Comments on Bill 3: Public Sector Restraint Act August, 1983 Of the 26 bills introduced in the Legislature by the provincial government on July 7, 1983, the one that has received the most media attention is Bill 3, the proposed Public Sector Restraint Act. This bill is the central feature of the provincial government’s restraint program, and its purpose is to introduce a mechanism for quickly and substantially reducing the size and complexity of the public sector. Bill 3 raises a number of issues that are of deep concern to the B.C. Civil Liberties Association, and we offer our comments on it here. Termination without cause The bill’s major offending feature is its clause permitting public sector employers, including all government ministries, municipalities, crown corporations, commissions, councils, school boards, hospitals, universities, colleges, libraries, and a host of other provincially appointed agencies, "to terminate the employment of an employee without cause" (our emphasis). The B.C. Civil Liberties Association is vehemently opposed to this provision. First and foremost, we are concerned that the ability to dismiss public sector employees "without cause" will compromise, or be seen to compromise, the independence of the public service in B.C.. The threat of being fired, without having any reasons given, will make public sector employees especially vulnerable to political manipulation and may, therefore, undermine the public’s trust in the public sector as a politically neutral provider of government services. While direct political manipulation of public sector employees is certainly a possible consequence of this proposal, the mere threat of dismissal without cause may produce the same result in subtler, more insidious ways. For example, how will public sector employees react when asked to prepare reports on services or programs, the findings of which could be seen to be critical of government policy? Will public sector employees voice requests for further resources to fulfil a legislative mandate, or will they "sit tight" and "not rock the boat" in the hopes of saving their jobs? Finally, how will police and other enforcers of government laws and regulations react to investigating politicians and senior civil servants? Again, the mere threat of being dismissed without cause may be sufficient in many of these situations for public sector employees to avoid discharging their duties properly. In the case of universities and colleges, whose employees will also be subject to dismissal without cause, we expect that the academic work of these institutions will become suspect in some cases and that their reputations will suffer because of the increased possibility of either indirect or direct political interference in their activities. A related abuse that will be invited by this provision is the disguise of illegitimate reasons for dismissing public sector employees, such as political belief, union activities, disagreement over effecting government policy, or just due to a conflict of personalities--all matters that would not normally, if ever, justify dismissing an employee. Since cause does not have to be shown, no explanation need be given for terminating an employee, and thus an improper reason for dismissal may be more easily hidden. It should also be noted that section 4(7) of the Public Sector Restraint Act states that a person may sue for just compensation as a result of being dismissed, but may not seek reinstatement. So even if a public sector employee felt that he or she was not really dismissed as part of the government’s restraint program, but that Bill 3 was used as an excuse for obtaining dismissal, he or she may find it extremely difficult to seek reinstatement because of this section and the without cause provision. Furthermore, we believe strongly that for members of the public to participate actively in government, respect government regulation and make use of government services, they must be confident that the activities of public servants, who represent their views to elected officials or political appointees, enforce government regulations and make decisions about provision of government services, will not be politically motivated. For the reasons already given, we are concerned that allowing public sector employees to be terminated without cause may evoke a mistrust of public servants which, whether justified in fact or not, would be unhealthy to the democratic functioning of our province. Finally, we note that section 48(2) of the Public Service Act requires that public servants may only be dismissed by a Minister or Deputy Minister with "just cause". While we do not think that this provision rules out undue political interference in the affairs of the public service, it does provide a measure of protection and is a discouragement to this type of manipulation. This protection would be overridden by the "without cause" provision of Bill 3. Nevertheless, we are somewhat encouraged that recently, in response to public criticism of the sort we have expressed here, the government has said that it will drop the provision--although no formal amendment has yet been introduced to the Bill, and more recently the government has begun to defend this provision again. In these circumstances, we are especially concerned that any proposed amendment will not be so vague that it will invite the same sorts of abuses the present provision does. In our opinion, the "just cause" provision of the Public Service Act is justified in the interest of maintaining an independent and politically neutral public service. This principle should not be overridden or compromised. Compensation for terminated employees In its public statements about Bill 3, the provincial government has claimed that one of its aims was to eliminate special privileges that public sector employees apparently held over their private sector counterparts. However, it is our opinion that the provisions of Bill 3 will substantially reduce the opportunities of terminated public sector employees to seek compensation as compared with private sector employees. In this respect, Bill 3 actually goes beyond the government’s stated intention and leaves public sector employees with fewer rights and protections than employees in the private sector. Entitlement to compensation At common law, private sector employees may be terminated without cause as long as reasonable notice is given. If a dismissed employee does not feel reasonable notice has been given, he or she may sue to recover the additional loss. Under Bill 31, public sector employees may be entitled to compensation for being dismissed without cause. However, since the terms of the compensation will be established by regulation at the discretion of Cabinet following passage of the Bill, there is no way to know whether the government will seek to approximate the compensation to which a dismissed employee would be entitled at common law. The government should give a much clearer indication in the legislation of the extent of the compensation it is contemplating, to ensure that it will not act unfairly or arbitrarily once the Bill is enacted. At the very least, the legislation should explicitly state that terminated public sector employees are entitled to "fair" compensation. Negotiated Settlements Although Bill 3 states that terminated public sector employees will be entitled to compensation according to regulation, there is no clear indication whether or how the government intends to negotiate settlements. In our opinion, there ought to be a clear procedure for obtaining compensation outlined in the legislation--not by regulation--that respects the principles of fairness and incorporates due process protections, including the right to appeal. Unless these protections are more explicitly set out in the legislation, there will be no guarantee that the compensatory procedure, which is only vaguely referred to in the proposals, will be fair. Limited right to seek a civil remedy If a dismissed public sector employee does not accept government compensation within 60 days of termination (assuming an offer is made in this period), he or she loses his or her right to seek a civil remedy and must accept the government offer. In other words, a dismissed public sector employee has only 60 days to decide whether he or she would rather seek a civil remedy. This seems to us to be an arbitrarily short period of time to work out complex details that may be involved in deciding compensation due to employees with long service, and whose training is highly specialized. As well, the effective decision-making period may be further reduced if a terminated employee is not made aware immediately after termination of the amount of compensation offered. Unlike their private sector counterparts, dismissed public employees will not be able to accept their employer’s offer of compensation and then seek additional compensation through a civil action, if the final amount offered by their employer is unsatisfactory. Again, this seems to us to be unnecessarily arbitrary and puts the dismissed employee in the difficult position of receiving no compensation while awaiting the outcome of his or her civil action. Right to seek re-instatement At common law, in exceptional circumstances, an employee who has been terminated without cause may gain re-instatement through a civil action. Section 4(7) of Bill 3 eliminates this avenue of redress for dismissed public sector employees. We see no reason why public sector employees should be exempted from seeking re-instatement. We also note that this provision is inconsistent with the government’s apparent intention of placing public sector employees on an unequal footing with private sector employees. Delegation of authority We have noted above where that the policy intentions of the government should be more clearly outlined in the legislation, and not left to be worked out in the regulations. In general, we are disturbed by the extremely broad authority given to Cabinet to establish policy through the drafting of the regulations pursuant to this Bill. A glaring example occurs in the proposal that is vaguely contained in Section 6 to reorganize the senior management of the public service, where no direction is given in the legislation about why this is to be carried out. Public policy matters such as these should be much more clearly defined. We see it as an abuse of legislative process to leave such important matters to the regulations, where there will be no opportunity for public input. We are especially concerned that this lack of public input may mean that the policy that is developed will not result from a thorough consideration of the relevant facts and circumstances.