Although the main dispute (termination from the home position) has not yet been arbitrated and is scheduled to be heard later in 2015, an arbitrator ruled on a preliminary motion brought by the Association of Law Officers of the Crown on behalf of the discharged articling student.
At issue in that motion was: Assuming, for the purposes of the argument, that MOH had just cause to terminate Speck’s employment, is that sufficient by itself to satisfy both the just cause provisions of the ALOC collective agreement and the requirements for articles of the Law Society of Upper Canada?
For six years, Todd Speck worked as a program analyst for the Ministry of Health and Long Term Care. He took an educational leave of absence from September 2008 to May 2010 to get his law degree. He continued to work for MOH.
On Feb. 19, 2013, Speck was informed he was being suspended with pay pending an investigation against him under the Workplace Discrimination and Harassment Policy and Workplace Violence Prevention Policy.
While under the non-disciplinary suspension from MOH, Speck got an articling job with MAG, to serve at the Financial Services Commission of Ontario. A temporary assignment agreement was concluded between MAG, as the receiving ministry, MOH, as the releasing ministry, and Speck in July and August 2013 so Speck could work as an articling student.
On July 29, 2013, Speck started working at FSCO as an articling student and his disciplinary suspension ended. He was alerted to the potential jeopardy to his articling student position as a consequence of the MOH investigation in to his alleged misconduct.
The period of the secondment to MAG/FSCO was from July 29, 2013 until May 30, 2014, to allow Speck to complete his articles. During this period, he was to be under a fixed-term contract. He signed a fresh Conflict of Interest Attestation, completed a fresh Oath of Office and a fresh Oath of Allegiance. That done, his articles officially began July 29, 2013, for 10 months.
While working for MAG at FSCO Speck was subject to the collective agreement between Association of Law Officers of the Crown and the province. Article 5.1 gave just case protection to him. He could be fired only “for just and sufficient cause.”
On Feb. 3, 2014, Speck was advised in writing by MOH that it had completed its investigations determined that he had breached the WDHP policy in various ways. MOH informed him it had concluded his conduct had given just cause for his dismissal and that he was being fired for cause. He was told that he ceased to be employed by the Crown.
ALOC, supported by the Association of Management, Administrative and Professional Crown Employees of Ontario, argued it was not sufficient; the Crown argued it was.
In the decision, arbitrator Christopher Albertyn stated: “There is no suggestion that Mr. Speck engaged in any culpable conduct as an articled student to give his principal or FSCO or MAG just cause to terminate his articles. It is common cause that his articles were terminated only because his employment with the Crown was terminated by MOH. In fact, Mr. Speck was given unqualified letters of commendation for his work as an articling student by his principal and other lawyers he worked for.
However, Albertyn concluded: “Accordingly, on the assumption of just cause for the termination at MOH, that is sufficient to satisfy the just cause provisions of the ALOC collective agreement.”
Albertyn said he rejected the suggestion Speck’s conduct at MOH is akin to off-duty conduct with respect to his employment at MAG.
“MOH and MAG are sections of a single employer. His conduct in one section is directly relevant and germane to his conduct in the other. That is why, under s. 40 of the Act, if there is just cause to dismiss a public servant in any section, in any ministry, the individual is dismissed from the Crown.”
Update Feb. 10, 2015: Story amended to clarify that the arbitrator in the matter was ruling on a preliminary motion only. Legal Feeds regrets any confusion caused, and wishes to apologize to Mr. Speck.