PSGB#P-2013-1964; P-2013-3118

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Ronkai

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Joseph Fera, Counsel (January 14 and March 21, 2016 only), and Zoltan Ronkai

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 14, March 21, April 22, 27, 29, May 10, October 4, 12 December 7, 19, 2016, February 14 and April 7, 2017

D E C I S I O N

1This decision deals with the complaints of Zoltan Ronkai in which he contests his suspension pending investigation, and later termination of his contract as an Operational Manager, claiming that both employer actions were a reprisal for the reporting of wrongdoing. The employer is of the view that there was nothing improper in its actions towards Mr. Ronkai.

The factual context

2Mr. Ronkai worked as a Security Manager at Maplehurst Correctional Complex (referred to below as Maplehurst) for 8 years prior to his retirement in June 2012 after 32 years of service with the Ministry. He returned to work as a part-time Operational Manager (OM), on a fixed-term contract, at the end of that same summer. His plan was to work for several more years, to the extent allowed without negatively impacting his pension. As events unfolded, his contract was terminated by letter dated November 4, 2013, with 16 weeks’ pay. Mr. Ronkai is strongly of the view that the termination of his contract, and events leading up to it, were a series of illegal reprisals by senior management because he reported wrongdoing.

3Both prior to and after his retirement, Mr. Ronkai was very concerned that another OM was committing time theft, falsifying time sheets, and getting paid for time not worked, and that management was not taking it seriously. He started collecting evidence in 2009, and showed it to three successive superintendents, but asserts that little or nothing was done about it. In early 2013, he decided to report both his allegations of fraud, and of inaction by Maplehurst management, to the Deputy Minister, his Ethics Executive.

4Shortly thereafter, Mr. Ronkai was suspended pending investigation of allegations which he believes were known by management to be groundless from the beginning. An investigation followed, which exonerated him. He was offered a return to work at two institutions other than Maplehurst, but he declined on the basis that he would not be safe, because staff would know he had turned in a fellow employee, and make his work life intolerable because of the Code of Silence.

5The Code of Silence has been referred to in a 2013 Ombudsman report on the subject, filed by Mr. Ronkai in these proceedings, as “an unwritten social incentive to protect and show solidarity for co-workers, even if it means conspiring to lie, destroy and falsify records.” The report concluded that: “Staff who breach this code become victims themselves, labelled as “rats”, ostracized, treated as pariahs, subject to direct and covert harassment and threats, and their personal safety is put in jeopardy.” Mr. Ronkai asserts that he has lived this, and that once he had reported both his colleague and his superintendent to higher authorities, he could never be safe in an institutional setting, because all levels of staff would punish him for reporting his colleagues, and perhaps not come to his aid when he needed it in the course of his duties.

6The complaints now before this Board arose from Mr. Ronkai’s conviction that it was he, as the innocent party, who uncovered and reported fraud, who was punished, while his colleague who was defrauding the employer and the public purse, was protected. Mr. Ronkai claims damages for the loss of income he would have earned if he had worked on contract for the years he had planned, and asserts that management should have protected him from the operation of the Code of Silence by finding him work in a non-institutional setting, or some other Ministry, rather than letting him go.

7The factual situation which resulted in the non-renewal of Mr. Ronkai’s contract has three main elements, which Mr. Ronkai sees as intimately and causally related, while the employer sees them as separately caused, and interrelated only in timing. These are:

a) Mr. Ronkai’s allegations that one of his colleagues had been involved in time-theft for several years.

I note that I have not named the OM accused of time theft, who was not a party or a witness in this case. This is because neither side’s case, in the end, requires the resolution of disputed facts about this OM’s behaviour, including the question of whether this OM should have been disciplined. Nor was the OM in question given notice of the possibility of negative findings about the accusations made by Mr. Ronkai.

b) Mr. Ronkai’s use of a maintenance cart to accommodate a mobility issue; and

c) Allegations against Mr. Ronkai of improper use of keys and access to offices and computers to which he was not assigned.

An overview of these elements, and how they interacted, follows before the consideration of the legal issues raised by these facts. I have carefully considered all the evidence tendered in this hearing, even if not specifically mentioned below, in the interests of keeping the decision to a reasonable length.

8Between 2009 and 2011, Mr. Ronkai dealt with two successive Maplehurst Superintendents, Doug Dagleish and Tom O’Connell, about his allegations about time theft. He showed them evidence, and discussed the matter with them, but was dissatisfied with the fact that no discipline was meted out, although there is some evidence that the OM in question was spoken to. Mr. Ronkai asserts that the OM in question was being protected because of family ties in the senior ranks of the Ministry.

9Mark Parisotto took over as Superintendent in December 2011, having been in the position of Deputy Superintendent, Administration, since May 2011. Mr. Ronkai did not raise the issue of time theft with him prior to his retirement in June 2012. Later that year, on October 23, a few months after Mr. Ronkai returned as a part-time OM, he raised his concerns about his colleague’s timekeeping with Mr. Parisotto. Mr. Ronkai asked the Superintendent to keep the matter confidential because he was concerned that he would have difficulties at work if news got out, because of the Code of Silence which deters complaints about work colleagues by punishing those who do. According to a later fact-finding report, he also indicated at the time that if Mr. Parisotto did not deal with the matter, he would take it to the Deputy Minister.

10After consulting with Mike Conry, then Regional Director, Mr. Parisotto decided to use an internal local investigator, Bob Ryan, to look into the matter. In late October, Mr. Ryan was assigned to do a preliminary fact-finding to see if the information provided by Mr. Ronkai had validity. As part of this process, information Mr. Ronkai had gathered in the form of video and sign-in sheets was given to Mr. Ryan, and Mr. Ronkai and another Security Manager, Michael McDonald, were interviewed. Mr. Ryan was asked to provide a preliminary report to the Superintendent before he interviewed the OM accused of time theft, as part of the process of deciding whether a further investigation was needed, including whether the matter should be assigned to the Correctional Investigation and Security Unit [CISU], which reports to the Assistant Deputy Minister, independent of the local institution in question.

11The Superintendent delegated the issue to his deputies, Janet Gauthier and Chuck Marchegiano, and they consulted Bart Nowak of Employee Relations once Mr. Ryan had analyzed the information provided by Messrs. Ronkai and McDonald. Mr. Nowak raised questions as to whether Mr. Ronkai had been authorized to do the investigation he had been doing and about the age and comprehensiveness of the information collected. Neither deputy was aware that Mr. Ronkai had any authorization for an investigation of his colleague. The subject of the Bill 168 amendments to the Occupational Health and Safety Act, and the possibility that unauthorized surveillance could be seen as harassment was raised in the consultation as well. There were also concerns about whether management would be seen to have condoned the behaviour given the length of time the behaviour had allegedly gone on without action by management.

12Following the consultation with Mr. Nowak, the deputies concluded that the evidence collected was not useable, and informed Superintendent Parisotto of this. Although Mr. Parisotto had authorized Mr. Ronkai to download information for Mr. Ryan’s factfinding, the Superintendent had seen no indication that the evidence collected earlier had been authorized by the previous Superintendents. He had found no documentation of any investigation, despite having read everything in the office when he took over as Superintendent. Nor had he heard anything about it, despite his overlap with Messrs. O’Connell and Dagleish in various roles, including time as Deputy Superintendent, during which he thought he would have heard about any active investigations.

13It was later established that Mr. O’Connell had authorized Mr. Ronkai to collect information on his colleague’s timekeeping, but I accept Mr. Parisotto’s uncontradicted evidence that he did not know this at the time he was considering the matter in the fall of 2012 and winter of 2013. Mr. Parisotto did not contact Mr. O’Connell, who was then superintendent at another provincial institution, or Mr. Dagleish, who had retired, because he did not want to risk compromising any further investigation of the matter, by having contacted them himself outside of an investigation.

14In any event, after consultation with the deputies, and the Regional Director, Superintendent Parisotto determined that the local investigation would not proceed further, and that the Deputy Superintendents would speak to the OM in question about proper timekeeping and signing in and out accurately. Deputies Gauthier and Marchegiano met with the OM on February 5, 2013 raising the issue of discrepancies regarding sign in sheets. The OM was forthright with the deputies, and provided an explanation which they accepted. The explanation was that, although the sign in and out sheets were not accurate in many instances, it was a way to compensate for overtime worked but not claimed as such, so that it all evened out. Essentially, the idea presented by the OM was that there was no personal gain involved, but rather a saving of overtime payments for the Ministry. Direction was given to the OM about signing in and out accurately, and claiming for overtime going forward.

15In the meantime, on January 25, 2013, at 5:00 p.m., not satisfied with the pace of the internal investigation, Mr. Ronkai had complained to the Deputy Minister, by email. In the email, Mr. Ronkai noted he had complained about his colleague’s time theft to Mr. Parisotto in October, and given him further evidence in November, but that his colleague was still at work. He reiterated his allegations that time sheets were being falsified, characterizing the behaviour as fraud and breach of trust, and stating, “We have inmates in our jails for less than this.” He closed the email with a paragraph stating that he felt he was being ostracized by Maplehurst’s leaders, that he had been told that the Superintendent was displeased with him because he had to deal with Mr. Ronkai’s complaint, and that he was afraid that “as a retaliation for coming forward and causing the Superintendent grief I will be let go from my job at some point.”

16Earlier that same day, January 25, 2013, Mr. Ronkai had been informed by Deputy Superintendent Todd Smith, that a complaint had been received concerning his use of an electric cart to escort an inmate through the institution. Mr. Smith communicated a direction from Mr. Parisotto that Mr. Ronkai was not to escort inmates while riding the cart unless he had a Correctional Officer with him as well. Mr. Ronkai saw this as discrimination on the basis of his disability and filed a complaint in that regard. Mr. Ronkai had a mobility issue, for which his previous superintendent had allowed him to use the electric cart, without a formal accommodation plan, or medical evidence. Mr. Ronkai also received an email from Deputy Smith on January 25, instructing him to provide a doctor’s note regarding any accommodation requirement.

17This was the second time in less than two months that the issue of the cart had been raised. On December 15, 2012, a Correctional Officer had objected to Mr. Ronkai’s escorting an inmate while riding an electric cart used by the maintenance department to transport tools and equipment for their work around the institution. The concern raised was that the inmate could commandeer the cart and injure staff with it. Mr. Ronkai responded the same day with a complaint that he was being discriminated on the basis of his disability. The documentation of the incident indicates that Mr. Ronkai had been advised after the first occasion to cease the practice of escorting inmates with the cart.

18As a result of the complaints about the use of maintenance carts, senior management reviewed the whole issue of the use of carts, and decided that it was better not to use maintenance carts as assistive devices. In her interview with the CISU, Ms. Gauthier said that, in consultation with other members of senior management and staff with expertise in attendance and employee relations issues, she determined that there were a number of issues about the use of the maintenance carts as assistive devices, including the speed and the fact that they are not seat belted. A memo dated February 6, 2013 was sent to Mr. Ronkai, and two others who had been using the carts, stating that they would no longer be permitted as assistive devices, but other accommodations would be provided upon presentation of appropriate medical information.

19After the January complaint about the maintenance cart, Deputy Superintendent Smith had directed Mr. Ronkai to present a doctor’s note about his accommodation needs. On February 9, 2013, Mr. Ronkai presented a note dated January 30, 2013, which said that he required the use of an electric cart. The employer decided it needed more information, being of the view that other accommodations might be possible, such as assigning Mr. Ronkai to a post that did not require much walking. A standard letter dated February 12, 2013 asking for more information from his doctor was prepared. The evidence is unclear on whether Mr. Ronkai ever received it, but other events overtook the accommodation issue, so not much turns on whether he did. Mr. Ronkai feels it was discriminatory not to allow the use of the cart on the basis of his first doctor’s note.

20Mr. Ronkai sees the restriction of the use of the cart as part of the reprisals for complaining to the Deputy Minister. He did not dispute that bargaining unit staff had complained about the use of the carts, and did not assert that management and the union were colluding in bringing up the issue. However, he did assert that management had seized on the complaint in order to punish him for having reported on the timekeeping issue to the Deputy Minister, when it could have acted otherwise.

21On February 12, Deputy Superintendents Gauthier and Marchegiano met with Mr. Ronkai to inform him that Mr. Ryan’s local investigation was not proceeding further because of the problems with the evidence collected since 2009. At this meeting, Mr. Ronkai let the Deputies know that he had already complained to the Deputy Minister and that a CISU investigation would be conducted into the allegations of time theft. The deputies informed Superintendent Parisotto of this shortly after.

22On February 13, Mr. Ronkai filed a report with the Superintendent indicating that he considered that he had been discriminated against on the basis of his disability. According to a summary of events prepared close to the time by Deputies Gauthier and Marchegiano, he also alleged that the administration was retaliating against him because he had taken his complaint to the Deputy Minister.

23Around the time of the meeting on February 12, Deputy Superintendent Gauthier received information from another OM that Mr. Ronkai was in possession of restricted keys without authorization. This was one of several queries she had received from OM’s who had observed Mr. Ronkai’s cart near the security office, when they knew he was no longer assigned as a security manager. Security Manager positions are coveted ones, and normally given to full-time OM’s. Deputy Gauthier had been asked on a number of occasions why Mr. Ronkai was in the security office, even though he was now a contract employee, and she did not have an answer.

24At this point in time, Deputy Gauthier was in charge of the institution, as the Superintendent was on vacation. In order to check whether the information that Mr. Ronkai was in possession of unauthorized keys had any validity, she asked a former security manager to run a report from the computerized key-watcher system, so she could see who had accessed restricted keys. As she was not familiar with these reports, she had it interpreted for her by Rick Markell, Deputy Superintendent of Operations, who advised that keys had been drawn by Mr. Ronkai to the offices of the Deputy Superintendent of Operations, an office reserved to the Peel Regional police, the administrative area and the key vault. These are keys that are to be accessed only by security managers or senior administrators. Deputy Gauthier was particularly concerned about access to the key vault, through which one can access every key in the jail.

25As the Superintendent was away, Deputy Gauthier consulted the Regional Director, Mike Conry on February 15, who directed her to immediately suspend Mr. Ronkai with pay, pending investigation. As Mr. Ronkai was not due to work until February 22, it was decided to wait until then. Mr. Ronkai was asked to write a report about his key access, and then was suspended by the Superintendent who had returned by then. By this time, the Deputy Minister had arranged to have the CISU investigate Mr. Ronkai’s allegations, and Mr. Ronkai had been interviewed by the CISU two days before his suspension and connected the two events. However, there is no evidence that Maplehurst management or Mr. Conry knew that Mr. Ronkai had been interviewed by the CISU when the decision to suspend was made and implemented.

26Ms. Gauthier testified without contradiction that the decision to suspend Mr. Ronkai was made on the phone by Mike Conry because of the issue with the keys; he wanted Mr. Ronkai removed from the situation, so a proper investigation could be done. She said that neither the issues about the investigation into time theft, nor the issue about accommodation was any part of the discussion. She denied that reprisal against Mr. Ronkai was involved.

27In cross-examination, Mr. Ronkai asked Ms. Gauthier when the information about his cart being outside security came to her attention, and she was not sure. Moreover, she had not received written reports of the dates or circumstances of the incidents reported to her. In his closing remarks, Mr. Ronkai asserted that the lack of writing or specifics was confirmation of the Code of Silence, which directs that staff do not tell the superintendent anything. He further submitted that if Deputy Gauthier had gotten specifics in writing from the individuals involved she would never have received information from them again.

28The CISU conducted an investigation into Mr. Ronkai’s allegations concerning his colleague’s timekeeping, as well as his allegations of reprisal by management for his report to the Deputy Minister. A separate report was prepared on each, substantiating most of the allegations made by Mr. Ronkai against his colleague, and exonerating Mr. Ronkai of the allegations of improper access to restricted keys and locations at Maplehurst. The CISU did not make a conclusion one way or the other as to reprisal, because that jurisdiction lies with the Ethics Executive.

29After Mr. Ronkai was exonerated by the CISU investigation, Assistant Deputy Minister of Institutional Services, Stephen Small asked Mr. Calverley, then Deputy Regional Director, to contact Mr. Ronkai to offer him return to work options. He offered work in two institutions other than Maplehurst. Mr. Ronkai declined both on the basis of his belief that news of his having turned in a colleague would follow him and, because of the Code of Silence, he would never be safe in any institutional setting. Therefore, he requested an assignment outside of a correctional institution, or in another Ministry.

30The termination of Mr. Ronkai’s contract followed by letter dated November 4, 2013, saying that because Mr. Ronkai had declined the offers, the ministry had decided not to renew his fixed term contract. The letter, signed by Mr. Calverley, also noted that he and Mr. Ronkai had discussed that the Ministry would have been prepared to take appropriate steps regarding his safety, should he return to active employment.

31On November 20, 2013, Mr. Ronkai wrote the Deputy Minister complaining that the termination of his contract constituted a further reprisal for reporting his colleague’s fraud and its cover-up by management.

The Legal Context, Issues and Conclusions

32Relevant provisions of the Public Service of Ontario Act (PSOA) and case law referred to in argument are attached as Appendices for ease of reference.

33The case law on reprisal is consistent to the effect that the burden of proof is on the employer to show that the reasons given for the contested actions were the true reasons, and were not intended to punish or “get back at” the complainant for the protected activity. In this case, the protected activity is reporting wrongdoing to the Ethics Executive. In several of the cases cited, the protected activity was seeking the protection of the Occupational Health and Safety Act, or exercising rights under other statutes, such as the Labour Relations Act, and the Environmental Protection Act. The case law acknowledges that reprisals are rarely practiced in the open, and that valid reasons may exist at the same time, and be used as a cover or pretext for illegal ones. Inferences from all of the evidence may be drawn, where necessary. If an explanation from the employer is unreasonable, unfair, or out of line with a rational response in the circumstances, concern about whether the action complained of is a reprisal will be increased.

34Nonetheless, the issue is not whether there was “just cause” for the action taken, or whether the complainant agreed with the choices made by the employer. The burden of proof remains that of the balance of probabilities, rather than the criminal standard of “beyond a reasonable doubt”. Mere possibility of an intent to punish a complainant for engaging in protected activity is not enough to base a finding that there has been reprisal. See the following cases filed by the employer, which I find representative of the state of the law on the subject of reprisals in various employment contexts: York (Municipality), [2002] OLRB Rep. May/June 481 (June 10, 2002) (Herlich); Grifferty and The Crown in Right of Ontario (Ministry of Government Services), GSB No. P-2010-2240 (October 16, 2012) (Devins); Lyndhurst Hospital, [1997] OLRB Rep. July/August 616 (August 15, 1997) (O'Neil); Hy's Steak House, [1990] OLRB Rep. February 163 (February 20, 1990) (Gray); Sobey's Inc., [1996] O.L.R.D. No. 3565 (October 7, 1996) (Whitaker); Noble v. York University, 2010 HRTO 878, (April 22, 2010) (Gottheil); Jones v. Amway of Canada, [2002] O.J. No. 1504, 159 O.A.C. 331 (Ont. S.C.J.).

35When Mr. Ronkai filed these complaints, he was a fixed-term on-call employee. As such, he was not eligible to bring a complaint to this Board concerning his terms and conditions of employment, including any issues as to whether the termination of contract was for just cause. This is a result of the provision of s. 5(2) of Regulation 378/07 under PSOA, which puts limits on the Board’s jurisdiction, in terms of who may and may not bring certain kinds of complaints. However, s. 5(3) of the same regulation permits him to file a complaint of reprisal for the reporting of wrongdoing under s. 140 of the PSOA, often referred to as the “whistleblower” protections. Thus, the main focus of the decision is whether or not Mr. Ronkai’s suspension and non-renewal of his contract were reprisals for reporting of wrongdoing.

36In order to establish a successful case for a reprisal for disclosure of wrongdoing in an application under s. 140 of the PSOA, such as this one, there must be a report of wrongdoing, made in accordance with Part VI of the Act, meaning to the Deputy Minister, Mr. Ronkai’s Ethics Executive, or the Integrity Commissioner, and then subsequent negative consequences because of that reporting, i.e. motivated by the reporting rather than by bona fide managerial reasons.

37It is clear that Mr. Ronkai experienced negative employment consequences that meet the definition of reprisal under s. 139(2) of PSOA, as he was suspended, albeit with pay, and his employment was later ended. It is not in dispute that, since the Deputy Minister was his Ethics Executive, in reporting to him, Mr. Ronkai was in compliance with the statute in the route that he took. The central issue in this case is whether management’s actions were taken because he reported wrongdoing. Mr. Ronkai finds it obvious that his reporting of wrongdoing was the motivation for the employer’s actions. The employer entirely denies any improper motivation, and the employer witnesses testified that they were motivated by concerns other than Mr. Ronkai’s report to the Deputy Minister in acting as they did.

38The employer defense is two-fold. Firstly, in the employer’s view, what Mr. Ronkai reported to the Deputy Minister was not the grave kind of wrong-doing which falls within the very specific definition of that term in s. 108 (1) of the PSOA. Secondly, the motivation for the management decisions in question were appropriate in all the circumstances.

39Before dealing with those defenses, it is appropriate to note that Mr. Ronkai’s first complaint, as filed, complained that those responsible for the reprisals were Mr. Mark Parisotto, the Superintendent at Maplehurst, and his deputies, Janet Gauthier and Todd Smith. In his second complaint, he named Mr. Calverley who authored the letter terminating his contract. During the hearing, Mr. Ronkai alleged that Deputy Minister Stephen Rhodes was also involved in a reprisal by his inaction in not correcting the suspension or termination and letting them stand. Since there were no allegations against Mr. Rhodes in the complaints, and no suggestion that he was involved in the decisions to suspend or terminate Mr. Ronkai, the Board found that it was not likely that he would have any evidence relevant to the complaint as filed, and declined to issue the subpoena for him which Mr. Ronkai had requested.

40Mr. Ronkai did not name Mr. Conry in the complaint, but the evidence is clear that he was involved in the decision to suspend. Mr. Conry has since retired, and did not testify, but a transcript of an interview of him by the CISU was part of the record, and I have considered it as part of my decision making.

41Returning to the necessary elements for a successful complaint, I have considered whether what Mr. Ronkai reported to the Deputy Minister qualifies as wrongdoing, as defined in s. 108(1) of the PSOA. The kinds of wrongdoing by public servants listed in section 108 of PSOA are divided into four general categories:

(a) breach of a federal or provincial statute or regulation;

(b) an act or omission that creates a grave and unreasonable danger;

(c) gross mismanagement;

(d) directing or counselling such wrongdoing.

42The employer argues that performance issues of the sort reported are not at the level of gravity intended to be captured by the legislation. In the employer’s view, timekeeping issues should not be considered at the same level as the categories specifically mentioned in the statute as wrongdoing, such as gross mismanagement or something creating a grave danger. Although there is merit to the idea that performance issues correctable by progressive discipline are not likely what the Legislature had in mind in s. 108 (1), it is clear that Mr. Ronkai characterized the conduct he reported as criminal fraud. This characterization falls into the first branch of the definition in 108(1) (a), as a breach of an Act of the Parliament of Canada, i.e. the Criminal Code of Canada. In the circumstances of this case, which include that there was no suggestion that Mr. Ronkai was insincere in his belief that his colleague’s behaviour was criminal, this decision proceeds on the basis that his report to the Deputy Minister qualifies as a report of wrongdoing within the meaning of s. 108 of the PSOA.

43This leaves the question of motivation, i.e., on all the evidence, is it more likely than not that the managerial decisions in question, the withdrawal of Mr. Ronkai’s use of an electric maintenance cart, the suspension pending investigation and the termination of his contract, were motivated by the fact that, prior to these events, he had forwarded his complaint about time theft and inaction by senior management to the Deputy Minister?

44As employer counsel conceded, the timing of the events is a factor that could support such a notion. In reviewing the evidence about timing, I have looked at each of the negative consequences complained of in turn, starting with the removal of the cart Mr. Ronkai was using as a mobility device. Timing is the weakest for this aspect of the complaint as the issue had been raised by the union in December, 2012, before Mr. Ronkai had reported his concerns to the Deputy Minister and in a period when the parties were in collective bargaining, not infrequently a circumstance associated with increased union activity around health and safety. Although the matter was raised again early on January 25, 2013, the same day as Mr. Ronkai reported his allegations of wrongdoing to the Deputy Minister, there is no evidence that Mr. Smith or Parisotto knew at that time that Mr. Ronkai was going to report anything to the Deputy Minister.

45As well, I do not find the fact that the Maplehurst administration was trying to regularize the accommodation process for Mr. Ronkai, as well as others, to be suggestive of a reprisal. Mr. Ronkai had not previously been required to follow the standard process of presenting medical evidence so that a formal accommodation plan could be prepared. Nonetheless, given the complaints about the carts, and the fact that, given the size of Maplehurst, several people wanted to use them, it does not seem unreasonable or suggestive of a reprisal that management was trying to deal with the whole issue on a standard basis. The employer never suggested that Mr. Ronkai’s disability would not be accommodated.

46The memo informing Mr. Ronkai that he was not to use the cart any longer as a mobility device was dated February 6, 2013, but there is no evidence that either Mr. Parisotto or any of his deputies knew Mr. Ronkai had gone to the Deputy Minister before February 12, when Mr. Ronkai informed Deputies Gauthier and Marchegiano that he had done so. Therefore, for this aspect of the complaint, I find no basis, even in timing, to find that there was a reprisal involved.

47For the suspension, the timing link is the strongest, as the decision to suspend was made a few days after Mr. Ronkai’s disclosure to the deputies that he had gone to the Deputy Minister. Further, Mr. Ronkai highlights two aspects of the investigations preceding his suspension as indicative of management’s improper motivation. First, the investigation done by Mr. Ryan was incomplete when management decided to end Mr. Ryan’s work on the file and counsel the OM rather than suspend pending further investigation or impose more severe discipline. Secondly, there was limited inquiry into the allegations against Mr. Ronkai before management suspended him pending investigation, and he was not interviewed in detail until after he was suspended. In Mr. Ronkai’s view, these flawed investigations are transparent covers for the protection of Mr. Ronkai’s colleague, followed by reprisals against himself for reporting his colleague and then the Superintendent.

48One of Mr. Ronkai’s concerns is the fact that, as part of the initial fact-finding into Mr. Ronkai’s timekeeping allegations, Mr. Ryan was assigned to interview Messrs. Ronkai and McDonald but not the OM against whom the allegations were made. This was a frustration to Mr. Ryan, a very experienced investigator, who is committed to thorough investigations, and suggestive of a cover-up to Mr. Ronkai. Nonetheless, Mr. Ryan’s straightforward evidence acknowledged that each investigation is different and indicated that, as an employee of the institution, as opposed to the external CISU investigators, he might have been seen as too close to the senior administrators to continue the investigation. In any event, the decisions about the initial fact-finding were made before the Maplehurst administration knew that Mr. Ronkai had complained to the Deputy Minister.

49Further, Mr. Parisotto testified that a CISU investigation was a possibility at the outset of his consideration of the matter in October 2013, so that he made an effort not to compromise an eventual wider investigation if that was the route they chose after the initial fact-finding. This was, for instance, his rationale for not contacting the former superintendents to discuss whether they had authorized Mr. Ronkai’s investigation of his colleague, and for keeping the fact-finding confidential from the OM whose conduct was in issue. The CISU report was critical of this restrained approach and concluded that Maplehurst management had not done due diligence before suspending Mr. Ronkai.

50Nonetheless, Mr. Parisotto and Ms. Gauthier testified credibly that it was their conclusion after consultation about the problems with the evidence collected by Mr. Ronkai and the length of time the time- keeping practices had been going on, that the best course was for the deputies to speak to the OM themselves. Once they did that, the OM in question admitted to much of what was alleged, but explained it in a way that the institution’s administrators found credible. According to the transcript of Ms. Gauthier’s interview with the CISU, the OM corrected the problematic behaviour after the counselling.

51It is of note as well that there was a substantial amount of evidence indicating that there was an institutional culture at Maplehurst involving many instances of lack of precision in signing in and out. The CISU report concluded, for instance, that there was “a wide-spread practice amongst staff leaving prior to the end of their scheduled shifts.” I take this as a significant back-drop for the fact that more severe action was not taken against the OM, since, as employer counsel noted, this might well have been an issue if the OM had been disciplined, and had complained that there was inequality of discipline. Further, there were several indications in the evidence that Mr. Conry did not view behaviour such as a manager working extra hours one day, and leaving early the next, rather than claiming overtime, as tantamount to time theft.

52Both the oral evidence and transcripts of the interviews demonstrate that there was a wide spectrum of opinion on how to characterize the timekeeping behaviour that Mr. Ronkai adamantly insists was criminal fraud, the CISU characterized as breach of policy by falsification of time sheets, and others saw as acceptable give and take for trusted managers. As Mr. Bandhu, Manager, CISU, put it during his interview with Mr. Ryan, there was a question of whether the behaviour was culpable, as in intentional time theft, as opposed to non-culpable, which would include participation in the institutional practice of signing in and out in a particular way.

53I emphasize here that the issue of how culpable the OM’s behaviour was is not for this Board to decide in the context of this complaint, as it would be if this were a complaint by that OM of discipline without just cause. However, the spectrum of opinion is an important element in the resolution of this case, which revolves around the credibility of management’s rationale for the decisions it made which negatively affected Mr. Ronkai, which he sees as a continuation of their improper protection of his colleague. The evidence indicates that Mr. Ronkai had a fixed view of the matter dating back to 2009, which was not the same as those in charge of managing the situation. For him, his view is obviously correct, and anyone seeing it differently is perhaps involved in, or being taken in by, managerial cover-up and/or the Code of Silence. He sees management’s choices as pretexts for a reprisal against him for complaining about someone they were intent on protecting, failing to accommodate his disability, then finding reasons to suspend him, when there were no valid ones, and then “not taking care of him” when he was exonerated.

54It was Deputy Gauthier whose actions were the impetus for Regional Director Conry’s direction to suspend. Does the evidence support a finding that in asking for the key watcher reports, and then reporting the results to the Regional Director, Deputy Gauthier was reacting to the fact that Mr. Ronkai had reported to the Deputy Minister? The timing makes it possible, and the sequence of the receipt of the allegations of improper key use were not well-detailed in the evidence. Nonetheless, having considered all the circumstances, I do not find it likely that Deputy Gauthier was motivated by the report to the Deputy Minister. Rather, I find that the evidence establishes that there was a bona fide exercise of managerial discretion in following up on the information received and consulting the Regional Director, the result of which was the direction to suspend Mr. Ronkai with pay, pending investigation.

55Deputy Gauthier had been part of the issues surrounding Mr. Ronkai’s allegations of time theft, and the allegations about his use of the electric cart, long before the report to the Deputy Minister. She knew that Mr. Ronkai had been highly critical of three successive superintendents for not acting on information in respect of alleged unauthorized activity by the OM he accused. At the time she received the information suggesting unauthorized access to keys, Deputy Gauthier was acting as Superintendent. In participating in the consultations around the issue of time theft, Deputy Gauthier had become quite concerned about Mr. Ronkai’s surveillance of his colleague, which at the time she did not know had been authorized at all. When she put this together with the information suggesting that Mr. Ronkai had been accessing keys and restricted areas without authorization, her concern was heightened. She took the time to check the information she had received by asking for the key-watcher report, and having it interpreted for her by an ex-security manager who was much more familiar with reading them. The information appeared to support the idea that Mr. Ronkai had accessed sensitive areas to which he should not have had access.

56Deputy Gauthier’s credible evidence was that there was nothing mysterious about her decision to act on the information. She acknowledged that Mr. Ronkai could have been completely innocent, but said the process was basically that she received information that he had been in places that he should not have been. She consulted the Regional Director in the absence of the Superintendent, who gave a straightforward direction to suspend with pay, so they could find out the truth of the situation. Deputy Gauthier had cautioned Mr. Conry that Mr. Ronkai would likely allege that the suspension was retaliatory, to which he responded that he would take responsibility for the decision.

57Deputy Gauthier did have the disadvantage of not knowing that Superintendent O’Connell had authorized Mr. Ronkai’s collection of evidence before his retirement, and that Superintendent Parisotto had authorized collection of evidence by Mr. Ronkai about his timekeeping allegations, even after Mr. Ryan had been appointed to do a fact-finding. As well, she was perhaps most affected by the idea that what she genuinely believed to have been unauthorized surveillance of a colleague for a number of years could be seen as personal harassment under the Bill 168 amendments to the Occupational Health and Safety Act. I am persuaded that, when confronted by the evidence of the key watcher report, that she truly believed there was potential for a very serious issue with Mr. Ronkai’s behaviour. The common thread that emerged from her evidence was that Mr. Ronkai was engaged in unauthorized “looking around”.

58The fact that Deputy Gauthier was not inclined to think that the charges were obviously groundless, as Mr. Ronkai thought she should have, was also coloured by her work history with Mr. Ronkai. She had supervised Mr. Ronkai in another institution earlier in their careers, and although she described their work relationship as generally good, she did not approve of some of his methods in dealing with inmates in the treatment setting where they worked together. There is no issue in this hearing about those incidents, and it is important to be clear that I make no finding about them. The background is clarifying, nonetheless, because it tends to support the credibility of Deputy Gauthier’s testimony that she thought the information she had received indicated potentially serious problematic behaviour. Her evidence persuades me that she was genuinely concerned that Mr. Ronkai might have been taking what she thought was unauthorized investigation of his peer even further, to the extent of accessing the Deputy Superintendents’ offices and information that could be found there. Although Mr. Ronkai is of the view that it should have been obvious that he was not doing anything wrong, the evidence persuades me that Deputy Gauthier genuinely saw it differently. Neither cross-examination or the rest of the evidence gave sufficient reason to disbelieve her evidence.

59There were other choices of course, that could have been made. When allegations are made to an administrator, a decision has to be made as to what action to take. Deputy Gauthier could have done nothing, or engaged in further investigation before consulting Mr. Conry. However, I do not find her choice to consult, or Mr. Conry’s direction, unreasonable in the circumstances, or indicative of a reprisal. It is clear from the evidence that there are many issues, including allegations by or against inmates or staff, at any given time in a large correctional institution like Maplehurst, and that sometimes the clearest path to an effective investigation is to remove the person concerned from the situation, to prevent further allegations or issues from complicating the situation. Although Mr. Ronkai was affronted by the idea that the allegations against him would not be seen as obviously unfounded, I find senior management’s decision to act in a way that made sure a proper investigation could be done a rational one in the circumstances.

60Mr. Parisotto signed the letter suspending Mr. Ronkai, and in his submissions, Mr. Ronkai focused on his role in the suspension. Moreover, the CISU investigation report was critical of Mr. Parisotto for not doing more due diligence before suspending Mr. Ronkai. However, other evidence indicates that the CISU investigator was not aware that Mr. Parisotto had not been at work at the time of the consultation that lead to Mr. Conry’s decision to suspend. The evidence is that, in suspending Mr. Ronkai, he was acting in accord with the direction given to Deputy Gauthier by Mr. Conry, who had the authority to give direction to both of them.

61It seems likely that Mr. Ronkai’s activities and complaints about his colleague brought more attention to his own actions during the time period in question as management considered matters after Mr. Ryan’s fact-finding. Nonetheless, I find the evidence of Deputy Gauthier and Superintendent Parisotto a credible factual basis for the finding that it is likely that the motivation for his paid suspension pending investigation was to contain a potentially serious issue so that an investigation could be done, rather than being related to the fact that Mr. Ronkai had referred the matter of his longstanding allegations against his colleague to the Deputy Minister.

62More specifically, I find that the evidence does not support Mr. Ronkai’s claim that senior management knew that the allegations about improper access to keys and restricted areas were without foundation from the start. The evidence did not deal with whether the people who gave the information to Deputy Gauthier believed the allegations to be true, but there is no evidence on which I could make a finding that any of Deputy Gauthier, Superintendent Parisotto or Regional Director Conry knew they were without culpable substance at the time of the suspension. It is true that the CISU investigation found that Mr. Ronkai had innocent reasons for being in the security office and accessing restricted keys from time to time to help out other managers at their request. As well, through an oversight, the access code that he had had as a Security Manager had not been removed when he returned as a casual employee. Moreover, there was a method, known to several of the witnesses including Mr. Ronkai, for managers to access keys without leaving their personal code, which Mr. Ronkai could have used if he had been doing anything covert. Nonetheless, the evidence did not establish that these facts were known to Deputy Gauthier when she consulted Mr. Conry on February 15, and was directed to suspend him.

63As well, evidence of other witnesses, including Mr. Parisotto, and Mr. Ronkai’s own witness, Bob Ryan, was that even though the access code had not been removed, someone with Mr. Ronkai’s background should have known not to use it when not assigned as a Security Manager. Mr. Ryan also testified that it was a judgment call whether to suspend a person before interviewing them about an allegation or not. Moreover, the information received was that the access to sensitive areas was on evenings and weekends, which would have been a concern even if Mr. Ronkai had still been a Security Manager in Mr. Parisotto’s view. He indicated that, even if Mr. Ronkai had been assigned as Security Manager, if he needed something from the Deputies’ offices, he should be calling the on-call Deputy, rather than accessing the area without specific authorization.

64Nor do I find any basis in the evidence to find that Mr. Conry’s motivation in giving the direction to suspend was to punish Mr. Ronkai for reporting to the Deputy Minister, something Mr. Ronkai did not allege in his complaint in any event. However, during the hearing he asserted that Mr. Conry and a previous superintendent were friends of the father of the OM accused of time theft. Mr. Ronkai asserts that this friendship is also evidence of the fact that management’s motivation was a reprisal for reporting time theft and its cover-up. Given the other credible evidence of bona fide reasons for the decisions in question, I do not find the friendship between Mr. Conry and the OM’s father to be a sufficient basis to find that the decision to suspend was in response to Mr. Ronkai’s reporting his allegations to the Deputy Minister. Moreover, Mr. Conry told the CISU investigators that he had fired another member of the same family, and had not talked to the father in years. There was no evidence before me to contradict this part of the record, which further tends to minimize the likelihood that the friendship played the role Mr. Ronkai suspects.

65As well, I note that there was the idea in the transcript of the CISU’s investigation, and Mr. Ronkai’s remarks, that there was something suspicious about the fact that more preliminary investigation had been done about the time-keeping issue than about Mr. Ronkai’s access to unauthorized areas. It appears to me that, in a correctional institution, access to keys is so fundamental to the security of everyone who works and is detained there, that it is not unreasonable that the latter was thought to warrant a more immediate response than time-keeping accusations that had been outstanding for years.

66Mr. Ronkai is also critical of the CISU investigation into his complaint to the Deputy Minister that the suspension pending investigation was itself a reprisal, because no finding was made in that investigation on the question of reprisal. Lisa Kitchen, CISU investigator, and her superior, Sandeep Bandhu, Manager CISU, testified about that aspect of the investigation. To Mr. Ronkai’s questions as to whether she had ever been told not to make certain findings in any other investigation, Ms. Kitchen testified that this was a unique investigation because it came from the Deputy Minister’s office. As well, the uncontradicted testimony of her manager, Mr. Bandhu, was that the CISU makes findings of fact, and does not make findings of reprisal because the PSOA gives that authority to the Ethics Executive. Mr. Ronkai seemed to believe that the CISU investigation had somehow been interfered with improperly in this respect, but there is simply no evidence to support that idea.

67Turning then to the termination of Mr. Ronkai’s contract, the main evidence that could support the finding of a reprisal is that it occurred after he had reported the alleged wrongdoing to the Deputy Minister. This timing is not as strong a relationship as for the suspension, since it happened about 9 months later.

68Mr. Calverley testified credibly that he offered Mr. Ronkai two opportunities to return to work at the request of senior management. Mr. Ronkai presented no evidence on which I could base a finding that these were not real offers. They were declined because Mr. Ronkai feared that he would not be safe because of his complaints about his peer, in that he believes the Code of Silence would operate to punish him. Mr. Calverley had not seen the Code operate as Mr. Ronkai feared it would among managers. Rather, he found that even where there were hard feelings between managers, they managed to find a way to work together professionally. However, when Mr. Ronkai stated that he could not give an assurance one way or the other as to whether the issue would follow him to an institution other than Maplehurst, Mr. Calverley agreed that he could not give assurances in that respect. Nonetheless, he said if problems had arisen, management would have seen what could be done about it, as with anyone else. There was no suggestion in Mr. Ronkai’s cross-examination of Mr. Calverley of any reason why he would have been motivated to terminate his contract as a reprisal for having reported to the Deputy Minister. Nor was there any other evidence before me which warrants the inference that Mr. Calverley had any improper motivation.

69Mr. Ronkai was on paid suspension between February 22 and the end of October 2013, while the CISU investigations were conducted, and the Ministry considered its reports. The evidence is clear that he would have been assigned work again if he had accepted the assignments offered by Mr. Calverley. Thus, the employer sees the termination as the result of a decision on Mr. Ronkai’s part to decline their genuine offers. Mr. Ronkai requested work outside of a correctional institution, but there is no evidence that there was such work available for an on-call contract employee or that Mr. Ronkai made any specific proposal of available work he would be prepared to accept.

70Nor did he advance any legal principle or precedent that would create an obligation on the employer to offer him work outside of a correctional institution or in another Ministry.

71Fundamental to Mr. Ronkai’s claim is his belief that he could not have gone back to work safely in any correctional institution in the province. It is Mr. Ronkai’s view that the whole sequence of events described above must be understood as an example of the operation of the Code of Silence, from the inaction of management in response to his complaints before his retirement, through to the termination of his contract. Mr. Ronkai sees the existence of the Code of Silence as proof that what happened to him was a reprisal for “ratting out” his colleague and his Superintendent for what he sees as a cover-up because no action beyond verbal counselling was taken against the OM in question. He refers to the findings of the Ombudsman in his 2013 report that some managers were affected by the Code of Silence, and relies on the experience of his colleagues at Maplehurst as proof that the Code exists in the ranks of management as well as unionized staff.

72The credible evidence of Mr. Ronkai’s colleagues, Messrs. Boorsma and McDonald, was that they were both subject to negative treatment from some co-workers, including some managers, after it became known in the institution that they had been associated with Mr. Ronkai and his complaints against their peer. The behaviour reported by one or both of them included being shunned, given the “silent treatment”, not being spoken to or acknowledged on entering a room as they had been in the past, having phone calls from them answered with silence, or not answered at all, being given the “evil eye” and having car tires flattened. They both attributed this to the operation of the Code of Silence whereby anyone who gives evidence against another staff member is made to pay for it. They heard the OM accused of time theft saying he would go after anyone who was behind the allegations of time theft, and Mr. Boorsma was sure the OM in question was behind the negative treatment he received.

73Both Messrs. McDonald and Boorsma attribute their retirements, earlier than they had intended, to the stress caused by their peers and what they see as management’s inadequate response, in the context of the fear that other staff would not come to their aid if they were in a dangerous situation at work. They both believe that the Code affects managers and unionized staff alike. Nonetheless, they also acknowledged that not all managers or staff treated them badly. In cross-examination of Mr. Ronkai’s witnesses, employer counsel succeeded in establishing that the negative behaviour was not as widespread as Mr. Ronkai suggested. As well, they each remained assigned to the institution where the events had unfolded, where it seems likely that feelings about the events in question would have been the strongest. Further, other factors, personal to each of them, were involved in their retirements. Mr. McDonald retired in late November 2014 and Mr. Boorsma in early April 2016, both a considerable period after they had become associated with the allegations of time theft in early 2013. Moreover, there was no suggestion that any of the negative behaviour towards Messrs. Boorsma and McDonald was connected to the administrators who made the decisions to suspend Mr. Ronkai and later terminate his contract.

74Managerial witnesses such as Messrs. Parisotto and Calverley did not share the view that the Code of Silence operates among the managerial ranks in the way Mr. Ronkai and his colleagues believe. In the end it is not necessary to make a general finding about managers and the Code of Silence as Mr. Ronkai invited the Board to do. It is enough for the purposes of this case to deal with the allegation that the negative things that happened to Mr. Ronkai were related to the Code of Silence and his managers’ participation in it by reprising against him for going to the Deputy Minister with his concerns. Even accepting that Mr. Ronkai’s colleagues retired earlier than they would have, but for the behaviour of their colleagues related to Mr. Ronkai’s allegations of time theft, the evidence does not justify the inference that the managers who made the decisions affecting Mr. Ronkai were punishing him for “breaking the Code” in general, or specifically because he reported his allegations to his Ethics Executive, the Deputy Minister. Without such a causal connection, these complaints cannot succeed.

75The above deals with the issues necessary to this decision. However, it is appropriate to comment on Mr. Ronkai’s claim to work outside a correctional institution. He made clear he was not willing to go back to work in an institution, the work he had been contracted to do after his retirement, when management offered a return to work after the CISU investigations. Mr. Calverley’s assurances that any problems which arose would be addressed, were not shown to be insincere, or a pretext for setting Mr. Ronkai up for retaliation from staff. Mr. Ronkai did not take the offered work, so there is no direct evidence that his fears would have materialized in another institution, or that any problems that arose would have been insoluble. His position in this case amounts to a request that an inference be made from all of the evidence about the Code of Silence, and the experience of Messrs. McDonald and Boorsma at Maplehurst, that he would not have been safe in any institution in the province, no matter what arrangements were made. To make the finding Mr. Ronkai requests would require being persuaded that the Code of Silence is so pervasive, among unionized staff and managers, that no one who gives evidence against other staff could ever safely work in a correctional institution again. The evidence does not persuade me of such a far-reaching proposition.

76In any event, as noted above, the evidence does not convince me that Mr. Ronkai was the victim of a reprisal by his managers for making allegations of wrongdoing to his Ethics Executive, the Deputy Minister. Without such a finding, there is no basis on which I could award any remedy to Mr. Ronkai.

77To summarize, having reviewed all the evidence, I have not come to share Mr. Ronkai’s view that management’s decisions in this matter were a reprisal against him. I am persuaded that it is not likely that reporting to the Deputy Minister motivated the choices of Maplehurst management or their superiors. There were many factors affecting the situation, which lead me to conclude that management had bona fide concerns that motivated their decisions. One can criticize any of the decision makers for not taking a different approach, with hindsight and all the information that is now available, including what portions of Mr. Ronkai’s initial investigative efforts were taken on his own initiative, and which were specifically authorized. But it is important to remember that the issue is not whether management could have handled the situation in a way that was less disruptive to Mr. Ronkai, or been more assertive about disciplining his colleague, or investigated the various issues that arose in a way that Mr. Ronkai found less flawed. Nor is the issue whether there was just cause for removing the maintenance cart as a mobility aid, suspending Mr. Ronkai or terminating his contract. Nor is it, “How should such an issue be handled next time?” The legislation sets the issue here, and, to repeat, it is whether or not the decisions were made because of Mr. Ronkai’s reporting of alleged wrongdoing to the Deputy Minister.

78The employer provided credible explanations for each of the aspects of the situation that Mr. Ronkai sees as suspicious anomalies. As to the role and existence of the Code of Silence, it is an important background to how things unfolded, particularly in terms of Mr. Ronkai’s view of events. Nonetheless, it does not explain everything. In particular, it does not detract from the coherence of the employer’s witnesses, and their credible explanations of how they came to the decisions they made in carrying out their responsibility to manage a large correctional institution, on the information they had at the time.

79In the end, without a finding of causation between the negative job consequences and the report of alleged wrongdoing to the Deputy Minister, there is no legal basis on which I could award any remedy to Mr. Ronkai.

80For the above-noted reasons, the complaints are dismissed.

Dated at Toronto this 4th day of October, 2017.

APPENDIX A

Excerpt from Regulation 378/07 under The Public Service of Ontario Act

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) if the public servant is eligible under sections 5 and 7 to file such a complaint;

(b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) if the public servant complies with the filing requirements set out in section 10.

5. (1) Subject to subsections (2) and (3), a public servant or other person is eligible to file a complaint if he or she was appointed by the Public Service Commission under subsection 32 (1) or (2) of the Act to employment by the Crown.

(2) If any of the following circumstances existed at the material time, a public servant or other person is not eligible to file a complaint:

1. He or she was a member of a bargaining unit represented by a bargaining agent under the Crown Employees Collective Bargaining Act, 1993 or under the Ontario Provincial Police Collective Bargaining Act, 2006.

2. He or she was represented by the Ontario Crown Attorneys’ Association or the Association of Law Officers of the Crown under an agreement between the Crown and one or both of those Associations.

3. He or she was employed in a position that was classified under subsection 33 (1) of the Act as a term classified position.

4. He or she was employed for a fixed term,

i. on a non-recurring project,

ii. in a professional or other special capacity, or

iii. on a temporary work assignment arranged by the Public Service Commission in accordance with a program for providing temporary help.

5. He or she was employed for a fixed term for fewer than 14 hours per week, employed for a fixed term for fewer than nine full days in four consecutive weeks or employed for a fixed term on an irregular or on-call basis.

(3) Subsections (1) and (2) do not affect the right of a public servant or other person to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing).

Excerpts from The Public Service of Ontario Act:

Ethics executive for public servants

62. (1) The ethics executive for a public servant is determined as follows:

63. The ethics executive for a public servant employed under Part III who works in a ministry, other than in a minister’s office, is the deputy minister.

PART VI

DISCLOSING AND INVESTIGATING WRONGDOING

Interpretation

108. (1) In this Part,

“wrongdoing” means,

(a) a contravention by a public servant, a minister or parliamentary assistant of an Act of the Assembly or of the Parliament of Canada, or of a regulation made under such an Act,

(b) an act or omission of a public servant, a minister or parliamentary assistant that creates a grave danger to the life, health or safety of persons or to the environment, where the danger is unreasonable having regard to his or her duties, powers and functions and any other relevant circumstance,

(c) gross mismanagement by a public servant, a minister or parliamentary assistant in the work of the public service of Ontario,

(d) directing or counselling wrongdoing within the meaning of clauses (a) to (c) by a public servant, a minister or parliamentary assistant. 2006, c. 35, Sched. A, s. 108 (1).

Disclosure, procedures

114. Where a public servant or former public servant has reason to believe that there has been wrongdoing, he or she may disclose the wrongdoing in accordance with the procedures established under section 115. 2006, c. 35, Sched. A, s. 114.

Directives, Public Service Commission

115. (1) The Public Service Commission may by directive establish procedures to deal with disclosures of wrongdoing by,

(a) a public servant who works in a ministry; and

(b) a former public servant who worked in a ministry immediately before ceasing to be a public servant. 2006, c. 35, Sched. A, s. 115 (1).

(3) Without limiting the generality of subsections (1) and (2), directives issued under those subsections may,

(a) establish procedures by which a public servant or former public servant may make disclosures of wrongdoing, including directions as to the persons to whom disclosures may be made;

(b) establish procedures to protect the identities of persons involved in the disclosure process, including persons who make disclosures, witnesses and persons alleged to be responsible for wrongdoing; and

(c) provide for exceptions to be made to procedures described in clause (b) where the interests of fairness require that a person’s identity be disclosed to one or more persons. 2006, c. 35, Sched. A, s. 115 (3).

Same

(4) Directives issued under this section may be general or particular in their application. 2006, c. 35, Sched. A, s. 115 (4).

Interpretation

Protection from Reprisals

No reprisals

139. (1) No person shall take a reprisal against a public servant because he or she has,

(a) sought advice about making a disclosure about wrongdoing in accordance with this Part;

(b) made a disclosure about wrongdoing in accordance with this Part;

(c) co-operated in an investigation or other process related to a disclosure of wrongdoing made in accordance with this Part;

(d) acted in compliance with this Part; or

(e) sought enforcement of this Part. 2006, c. 35, Sched. A, s. 139 (1).

Same

(2) For the purposes of subsection (1), a reprisal is any measure taken against a public servant that adversely affects his or her employment or appointment and includes but is not limited to,

(a) ending or threatening to end a public servant’s employment or appointment;

(b) disciplining or suspending or threatening to discipline or suspend a public servant;

(c) imposing or threatening to impose a penalty related to the employment or appointment of a public servant;

(d) intimidating or coercing a public servant in relation to his or her employment or appointment. 2006, c. 35, Sched. A, s. 139 (2).

Complaint about reprisal

140. (1) A public servant described in subsection (2), (3) or (4) may complain under this section that he or she has suffered a reprisal prohibited by section 139. 2006, c. 35, Sched. A, s. 140 (1).

Public servant not subject to collective agreement

(3) A public servant employed under Part III who is not subject to the terms and conditions of a collective agreement may file the complaint with the Public Service Grievance Board. 2009, c. 33, Sched. 17, s. 10 (15).

APPENDIX B

AUTHORITIES

1. Kutchaw and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P-2016-0184 (February 24, 2017) (O’Neil).

2. MacKinnon and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. P-2015-2662 (September 20, 2016) (Nairn).

3. Binda and The Crown in Right of Ontario (Ministry of Environment), PSGB No. P-2011-2193 (March 9, 2012) (O’Neil).

4. Ois and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB No. 2013-0884 November 13, 2014) (O’Neil).

5. OPSEU (Press) and The Crown in Right of Ontario (Ministry of Health and Long-Term Care), GSB No. 2003-1461 (October 9, 2007) (Mikus).

6. York (Municipality), [2002] OLRB Rep. May/June 481 (June 10, 2002) (Herlich).

7. Grifferty and The Crown in Right of Ontario (Ministry of Government Services), GSB No. P-2010-2240 (October 16, 2012) (Devins).

8. OPSEU (Reale) and The Crown in Right of Ontario (Ministry of Solicitor General and Correctional Services), GSB No. 1996-0606 (October 9, 1997) (Dissanayake).

9. Lyndhurst Hospital, [1997] OLRB Rep. July/August 616 (August 15, 1997) (O’Neil).

10. Hy’s Steak House, [1990] OLRB Rep. February 163 (February 20, 1990) (Gray).

11. Sobey’s Inc., [1996] O.L.R.D. No. 3565 (October 7, 1996) (Whitacker).

12. Noble v. York University, 2010 HRTO 878, (April 22, 2010) (Gotthiel).

13. Jones v. Amway of Canada, [2002] O.J. No. 1504, 159 O.A.C. 331 (Ont. S.C.J.)

14. OPSEU (Ghiandoni) and The Crown in Right of Ontario (Ministry of Solicitor General and Correctional Services), GSB No. 1994-0518, 1994-0519 (June 8, 1998) (Mikus).