 2009 CanLII 43639 (ON PSGB) where I had occasion to set out the elements of a successful grievance. Basically, in order for the Board to be able to award a remedy to a complainant, there must first be an existing term or condition of employment related to the facts complained of, something that is part of the grievor’s contract of employment. This is something more than a belief that something is unfair, or distress over an unwelcome state of affairs, no matter how deeply held. Secondly, there must be a breach of that term or condition of employment, and thirdly, there must be a link between that breach and a remedy that the Board is empowered to give.

18Employer counsel notes that, although there was understandable anxiety about the downsizing in the spring of 2012, there is no evidence that Mr. Kanerva was coerced into volunteering for a job trade in any way, or provided misleading or false information about the job trade process. Further, Mr. Kanerva did not suggest that he did not know the consequences of accepting the job trade and moving ministries, or that he did not understand it to be what it was, a permanent move, rather than a

secondment or temporary assignment. As well, the undisputed evidence is that the downsizing and the later contingency planning were two separate and distinct processes.

19Counsel for the employer observed that Mr. Kanerva’s central complaint appears to be that it was improper to create the new positions, but having done so, that the employer should at least have contacted him. The new overage positions were not filled by way of a posting, but by way of a call for expressions of interest locally, within the MCYS. Mr. Kanerva was no longer working in that Ministry in Sudbury, and would therefore not have been part of that process. More basically, though, it is the employer’s position that there is nothing in policy or legislation that required the MCYS to offer Mr. Kanerva one of the temporary positions or contact him about it. Nor was there any evidence of a practice to send such information to people outside the local area.

20There is no evidence that, at the time MCYS senior officials were doing the contingency planning in August 2012, the responsible people knew that Mr. Kanerva would have been interested in returning to Cecil Facer.

21As to Mr. Kanerva’s points about managers with health issues, employer counsel observes that the Ministry was not at liberty to assume that this would not change, and that it could have potentially been a contravention of the Human Rights Code to have made assumptions about their health status months in advance. Moreover, individual files do not reach the level of those planning Ministry preparedness for a labour disruption. Further, the policy against disrupting other Ministries during contingency planning had the valid business purpose of creating as much continuity as possible in the event of a labour disruption. Counsel acknowledged that things did not unfold the way Mr. Kanerva expected, but submitted that it had not been shown that this breached a term or condition of his employment, without which the Board has no valid basis to award any remedy to him.

22The first question to be answered is whether there was a term or condition of employment relevant to the facts in issue here. There were two identified in argument.

23As noted, Mr. Kanerva relies on the organizational values of trust and fairness, which he believes were betrayed in the process described above. The employer did not suggest that these were not terms and conditions of employment.

24The other term or condition of employment mentioned in argument, by the employer, is the set of terms offered for job trades for which an employee could apply in response to the Cecil Facer downsizing in the spring of 2012. As noted, the fact that these did not include relocation expenses was

not disputed by Mr. Kanerva. Further, the relocation expense directive mentioned in Mr. Kanerva’s written complaint makes it clear that employee-requested moves are not eligible for reimbursement of relocation costs.

25The second question to be answered is whether these terms and conditions of employment were breached. Starting with the more specific of the two, that relating to relocation expenses, it is very clear that the terms offered relevant to the job trade were respected, rather than breached. No relocation expenses were offered, and none were paid.

26Turning to the more general term and condition of employment, regarding fairness and trust, there is no disputing that, on a personal level, Mr. Kanerva experienced the failure to offer him the temporary positions at Cecil Facer in the fall of 2012 to be a breach of a duty of fairness to him. The issue that I must determine is whether, on a legal level, the employer‘s conduct amounted to a breach of the principles and organizational values set out in the Guide to Public Service Ethics and Conduct.

27In considering the statements set out above, I note that the obligations set out in the ethics and conduct guide contain wording that could be considered to have been breached, such as fulfilling expectations and the process being seen to be fair. Mr. Kanerva’s expectations were not fulfilled, and he did not see the process as fair. Nonetheless, in a contractual sense, I am not persuaded that the employer has breached a term or condition of employment in the facts of this case. For one thing, the employer was unaware of Mr. Kanerva’s expectations at the time it was doing its contingency planning, so it would have been only happenstance if they had been fulfilled. As far as Mr. Bell knew, for instance, Mr. Kanerva had volunteered to take a job trade, and had permanently moved ministries. There is no evidence that Mr. Kanerva had made the employer aware that he wanted to be considered for a move back to Cecil Facer until the complaint was filed. At that point, Mr. Bell made it clear that Mr. Kanerva was welcome to apply to come back.

28As to not seeing the process as fair, it appears to me that what happened here is a case of conflict between Mr. Kanerva’s needs or wishes and those of the overall correctional system. The organizational values relied on by Mr. Kanerva include reference to keeping commitments, putting the public interest over personal ones, and using public resources in accordance with the rules and procedures that govern their use. In the sequence of events described above, the employer fulfilled its commitments to Mr. Kanerva in terms of the job trade. It accepted his application, facilitated the transfer of ministries, and used public resources in accordance with the rules and procedures that govern their use, i.e. they did not pay relocation expenses, which was entirely in accordance with the offered terms of the job trade and the provisions of the relocation expense policy.

29In terms of the fact that the temporary positions at Cecil Facer were not offered to him, unfortunate though the effect was on Mr. Kanerva, I find that it was in accordance with the commitment MCYS had made not to disrupt MCSCS operations in its contingency planning, if avoidable. Further, it did not breach any commitment made to Mr. Kanerva. In order to have an enforceable contract, there has to be an exchange of mutual promises. The evidence does not establish that there was any promise in respect of opportunities at Cecil Facer once Mr. Kanerva had accepted the permanent transfer to MCSCS. Thus there is no promise that the Board could enforce in this respect. The general commitments to trust and fairness are not specific enough to translate into an enforceable contractual term to have considered him for the new overage positions.

30It appears that the real rub here is that Mr. Kanerva anticipated in the spring exactly where the Ministry found itself in the late summer, i.e. without sufficient able-bodied managers to cope in the event of a labour disruption. Nonetheless, and in summary of the above, I am not persuaded by the material before me that the employer arrived at that situation in breach of Mr. Kanerva’s terms and conditions of employment. He was essentially asking for the planning processes for downsizing and contingency planning to have proceeded together, and with personal consideration for alleviating the stress on his family occasioned by the transfer to Brockville at a time when his family members had not moved from Sudbury for reasons related to his wife’s employment and his daughter’s schooling. Although one can have a great deal of sympathy for Mr. Kanerva’s situation, there is no evidence that the employer committed to such a planning process, or that they knew of or were obliged to consider Mr. Kanerva’s personal situation in filling the temporary overage positions. Moreover, it appears it would have been in breach of their commitment to the MCSCS to avoid any unnecessary inter-ministry disruption to have returned him to Cecil Facer, temporarily or permanently, at a time when there was a potential labour disruption.

31I have also considered Mr. Kanerva’s statement at the hearing that, despite the Ministries’ interest in stability, managers are moved constantly. This general statement was not specifically disputed by the employer, but it does not change the fact that in the facts before me, which is what I must base the decision on, the Ministry appears to have acted in accordance with its commitment to minimize disruption in the fall of 2012. Although the senior managers are bound by the ethical principles and organizational values referenced by Mr. Kanerva, as are all levels of government employees, I am not persuaded that they were breached. Although Mr. Kanerva wished someone had picked up the phone or sent him an e-mail about the overage positions, in a gesture of consideration and transparency, for official purposes he was no longer part of the youth ministry or in the group from which an expression of interest was invited.

32Without a breach of a term and condition of employment, the Board cannot award any remedy. In the result, I find Mr. Kanerva’s complaint to reflect an unfortunate situation which this Board is not in a position to redress.

33For the reasons set out above, this complaint is hereby dismissed.