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November 29, 2006 |
Issue No. 1 |
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EMPLOYER'S AMBIGUOUSLY WORDED CONFLICT OF INTEREST POLICY NOT GROUNDS TO TERMINATE EMPLOYEE, ARBITRATOR RULES A Manitoba arbitrator reinstated an employee who was terminated for holding two government jobs in violation of a government conflict of interest policy. The conflict arose after the employer, a formerly independent agency, became a part of the government. The arbitrator ruled that the policy was ambiguous, and that employees had not been adequately informed of its potential consequences. Given these failings, it was unreasonable to terminate the grievor's employment because of a breach of the policy. Details below. See also section 13.3 in Leading Cases on Labour Arbitration. ONTARIO INTRODUCES WHISTLEBLOWER PROTECTION, CLEARER RULES ON CONFLICT OF INTEREST AND POLITICAL ACTIVITY FOR PUBLIC SERVANTS The Ontario government has introduced legislation that will (1) establish a framework with clear procedures for determining when and how government employees can engage in political activities, and what activities will be considered to amount to a conflict of interest (ss.56 to 71 – conflict of interest; ss.72 to 107 – political activity) and (2) create whistleblower and anti-reprisal protections for public servants who seek to disclose wrongdoing or malfeasance in government (ss.108 to 150). In addition, the Act will, if passed, bring about several other changes to existing legislation, including the restoration to Ontario government employees of the same successor rights enjoyed by other employees in the province, and the creation of a separate statute governing collective bargaining with the Ontario Provincial Police. Details below. |
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— DETAILED REPORTS — |
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EMPLOYER'S AMBIGUOUSLY WORDED CONFLICT OF INTEREST POLICY NOT GROUNDS TO TERMINATE EMPLOYEE, ARBITRATOR RULES The Facts: A conflict arose for the grievor, Michael Welfley, when the Winnipeg Child and Family Services ("WCFS") became part of the Manitoba government in March 2003. At that time the grievor was working in WCFS's emergency shelter division as a casual employee, and was also employed on a full-time basis by Manitoba Corrections as a juvenile counsellor in the Manitoba Youth Centre ("MYC"). Manitoba Corrections' conflict of interest policy prohibited full-time employees from working for any other provincial department within the Civil Service. Moreover, according to the policy, "[f]atigue and conflicting demands are likely to affect performance and availability. The total hours of combined government work does not exceed the regular hours of equivalent full-time work, unless specifically approved in advance by management...." However, one of the terms of WCFS's integration into the government was that WCFS employees would not become part of the Civil Service. At first, no one seemed to notice that there might be an issue with the grievor's dual employment. While his direct supervisors at MYC were aware that he was also working for WCFS, it was more than a year after the transition that Manitoba Corrections managers learned of the situation. The grievor was then informed he must choose between the two jobs. When he refused to resign from his MYC position, Manitoba Corrections informed WCFS management of the conflict, who in turn wrote to the grievor, terminating his employment. The Canadian Union of Public Employees filed two grievances. The first disputed the grievor's termination, and the second claimed overtime for the hours he had put in at WCFS while also working full-time hours at MYC. The Arguments: WCFS argued that, since the grievor had chosen to maintain his employment with MYC, his employment with WCFS had to be terminated in accordance with the rule in MYC's conflict of interest policy. WCFS took the position that the rule was enforceable, and that MYC and WCFS were a single employer. As for the demand for overtime pay, WCFS argued that the grievor had never sought approval to work overtime hours, as required by Manitoba Corrections and WCFS policies. In the alternative, WCFS relied on a clause in the collective agreement setting out a 30 day time limit for filing grievances related to overtime hours. CUPE countered that the grievor was not in violation of the conflict of interest policy, since WCFS employees were not part of the Civil Service. In the alternative, CUPE disputed that the policy was valid according to the criteria in Lumber and Sawmill Workers Union, Local 2537 v. KVP Co. Ltd. (1965), 16 L.A.C. 73 (Robinson). While it agreed that the rule was not inconsistent with the collective agreement, it argued that it did not meet any of the remaining criteria, i.e., conformity with the collective agreement, reasonableness, clarity and notification, and consistency of enforcement. On the overtime question, CUPE pointed to the fact that the WCFS coordinators knew that the grievor was working full-time hours at MYC, and nevertheless assigned him additional hours. It further argued that the arbitrator should not apply any procedural or time limit requirements which might otherwise bar a full overtime claim, since the grievor believed in good faith that he had two employers. The Decision: Arbitrator Arne Peltz allowed the first grievance, and denied the second. Regarding the conflict of interest issue, Peltz held that, while the first paragraph of the MYC policy was ambiguous, since it could be read as prohibiting dual government work, as WCFS argued, or as prohibiting dual employment only within the Civil Service, as CUPE argued, the second paragraph, which referred more broadly to "government work" in general, clearly indicated an intention to prohibit dual government employment both within and outside of the Civil Service. However, the ambiguity affected the enforceability of the policy, given the requirements in KVP. Although, in his view, the rule was reasonable, given operational and financial concerns, Peltz found that "the rule against dual employment is not sufficiently clear and unequivocal ... to meet the KVP standard." He held that the standard for construing a unilaterally imposed employer rule was different than that for interpreting language in a collective agreement: "The KVP requirements for clarity and notification are intended to ensure basic fairness to employees when faced with a rule imposed unilaterally by an employer and not endorsed by the union. To be enforceable, such a rule must be clear and the employee must receive reasonable notification." In this regard, Arbitrator Peltz found a lack of notice to employees, noting that "it was not established that the grievor was notified of a dual employment policy. Given the fact that WCFS staff in CUPE were government employees without civil servant status, it reasonably follows that some rights and obligations attaching to civil servants would not apply to WCFS employees such as the grievor... [A]n employee in the grievor's shoes could reasonably assume that some rights and obligations held by other government employees would not attach to him because he did not become a civil servant." Following from this, Peltz held that "it was incumbent on WCFS management to ensure that the CUPE work force was properly informed about the nuances of their non-civil service status, at least if it was intended to enforce a general rule such as the prohibition on dual employment..." However, while Peltz therefore found that the grievance must "succee[d] on the basis that the rule against dual employment failed the KVP test, and in particular the requirements for clarity and reasonable notification," he concluded that, since "the rule is not unreasonable[,] once it has been clarified and properly communicated, there is no reason to hold that the rule cannot be enforced," adding that "[t]his award constitutes clarification and notification." On the overtime question, moreover, Arbitrator Peltz declined to exercise his discretion to extend the time limits for filing a grievance. While he accepted that the grievor was not aware that he was working for a single employer, he also found that the employer was not fully aware of the dual employment situation. Once made aware of the situation, the employer had acted expeditiously to respond to the problem. Therefore, he concluded, "[o]n balance, it would not be just and equitable to grant relief." Comment: According to the long-established KVP test, rules issued unilaterally by an employer, i.e., without the union's consent, must be clear and unambiguous, and must be clearly communicated to employees. If they are not, they will not be enforceable at arbitration. For further discussion of employer policies, see section 13.3 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). Case Name: Canadian Union of Public Employees, Local 2153 v. The Province of Manitoba, Department of Family Services and Housing (Winnipeg Child and Family Services) |
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ONTARIO INTRODUCES WHISTLEBLOWER PROTECTION, CLEARER RULES ON CONFLICT OF INTEREST AND POLITICAL ACTIVITY FOR PUBLIC SERVANTS On November 2, stating that its proposed legislation will "ensure that the public service meets public expectations for transparency, accountability and professionalism while at the same time providing safeguards and protections that public servants need to do their jobs," the Ontario government introduced Bill 158, the Public Service of Ontario Statute Law Amendment Act. If passed, the Act will substantially revise and update the employment rules governing public service employees working for Crown corporations, agencies, tribunals and advisory boards in Ontario. It will repeal and replace the existing Public Service Act, and introduce changes affecting the employment of Ontario's 65,000 public servants, including, among other things, whistleblower protection for those who disclose wrongdoing, and clearer rules regarding conflict of interest and political activity for employees in the public service. As drafted, the Act would bring about the following major changes in respect of the rules which currently govern public service employees in Ontario: (1) establish a framework with clear procedures for determining when and how government employees can engage in political activities, and what activities will be considered to amount to a conflict of interest (ss.56 to 71 – conflict of interest; ss.72 to 107 – political activity) and (2) create whistleblower and anti-reprisal protections for public servants who seek to disclose wrongdoing or malfeasance in government (ss.108 to 150). In addition, the Act would bring about several other changes to existing legislation, including the restoration to Ontario government employees of the same successor rights enjoyed by other employees in the province, and the creation of a separate statute governing collective bargaining with the Ontario Provincial Police. Whistleblower protection Under the proposed whistleblower provisions in Part VI, public sector employees seeking to report "wrongdoing" in the workplace will now have access to clear procedures for the disclosure and investigation of claims of malfeasance, including the right, in certain circumstances, to make a disclosure directly to the Integrity Commissioner for Ontario, and protection from any acts of reprisal which might arise from such disclosure. Section 108 of the proposed Act defines "wrongdoing" to include any "contravention by a public servant, a minister or parliamentary assistant" of any "Act of the [provincial] Assembly of ... Canada, or ... a regulation" thereto; an "act or omission" by any of the above persons which "creates a grave danger to the life, health or safety of persons or ... the environment"; or "gross mismanagement" by a public servant, minister or parliamentary assistant. While s.115 of the Act authorizes the Public Service Commission and Management Board of Cabinet to establish procedures to deal with disclosures of "wrongdoing" by a public servant or former public servant – including to whom and the manner in which disclosures are to be made – under s.116, employees retain the right to make a disclosure directly to the Integrity Commissioner, where the public servant or former public servant "has reason to believe that it would not be appropriate" to disclose in accordance with s.115, where the public employee has already disclosed under that section and believes that the matter is "not being dealt with appropriately," or in cases where no directive under s.115 has been issued. Where the Integrity Commissioner decides to deal with a matter, the legislation gives the Commissioner broad powers to investigate and issue a report, including the right to make a report public, where he or she is "of the opinion that it is in the public interest that a public report be made." Finally, under s.133, the Integrity Commissioner would be required to submit an annual report to the Speaker of the Legislative Assembly including information on the number of disclosures received and reports issued during the year, as well as any outcomes and recommendations, and "anything else that the Commissioner considers relevant in respect of his or her activities" under the Act. The Act also includes reprisal protection (ss.139 to 142) for any public servant who has made or sought advice about a disclosure of "wrongdoing", with the right to have a complaint of reprisal dealt with under the arbitration provisions of a collective agreement or, where no collective agreement exists or the public servant so elects, by the Ontario Labour Relations Board (s.140). Section 140(9) provides that any person who deals with a reprisal complaint has broad authority to grant a remedy, including the right to order reinstatement and compensation for the "loss of any remuneration, including benefits" arising from the reprisal. Under s.143, persons found guilty of an act of reprisal may be subject to penalties, including "disciplinary measures [such as] suspension or dismissal." Rules on conflict of interest and political activity The Act also proposes a comprehensive scheme for regulating conflict of interest in respect of public service employees. Specifically, sections 67 to 71 contemplate that government agencies and ministries be responsible for creating and enforcing their own conflict of interest rules, subject to approval by an independent Conflict of Interest Commissioner (failing which, regulations made by the Lieutenant Governor in Council under s.71 of the Act would apply). Sections 72 to 107 provide for a similar scheme in respect of political activity rights of public servants – for example, the right to demonstrate support for a federal, provincial or municipal party or candidate, make financial contributions to a party or candidate, run for public office or solicit funds on behalf of a candidate in a federal, provincial or municipal election – and set out the process by which a public servant may seek a leave of absence or other authorization to engage in such activities. Section 99 specifies penalties for those who participate in political activity contrary to the rules, while s.103 guarantees protection from reprisal where an employee engages in political activity, or declines to do so, in accordance with his or her rights under the Act. Successor rights and police collective bargaining A further feature of the proposed law is the restoration of successor rights, removed in 1995, to Ontario government employees and employees of certain Crown agencies. If passed, such provisions will ensure that these employees again enjoy the same rights as other employees to continuation of their bargaining and collective agreement rights on transfer of a government undertaking. Finally, under the legislation as now proposed, the provisions of Part II of the current Public Service Act relating to collective bargaining for the Ontario Provincial Police would be transferred, essentially unchanged, into a new stand-alone statute, the Ontario Provincial Police Collective Bargaining Act. Reaction Ontario's two largest public employee unions have reacted positively to the legislation, and in particular the provisions respecting whistleblower protection. Gary Gannage, president of the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO), expressed the association's view that the legislation, if enacted, will be "the strongest in Canada and will serve as an effective accountability mechanism for the citizens of this province." Ontario Public Service Employees' Union spokesperson Randy Robinson also stated that OPSEU is pleased that employees who seek to disclose wrongdoing under the proposed provisions will not be limited to internal reporting, but will have direct access to an Integrity Commissioner. |
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