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     January 2013        
                 
 
 

Released on January 01, 2013, 1:00 AM EDT 
Tag #: 650

Duo: Fowke and Benkovich (from left)

Double Crisis in City’s Water and Wastewater Division
Divisional director facing allegations of human rights violations and abuse of power
Large amount of tax dollars wasted for legal fees to cover divisional director’s misconduct

It was reported that 5 human rights complaints against the divisional director, Nick Benkovich were filed at the Human Rights Tribunal of Ontario during last 3 year period. The water and wastewater division consists of only 137 employees and it is reported that there have been 329 internal grievances filed against him. A large number of grievances are directly related to abuse of power and workplace harassment. Recently, workplace violence and harassment incidents have drastically increased, with over 200 grievances filled against Nick Benkovich in the last two years.

It has also been reported that all the water operators at Wanapitei water treatment plant have recently filed an additional 36 grievances against him. This catastrophic situation was largely neglected by the Human Resources and Organizational Development Division headed by Kevin Fowke, who did not hesitate to provide legal support to defend the directors’ misconduct at the cost of the tax payers. Kevin Fowke always appeared to side with Benkovich, and provided the means and material support for him to continue his actions against employees.

Employees are seeking another avenue to find a solution for their grievances, evidenced by a growing number of Human Rights complaint against Benkovich. The situation of workplace inequality also resulted in a disproportionately large number of employees in this division going on stress leave compared to other divisions in the city.


There have been allegations that Benkovich has also engaged in some sexual misconduct at workplace. 

Benkovich has not hesitated to utilize police force against employees.  He has continually allowed some of his supervisors to carry on their unquestioning support of Benkovich's actions while harassing any employee who  raises their voice against him. The city’s discipline policy has been effectively utilized to mask his activities against employees, under full cooperation of  Kevin Fowke.

WikiLeaks Sudbury investigative team found that these human rights complaints are not random or isolated incidents. They appear to reflect a clear pattern of an abuse of power and harassment by Nick Benkovich and his supervisors.


Details of Human Rights complaint against Benkovich as follows:

(1) The Human Rights Tribunal of Ontario File #: 2009 –02696-I
Jim Hatton V. Undisclosed
Complaint:
The applicant alleged discrimination and harassment based on disability in the context of employment and also alleged reprisals or threat of reprisals.
Reference:

Date:
November 9, 2009, File Number: 2009-02696-I, Citation: 2009 HRTO 1859
Date: December 16, 2009, File Number: 2009-02696-I, Citation: 2009 HRTO 2211
Date: June 11, 2010, File Number: 2009-02696-I, Citation: 2010 HRTO 1335
Date: September 30, 2010, File Number: 2009-02696-I, Citation: 2010 HRTO 2001
Who Involved:
Nick Benkovich, Director, Water/Wastewater Services.
Gary Comin, Supervisor 111, Water Plants

(2) The Human Rights Tribunal of Ontario File #: 2009-02696-I
Matthew Barton v. Nick Benkovich et. al.
Complaint:
The Applicant alleged discrimination and harassment in the workplace based on membership in a vocational association and employment on the basis of marital status, association and reprisal.  

(3) The Human Rights Tribunal of Ontario File #: 2010-06103-I
Shelley Reid v. Nick Benkovich et. al.
Complaint:
The Applicant alleged discrimination and harassment in the workplace on the basis of several grounds including sex and marital status.
Who Involved:
Karen Matthies, Human Resources Coordinator.

(4) The Human Rights Tribunal of Ontario File #:  2012-11186-I
NH v. Nick Benkovich et. al.
Complaint:
The applicant alleged discrimination with respect to employment on the basis of race, colour, ancestry, ethnic origin, place of origin and and reprisal.
Who Involved:
Kevin Fowke, Director, Human Resources and Organizational Development

(5) The Human Rights Tribunal of Ontario File #: 2012-11792-I
Kathleen  Gillis v. Nick Benkovich et. al.
Complaint:
The applicant alleged discrimination and harassment in the workplace based on gender, including sexual harassment.
Who Involved:
Kevin Fowke, Director, Human Resources and Organizational Development
Karen Matthies, Human Resources Coordinator

Related Documents:
Date: January 10, 2011 File Number: 2010-06103-I Citation: 2011 HRTO 76
Indexed as: Barton v. Sudbury (City)

Date: February 9, 2011 File Number: 2010-06103-I Citation: 2001 HRTO 281
Indexed as: Barton v. Sudbury (City)

Date: January 7, 2011 File Number: 2010-06936-I Citation: 2011 HRTO 52
Indexed as: Reid v. Sudbury (City)

Date: July 31, 2012  File Number: 2012-11186-I  Citation: 2012 HRTO 1491
Indexed as: Hewage v. Sudbury (City)

Date:
December 3, 2012  File Number: 2012-11186-I  Citation: 2012 HRTO 2249
Indexed as: Hewage v. Sudbury (City)

Date:
October 15, 2012  File Number: 2012-11792-I  Citation: 2012 HRTO 1956
Indexed as: Gillis v. Greater Sudbury (City)

 --------------------------------End

Editorial:
Released on January 01, 2013, 1:00 AM EDTon 

The original article initially appeared on Journal of Public Administration Review, 69 (1), 92–103. Excerpts from the article as follows.   

Employment Laws and the Public Sector Employer: Lessons to Be Learned from a Review of Lawsuits Filed against Local Governments

Numerous aspects of the day-to-day operations of local governments are subject to legal scrutiny; public managers and officials must be keenly aware of the legal rights and protections that extend to both citizens and employees of local governments. This research evaluates several areas of concern in the human resource administration of municipal governments with respect to the management of public employees within the protections set forth by the legislative and judicial branches of the federal government. Sample cases filed from 2000 to 2007 against local governments in Tennessee involving Title VII violations, retaliation, hostile work environment, Family and Medical Leave Act violations, and other employee grievances are detailed. The intent of this analysis is to highlight many of the laws and legal principles that relate to municipal human resources management and to provide scholars and practitioners with a brief overview of the liabilities that may arise from the employment relationship between local governments and their employees.

This research evaluates several areas of concern in the human resource administration of municipal governments with respect to the management of local government employees within the protections set forth by the legislative and judicial branches of the federal government. It is inevitable that most local governments will experience some form of legal scrutiny regarding their human resource operations. Decisions in recruitment and selection, promotion, discipline, and dismissal often fuel discrimination and other types of lawsuits by disgruntled applicants, current employees, and former employees. In many cases, the nature of the employment relationship and the nature of the employment decision are factors in determining whether a dispute has actual legal merit. An overview of selected laws and legal principles that pertain to the nature of the employment relationship between municipal governments and their employees is included in this analysis. In addition, select laws and legal principles that describe the potential liability for employment discrimination are discussed. Sample cases filed against local governments in Tennessee involving Title VII violations, retaliation, hostile work environment, Family and Medical Leave Act violations, and other employee grievances are detailed in this study to illustrate the liabilities that may arise for municipalities in the employment law arena.

The employment relationship between public sector employees and public entities can be very different from the employment relationship between private sector employees and private entities. Most individuals employed in the private sector are subject to an at-will employment relationship with their organization. Employment at will allows either party to terminate the work relationship at any time. This term is derived from the court decision in Payne v. Western and Atlantic RA Company (82 Tenn. 597 [1884]), which held that an employer in the private sector does not have to provide cause to an employee who is terminated At-will employment often prevents private sector employees from claiming a property right in their positions within the organization. Yet the private employer’s discretion regarding termination is not entirely without limits. Employers may be found liable by the courts in cases in which there may be an implied contract or in which the employer terminates an employee after the individual complains of harassment or accuses the employer of some other form of misconduct involving discrimination or retaliation. However, with at-will employment arrangements, the employee who challenges an arbitrary discharge shoulders the burden of proof in the judicial proceeding; even employees who have legitimate claims may be discouraged from pursuing legal recourse because of the costs, time requirements, and justifications required.

Most public sector employees, however, are privy to a unique set of legal protections guaranteed by several federal and state laws. The Constitution often protects the public sector employee’s rights to freedom of speech and association, privacy, equal protection, and due process, just as it protects these same rights of all citizens; the Supreme Court has continued to rule that public employees have substantive constitutional rights and protections against the actions of government employers. In addition, a civil service employee is considered to have a bona fide property right to his or her position after he or she has progressed beyond the probationary term of employment. Termination of a civil employee by a federal, state, or local government requires just cause that in many cases must be viewed as indisputable if the employee files a wrongful discharge claim against the government employer. At the present time, only a handful of states, including Florida, Georgia, and Texas, have instituted substantial reforms to the civil service system, such as at-will employment relationships that aim to increase executive control over public employees.

Local government administrators must be keenly aware of their current, former, and future employees’ rights and protections in order to safeguard their departments and governments from the liabilities that can arise in the employment law area. This understanding often comes from both theory and practice; however, the field is characterized by constant changes in technology, employment laws and policies, workforce composition, and administrative ethics.

New Public Management, with its emphases on de-bureaucratization, de-centralization, and civil service reform, has attempted to make public sector entities function similar to those in the private sector; however, the implications for human resource management at all levels of government are yet to be fully determined. The debate regarding civil service systems and at-will employment of public employees will continue as more state and local governments choose to declassify many of the traditional job positions of civil servants. At-will employment offers little or no job protection and eliminates the right that civil service employees have to terminate for just cause. The employment laws that have been discussed in this analysis were enacted to protect all classes of employees from discrimination and arbitrary management decisions. Future research is required to objectively evaluate whether New Public Management and its accompanying changes have enhanced public sector employee responsiveness, productivity, and management without precariously altering public sector employer liabilities and public employee protections in the human resource policies and actions of state and local governments.

Editor
WikiLeaks Sudbury
January 01, 2013

Reference:
French, P.E. (2009). Employment Laws and the Public Sector Employer: Lessons to Be Learned from a Review of Lawsuits Filed against Local Governments. Public Administration Review, 69 (1), 92–103.  

Related Document:
Employment Laws and the Public Sector Employer: Lessons to Be Learned from a Review of Lawsuits Filed against Local Governments

 

 


 
             
     

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