PSGB# P-2017-0258; P-2019-1089

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Potter

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Andrew Tremayne

Vice-Chair

FOR THE COMPLAINANT

Jessica Greenwood Raven, Cameron, Ballantyne & Yazbeck LLPS Counsel

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 26, 2019 by Teleconference

DECISION

1Mr. Potter’s employment was terminated on March 9, 2017 after an investigation into an incident that occurred at the Quinte Detention Centre on December 24, 2015. In a decision dated October 2, 2018 (Board File P-2017-0258), the Board found that the penalty of discharge for his role in the incident was excessive. The employer was directed to reinstate Mr. Potter and to pay him compensation from the date six months after his discharge until he was reinstated. In effect, the Board substituted a six–month unpaid suspension for his termination.

2The Board also directed the parties to develop a training plan so that the employer’s concerns regarding the deficiencies in Mr. Potter’s paperwork and report writing skills, as well as any other shortcomings in his managerial abilities, could be addressed. The parties were directed to do so within 60 days of the date of the decision, or within such other period as they may agree. The Board remained seized with respect to the implementation of the decision.

3Counsel for Mr. Potter takes the position that the employer has not fully complied with the October 2, 2018 decision. Specifically, Mr. Potter says that although he was returned to work in October 2018, the training plan has not been completed. As a result, asserts Mr. Potter, the employer has failed to properly implement this part of the Board’s decision. The employer disagrees, and says that it has complied with all parts of the decision.

4There have been other recent developments involving these parties. On July 5, 2019, the Board received a complaint (Form 1) from Mr. Potter alleging that his employment at the Quinte Detention Centre was terminated on May 13, 2019 (Board File P-2019-1089). The complaint alleges that his dismissal was unjust and unreasonable. In “Appendix A” to the complaint, Mr. Potter says that his employment was terminated based on four incidents, which are alleged to have occurred in December 2018 and January 2019, soon after his reinstatement. Among other things, the complaint also makes the following allegation:

Mr. Potter had recently returned from a lengthy period of absence and was not familiar with the reporting policies and procedures. Notably, paragraph 62 of the Decision directed the parties to develop a training plan for Mr. Potter. However, upon on his return to work, Mr. Potter received incomplete training which did not cover important areas, including, use-of-force, CPR, Narcan, Occurrence Report and Incident Report drafting.

5As noted above, the employer’s alleged failure to develop a training plan is also the basis for Mr. Potter’s position that the employer has not fully complied with the Board’s October 2, 2019 decision.

6The Board’s rules allow it to consolidate cases in the following circumstances:

22. The Board may consolidate or hear cases at the same time or immediately one after the other when it appears to the Board that:

(a) the complaints have a question of law or fact in common;

(b) the relief claimed in the complaints arises out of the same transaction or occurrence or series of transactions or occurrences, or;

(c) for any other reason an order ought to be made under this rule.

7It appears that the issue of whether the employer developed a training plan in accordance with the October 2, 2019 decision may be relevant to the complaint that was filed on July 5, 2019 (and keeping in mind that at this stage, I have assumed that the facts as set out in the complaint are true and can be proven). In other words, it appears that there are common questions of fact to be determined with respect to both Mr. Potter’s assertion that the employer has not fully complied with the Board’s October 2, 2019 decision and his new complaint that the termination of his employment on May 13, 2019 was unjust and unreasonable. It also appears that the relief claimed by Mr. Potter in the new complaint arises, at least in part, out of the same transaction or occurrence (or series of transactions or occurrences), namely whether the employer developed a training plan in accordance with the October 2, 2019 decision. As a result, I find that the two matters should be consolidated.

8Board File P-2017-0258 and Board File P-2019-1089 are hereby consolidated. The mediation and hearing dates for Board File 2017-0258 took place in Kingston on the consent of the parties, so it is appropriate that the hearing of these consolidated files also take place in Kingston unless the parties agree otherwise. These matters are referred to the Registrar so that hearing dates may be scheduled accordingly.