PSGB# P-2018-1344

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mueller

Complainant

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT

Sebastian Mueller

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN REPRESENTATIONS

September 7, 24 and October 15, 2018

INTERIM DECISION

1This decision deals with a request for interim relief pending the hearing of the merits of the complaint.

2The background is summarized as follows. The complainant, Sebastian Mueller, has filed a complaint that takes issue with a paid suspension being imposed on him on May 23, 2018. That paid suspension was originally described as a 20-day paid suspension pending investigation. The Form 1 complaint also details allegations of misconduct on the part of the complainant’s Bureau Commander, and to a lesser extent the complainant’s immediate supervisor, at the Ontario Provincial Police (“OPP”). The complainant is employed as a civilian manager within the OPP.

3Those allegations of misconduct against the Bureau Commander relate to a number of issues, including allegations as to the complainant’s treatment in the workplace over the period preceding the suspension and including the alleged matter for which the complainant appears to have been suspended and for which his spouse was allegedly terminated from a position within the OPP almost immediately after her hire. It is the Employer’s position that the allegations of misconduct against the Bureau Commander were not raised with the Employer until after the complainant was placed on paid suspension pending investigation. The complainant disputes that assertion.

4The letter of suspension makes reference to an investigation into the complainant’s “conduct” and does not provide any written indication of the Employer’s concern on May 23, 2018. There appears to be some dispute as to when the complainant was advised of the reason for the paid suspension. However, the Employer has now asserted that the suspension pending investigation was in response to an allegation that the complainant improperly interfered with and/or influenced a hiring process pursuant to which the complainant’s spouse was hired into an OPP position, as well as an issue relating to compliance with disclosure requirements under the conflict of interest policy. The complainant denies the allegations.

5The Employer has initiated an independent investigation of the allegations made in the complaint against the Bureau Commander and supervisor pursuant to the Employer’s Respectful Workplace Policy. That investigation appears to be ongoing and the complainant has agreed to be interviewed by that investigator.

6A second investigation under the Police Services Act has also been initiated by the Employer into allegations of an improper hiring process managed by the Staff Sergeant responsible. The complainant takes the position that he cannot be the subject of a Police Services Act investigation as a civilian member of the OPP and that he has been identified only as a witness in that investigation. He is aware that any such investigation would likely overlap with the allegations made against him. Thus, there appears to be some concern as to the nature of the complainant’s role in that process, a concern that remains outstanding at this writing. As a result, it appears that the complainant has to date declined to be interviewed as part of that investigation pending further clarification.

7The complainant is currently working in a seconded position with a different Ministry (referred to as the “Host Agency”). A secondment agreement dated August 3, 2018 and purportedly signed by the complainant was filed by the Employer. The complainant took no issue with its veracity. It appears that the complainant was removed from the paid suspension while he works in the seconded position; a position currently expected to end in August 2019. Whereas his home position is in Orillia, this secondment is situated in downtown Toronto. The complainant appears to reside in Orillia.

The request for interim relief

8The complainant’s request for interim relief arose during the course of setting a hearing date. The two earliest dates offered were not available to the Employer or its counsel and the complainant took the position that those early dates ought to be scheduled, notwithstanding the Employer’s response. The dates of March 27 and June 11, 2019 have since been confirmed for the arbitration of this matter. It is also the case that should the parties agree to utilize one or both of those dates to attempt to mediate the dispute, the Board can readily accommodate that agreement. However, the matter has been formally scheduled for arbitration, making it clear that the parties are to be ready to proceed with their evidence and submissions with respect to the issues in dispute.

9In his submission to the Board by email dated September 7, 2018 the complainant seeks interim relief pending the mediation and/or arbitration of his complaint. He has asked that the Board:

1. order the Employer to cover the costs incurred in order to attend his temporary work location, including reimbursement for parking and associated travel (whether provision of a car or reimbursement for mileage) and pay for hours spent commuting to the temporary work location;

2. order that immediate measures be implemented to protect the public service and the OPP by suspending the individuals that he alleges are at the root of creating the serious, ongoing and troubling working conditions;

3. direct the Employer to pay the complainant’s legal fees already incurred and to be incurred in relation to these matters.

10The Employer’s response to the complainant’s request was received on September 24, 2018. Subsequently, on October 15, 2018, the complainant’s reply submissions were received. All of those submissions as well as the complainant’s Form 1 have been reviewed and considered in the context of making this interim determination. And, to be clear, the allegations made by both parties relevant to the proceedings before this Board remain untested and in issue. So, to the extent that the complainant raises concerns that the Employer’s assertions ought to require evidence (for example, whether he in fact violated conflict of interest rules), such is the case. At this stage, the Employer alleges certain matters, as does the complainant in his Form 1.

11The complainant asserts that the Employer holds the primary obligation to ensure that the workplace is free from discrimination and harassment, arguing that the requests for interim relief are a means of reducing the hardship inflicted by the Employer, of protecting the public service, and of allowing him to be in a position to defend himself.

12With respect to the first request for interim relief, the complainant asserts that the suspension was unlawful and in bad faith. The complainant asserts that the Bureau Commander acted without proper information and with an intent to deceive in order to achieve his real goal, that being, the removal of the complainant from the workplace.

13The complainant asserts that the Employer is responsible for causing the resulting hardships and must be responsible for reducing them, particularly where the complainant attempted to resolve the issues with the Employer quickly and efficiently. The complainant refers to the additional hours each day spent commuting to and from Toronto and the additional expenses incurred in that regard. The complainant notes that his only other option would be to return to a paid suspension from his home position with the OPP, an option not acceptable to him personally or as a public servant.

14In his submissions the complainant raised a number of concerns about the secondment. He reiterates that any failure on his part to agree to a secondment would have resulted in him remaining on a paid suspension, asserting that the Employer had thereby signified his constructive dismissal. In this regard, he asserts that he had no choice but to accept the secondment. He takes issue with the Employer having removed him from the paid suspension while he works in the seconded position as the Employer has not also agreed that the suspension was either improper in the first place or that the investigation has concluded with no finding of any culpable conduct.

15With respect to the second request for interim relief, the complainant argues that irreparable harm will result if the relief is not granted. He asserts that further complaints have since been filed by other individuals with respect to their treatment by the Bureau Commander and the supervisor, causing further significant psychological distress in the workplace. The complainant relies on what he asserts is the Employer’s failure to accept credible evidence that supports the Employer’s need to intervene to protect its workers pursuant to its obligations under the Occupational Health & Safety Act. He asserts that the Employer’s manner of dealing with these issues reflects a larger underlying problem that is contributing to harm. The complainant asserts that the Employer’s failure to similarly suspend these individuals with pay pending investigation constitutes a failure on the Employer’s part that requires rectifying in order to protect others, particularly, he asserts, in circumstances where the allegations are more serious than those for which he was suspended and where it is required to maintain the public trust.

16With respect to the third request for interim relief, the complainant acknowledges that the Board has held that costs should not be awarded to a party except in the most exceptional circumstances. He asserts that an award of costs is particularly warranted when the Employer has engaged in harassing and discriminatory conduct as he asserts has occurred in this case.

17The complainant argues that, as the Employer’s actions against him are evidently in bad faith, he has no choice but to defend himself and the required legal assistance causes severe hardship. The complainant argues that the issues raised by his complaint go beyond simply the labour relations issues and include alleged breaches of the Public Service of Ontario Act, 2006, the Occupational Health & Safety Act, the Ontario Human Rights Code, the Charter of Rights and Freedoms, as well as condoning Criminal Code violations.

18The complainant asserts that the absence of dedicated legal representation will severely hinder the administration of justice and that his complaint is important as it seeks to also protect the public service and the public trust. The complainant asserts his belief that this complaint is unprecedented in terms of its magnitude and severity.

19The Employer argues that the onus is on the complainant to establish that extraordinary interim intervention is appropriate. It is the position of the Employer that, fundamentally, the complainant is seeking the remedial relief to which he would only be entitled following a determination of the merits upholding his claims. The Employer asserts that the decision to suspend the complainant with pay pending investigation (to a maximum of two years) is entirely within the Employer’s authority under sub-section 36(2) of the Public Service of Ontario Act, 2006 (the “PSOA”). Furthermore, argued the Employer, to provide the relief sought in the first interim request would result in the complainant resiling from the agreed upon terms and conditions of the secondment agreement that remain in effect until August 2019. The complainant was aware of the work location of the secondment and the terms and conditions relating to any pay for travel costs or time, argued the Employer, and chose to accept that secondment in any event. He could, it argued, have remained on paid suspension.

20The Employer argues that the Board has no jurisdiction to order the suspension of other personnel from the workplace. In any event, argues the Employer, such a request is an attempt to dispose of the dispute in the complainant’s favour prior to any determination on the merits and would inappropriately circumvent the arbitration process by seeking a remedy now that, even if successful at hearing, is one the complainant is unlikely to obtain.

21Finally, the Employer argues that the complainant is seeking full indemnification of his legal costs regardless of whether he is ultimately successful on the merits. The Employer argues that, even if costs can be ordered by this Board, they are ordered only following a successful outcome on the merits and only in the most exceptional of cases, and that neither of those circumstances apply at this juncture.

22I was referred to and have reviewed the following decisions: The Crown in Right of Ontario represented by Management Board of Cabinet [1996] OLRB Rep. Sept/Oct 780, reported at 1996 CanLII 11200 (ON LRB); and Amalgamated Transit Union - Local 1587 (Janczak) and Metrolinx – Go Transit, GSB #2016-1557 reported at 2017 CanLII 7059 (ON GSB).

23This Board is created and acquires its jurisdiction under the terms of the PSOA. Section 23(1) 1 of the PSOA confirms, inter alia, that the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”) applies to proceedings before the Board. Section 16.1 of the SPPA provides:

16.1 (1) A tribunal may make interim decisions and orders.

Conditions

(2) A tribunal may impose conditions on an interim decision or order.

Reasons

(3) An interim decision or order need not be accompanied by reasons. 1994, c. 27, s. 56 (32).

24The Board’s jurisdiction to make interim orders is also acknowledged by virtue of Ontario Regulation 378/07, made under the PSOA, which expressly prohibits the Board from reinstating a person to employment as a public servant on an interim basis, a direction that would not be required if the Board had no jurisdiction to make interim orders.

25However, the granting of interim relief is an extraordinary remedy and the onus is on the complainant to satisfy the Board that such relief is warranted in the circumstances.

26In reviewing the appropriate approach to granting interim relief under the SPPA in its decision in The Crown in Right of Ontario represented by Management Board of Cabinet, supra, the Ontario Labour Relations Board stated:

45 It is difficult to attempt to list the myriad factors that the Board considers when dealing with applications for interim relief, for one can fairly describe the approach as an attempt to take into account all the relevant circumstances, including, as [the decision in Ombudsman Ontario [1994] OLRB Rep. July 885] indicates, the interests of the responding party. Those circumstances include a consideration of the nature of the specific remedy sought, and the fact that an interim order is an extraordinary remedy and ought not to be granted without consideration for the appropriateness of granting such relief before a hearing on the merits…

49 …Although our authority now derives from a statute of general application, the general interim power granted to the Board, and other tribunals, through the SPPA, is in our view a plenary authority to make interim orders that are related to the tribunal's constituent statute, and the rights, obligations and duties contained therein.

50 The SPPA does not give a tribunal a general inherent power to make interim orders of any nature and for any purpose. It gives an interim power that is not defined within the SPPA, but which must be exercised in a manner responsive to and with a view towards the purpose, function and powers of the tribunal in question, as defined by the statutory enactment setting up or regulating the tribunal…

27This Board has found that interim relief was not warranted when the arguments did not establish that the Board’s remedial powers would be insufficient to fashion an appropriate remedy following a full hearing of the merits. In Graham v Ontario (Community Safety and Correctional Services), 2013 CanLII 57074 (ON PSGB) the then Chair of the Board stated:

3After considering the submissions in this matter, the Board has decided that the complainant has not made out a case for interim relief. The complainant in his submissions made a number of arguments in support of his complaints but none of them establish that the Board’s remedial powers would be insufficient to fashion an appropriate remedy following a full hearing of the merits of his complaints. The Board has a broad remedial power that includes orders of reinstatement to employment, the awarding of compensatory damages, and other types of orders to remedy any breach of the complainant’s terms of conditions of employment. These powers, in the Board’s view, would provide the complainant with an appropriate remedy if his complaint should succeed.

28I am not persuaded that the complainant is entitled to the interim relief requested. Although the SPPA does not require that reasons be provided in respect of an interim decision, brief reasons for denying the complainant’s request for interim relief follow.

29Fundamentally, the complainant takes issue with the fact that he has been placed on a paid suspension pending investigation of certain allegations made against him. He denies those allegations and asserts that the Employer acted in bad faith and/or in a discriminatory fashion prior to his suspension, in making the allegations leading to the suspension, and thereafter suspending him.

30Much of the complainant’s submission with respect to his requests for interim relief deal with the merits of his complaint and his response to the Employer’s stated position. Those issues will be dealt with at the hearing of the complaint and are relevant at this stage only for the purpose of understanding the nature of the allegations and positions that will be advanced. The time for presenting evidence and argument with respect to those concerns is at the arbitration of the merits of the complaint. So, for example, at this stage there has been no finding that the Employer acted in bad faith and any decision with respect to interim relief can recognize only that bad faith has been alleged.

31It is also apparent that the complainant feels that his complaint should proceed forthwith and that he is concerned about any delay in its scheduling. There does not appear to be any untoward delay. Rather, the delay is of the sort normally referable to availability and scheduling conflicts. The complainant takes issue with, and does not trust the Employer’s actions in the interim in maintaining the status quo as it applies to his Bureau Commander while he (and his spouse) has been subject to consequences with respect to his employment. However, those issues also relate to his assertion that the Employer has acted in bad faith in placing him on a paid suspension.

32Turning to the first request for interim relief, the complainant acknowledges that he could have remained on paid suspension. Had he done so, he would not be incurring the commuting costs claimed or the time spent while commuting. The complainant appears to have felt a personal obligation as a public servant not to remain on paid suspension, although he asserts that he had no choice. As well, the secondment agreement indicates that the Host Agency is responsible for the payment of travel expenses incurred by the complainant while engaged in “operational duties” for the Host Agency. That agreement does not obviously capture costs and paid time associated with commuting to that workplace and there was no suggestion that the Host Agency had conceded that claim. That may be a matter between the complainant and the Host Agency but arises in the context of this complaint only to the extent that it is an alleged result of the alleged bad faith on the part of the Employer.

33Thus, at this stage, the complainant is seeking reimbursement for travel expenses and pay for travel time to which he may, or may not be entitled, even if successful following a hearing of the merits of his complaint. Whether he is entitled to either claim can only be determined following a hearing of the merits of the complaint. The Board’s remedial powers are sufficiently broad so as to enable it to fashion an appropriate remedy following such a hearing on the merits, should the complainant succeed. The first request for interim relief is therefore denied.

34Dealing with the second claim for interim relief, it is the Employer’s position that the Board has no jurisdiction to make such an order. As such, a hearing would be required in order to determine that issue. Absent jurisdiction, the Board cannot act. However, even if this Board has the jurisdiction to order the Employer to suspend other individuals from their employment on an interim basis, that is not an order that this Board would make in the absence of a full hearing. Any such hearing would necessarily require notice of such requested relief to those individuals and an opportunity for them to participate. In any event, granting such interim relief would effectively result in making a finding on the merits of the complaint as it would effectively confirm the bad faith allegation. This second request for interim relief is therefore denied.

35Finally, the complainant seeks legal costs already incurred and to be incurred in pursuit of the complaint. No such interim order is warranted. Legal costs are not normally ordered in the context of Board proceedings even where a complainant has successfully established his or her claim on the merits. They are not appropriately ordered in circumstances where no such determination has yet been made and/or regardless of whether a complainant is successful in establishing his or her claim on the merits. This third request for interim relief is therefore denied.

36Having regard to all of the above, the complainant’s request for interim relief is hereby denied.