Law Times

Page 12 November 10, 2014 • Law Times www.lawtimesnews.com Grievance matters Crown wins full hearing over merit pay denial due to poem BY MIcHAEl McKIERNAN For Law Times an the province deny a merit increase to a Crown prosecutor for reading a rhyme dur- ing closing arguments? An Otta- wa assistant Crown attorney will soon find that out as he seeks to challenge the Ministry of the At- torney General's denial of merit pay that could leave him out of pocket by as much as $70,000. The province denied John Ramsay, who works in the Crown office in Ottawa, a merit pay in- crease after he delivered his closing arguments in an impaired driving case in the form of a poem. He challenged the denial and recently won the right to a full hearing of his grievance after the Ministry of the Attorney General sought to dismiss it on a prelimi- nary basis without hearing viva voce evidence. Arguing on Ramsay's behalf, representatives of the Ontario Crown Attorneys' Association claimed the merit pay denial amounted to a disciplinary sanc- tion "without just and sufficient cause" in violation of his collec- tive agreement. Over the course of his career, they said the decision could cost Ramsay up to $70,000. Denying any disciplinary motive in its actions, the min- istry argued the issue of merit pay comes within its exclusive purview and should fall outside of the grievance procedure. But in his award on the mat- ter, arbitrator Bram Herlich dis- missed the ministry's motion, de- ciding a full hearing on the merits was necessary to settle the case. Although the facts remain in dis- pute, both sides agreed to argue the motion based on the associa- tion's version of events. "If I were satisfied that the facts as pleaded by the association failed to disclose even a prima facie case of a violation of the col- lective agreement, I would have granted the employer's motion," wrote Herlich in the award. "The characterization of mo- tive can, even in the best of evi- dentiary circumstances, involve a complex assessment. This is particularly so where, as here, one party denies any improper motive on its part and the other alleges that the true motive has been disguised. It is a determina- tion, in the circumstances of this case, which I prefer to make on the basis of evidence, not pleadings. . . . The matrix of factors relied on and pointed to by the association and the singular nature of the (al- leged) facts before me make the association's argument plausible, whether or not it may ultimately be persuasive." Lawyers for the ministry didn't respond to a request for comment, while association president Kate Matthews, who appeared on its behalf at the arbitration, declined the opportunity. "As the matter is still before the arbitrator, we are not in a position to comment," said Matthews in a statement. Ramsay's troubles began in August 2011, just over three years after his hiring as a CC1- level assistant Crown attor- ney. Closing a three-day trial in an impaired-driving case, Ramsay turned to poetry for emphasis. The rhyme, crafted the previous day during a long cross-examination by defence counsel, crammed references to witness evidence, a consti- tutional challenge by the de- fence, and more. The poem went down with- out incident in court as neither defence counsel nor the judge ex- pressed any concerns. While the court convicted the defendant, Joey Anderson, the case sparked a f lurry of media coverage when Ramsay provided a reporter from the Ottawa Sun with a copy of the submissions. Not all readers, which included high-ranking ministry officials, appreciated Ramsay's poetic efforts, some- thing he would discover on his next day back at the office. At a meeting with Ottawa Crown attorney Vikki Bair, she admonished him for the poem and his media contact and or- dered him to write an apology to management at the ministry. An additional apology in court followed at the sentencing hear- ing at which Anderson received a sentence of 60 days in custody. That was twice the minimum sentence for the offence. "The format of my closing sub- missions was not intended to de- tract from the solemnity and dig- nity of these proceedings," Ram- say said in court. He added that the Crown views impaired driv- ing as a "great public concern," ac- cording to an Ottawa Sun report of the sentencing proceedings. According to the association's account, with one of Ramsay's performance reviews approach- ing in March 2012, Bair warned him she was under pressure from superiors to give him a rarely is- sued "needs improvement/de- velopment" rating, the lowest of three available merit measures, due to the poetry incident. The association says Bair promised to "go to bat" for Ramsay, recom- mending a higher "commendable rating" to her regional director, but the ministry overruled her. In his first three years, Ram- say had always received a "com- mendable" rating, each of which came with a merit pay increase. The lower rating left him stuck on the sixth level of the CC1 pay scale, delaying his progress to the more senior CC3 classification that comes automatically with the 10th merit pay increase. After Ramsay grieved the de- cision, Bair confirmed the "needs improvement/development" rat- ing. The assistant deputy attorney general rejected a further appeal to the ministry. The ministry resisted Ram- say's grievance by pointing out the collective agreement doesn't contemplate filing a grievance over merit pay denial. It also argued the denial was merely an exercise of its acknowledged managerial discretion. The association, on the other hand, characterized the denial as disguised discipline. It pointed to the rarity of a "needs improve- ment/development" rating, the unusually high levels of manage- ment involved in the performance review process, and Ramsay's oth- erwise exemplary conduct. Herlich sided with the associa- tion in deciding Ramsay's case re- quires a full hearing on the merits despite the ministry's concern it could encourage more merit pay- related grievances. "I am sensitive, indeed sym- pathetic, to the employer's con- cern that allowing its motion to fail may lead to more grievances being filed challenging the de- nial of merit pay. However, I am comforted by the association's apparent acknowledgement that the denial of merit pay in an in- dividual case is not, in and of it- self, the proper subject of a griev- ance. Where, however, the facts alleged can be seen to plausibly support a claim of discipline, it may be that such cases need to be decided on their merits, not on the basis of preliminary mo- tion," wrote Herlich. LT FOCUS No other resource offers you as much understanding about the theory and value of mediation as this new publication by conflict management expert Blaine Donais. The Art and Science of Workplace Mediation shows how mediation applies to the entire field of workplace disputes and the purpose of the various approaches. 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Price(s) subject to change without notice and subject to applicable taxes. 00222RA-A45918 New Publication The Art and Science of Workplace Mediation Blaine Donais, LL.B., LL.M., C.MED., RPDR, WFA C Abridged version of Ramsay's poem, according to a Sun report On July 16, 2010 Crashed his car, did Mr. Anderson Without second thought, two citizens did stop And called 911 for fire and cops At 0220 Blanchette did arrive To see if the lone occupant did survive And peeking his head through the windshield did hear Mr. Anderson's claim of "only drinking 15 beer" From beginning to end no one can say That police sat idle or created delay As medics did work, the police withdrew In consideration this was not just a flu Beers at a cottage, 15 did he drink And proceed to drive, rather than think A marked departure from the reasonable driver Mr. Anderson is fortunate he's a survivor Reasonableness of their acts does exude The samples of breath, you ought to exclude His rights were respected by all those involved This poem's near over, this crime is solved And all that is based on a finding of breach The existence of which the Crown doth impeach After two days of trial your honour will see The only verdict is guilty

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