Letter to DM: Concerning Required Authorities

31 July 2015

 

Mr. John Forster
Deputy Minister
Department of National Defence
National Defence Headquarters
Major-General George R. Pearkes Building
13th floor, North Tower
101 Colonel By Drive
Ottawa, Ontario K1A 0K2

 

Dear Mr. Forster,

This is further to my letter of 27 May 2015 and our meeting of 8 July 2015 regarding the outstanding authorities that I require to be fully functional in my role as DND-CF Ombudsman.

Since the office of the DND-CF Ombudsman falls within the legislative and policy framework of the Department of National Defence (DND) certain authorities must be delegated by the deputy head.  The most recent instrument of delegation dated

26 May 2015 has the effect of changing previously held delegations and results in some operational challenges for my office. More particularly, the reinstatement of these authorities is important to preserve the integrity of the Ombudsman’s leadership within his own organization, to respect the independent nature of the Ombudsman’s operations, and to avoid potential conflicts of interest by involvement of the Department in Ombudsman operational files.

For ease of reference, I have outlined the issues related to these outstanding authorities and request that action be taken to resolves each of these matters within the shortest possible delay. My office will be available to facilitate as required.

Reinstatement of third level grievance authority

It was agreed in principle that the Ombudsman will have third level grievance authority for grievances under the Public Service Labour Relations Act (PSLRA) subject to a limitation in cases where the Ombudsman’s objectivity might be compromised. I propose reinstatement of this authority in the delegation instrument with the addition of the following note: “Where a grievance is filed by an employee reporting to the Ombudsman, naming the Ombudsman, or putting the Ombudsman in a real or perceived conflict of interest position, then the third level authority will default to the Director General Workplace Management.” This wording will ensure the appropriate exercise of this delegated authority by the Ombudsman without fettered the Ombudsman’s leadership within his own organization.

Reinstatement of the authorities re human rights

The delegation instrument of 26 May 2015 does not list the office of the Ombudsman as a delegate with authority to address human rights issues arising within its own organization. The silence with respect to the office of the Ombudsman has the effect of removing a previously held delegation in matters of human rights. It was agreed that the authorities to respond to Canadian Human Rights Commission (CHRC) complaints, negotiate settlements and represent the Office of the Ombudsman before the Canadian Human Rights Tribunal (CHRT) should be reinstated with the authority of the Ombudsman to sub-delegate.

Establishment of an Informal Conflict Management System (ICMS)

Pursuant to the PSLRA the deputy head must establish an informal conflict management system (ICMS) in consultation with the bargaining agents. In order to maintain independence, in 2005 the office of the Ombudsman entered into an MOU with the Dispute Resolution Services unit (DRS) of the Department of Justice (DoJ) to provide an alternative mechanism to the services offered by the DND. A subsequent restructuring and dissolution of the DRS unit at DoJ has resulted in the need to renegotiate with a third party independent service provider.

Justice ICMS is prepared to provide conflict resolution services to the office of the Ombudsman on an ‘as needed basis’. We consulted with the bargaining agents at the last Union Management Consultations Committee (UMCC) and have agreement that outsourcing for conflict resolution services is a suitable course of action.  We will confirm the details at the next formal meeting of the UMCC and ensure that the minutes reflect the agreement.

Meanwhile, I am attaching the draft MOU that has been negotiated with the Justice ICMS for your information.

PSDPA

We also discussed the governance implications of the current departmental designations under the Public Servants Disclosure Protection Act. Unlike the previously mentioned matters, the appropriate resolution for the PSDPA is more complex, involving numerous legislative instruments and possibly multiple stakeholders. I will get back to you with a proposal on this matter that is consistent with the legislative scheme of the PSDPA, maintains the rights of employees, avoids potential for conflict of interest, supports the operational independence of the Ombudsman and respects your role as deputy head.

The complexity of the administrative and legislative framework within which our respective organizations operate has resulted in communication challenges for previous administrations. I wish to express my appreciation of your collaborative approach and look forward to productive interaction.

Sincerely,

 

Gary Walbourne
Ombudsman

 

 

Attachments (2):

(1)  MOU for the Provision of Conflict Management and Training Services: DND/CF Ombudsman’s Office and Department of Justice

(2)  Informal Conflict Management System Policy – Department of Justice

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