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HomeMy WebLinkAbout2020-0927.Jordan.2024-08-21 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2020-0927; 2020-1129 UNION# 2019-0510-0008; 2020-0510-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Jordan) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Deborah Leighton Arbitrator FOR THE UNION Robert Healey Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Katie Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARINGS July 22, 2021, April 26, July 14, 2022, January 24, April 20, November 23, 2023 - 2 - Decision INTRODUCTION [1] There are two grievances before me. The first is a competition grievance filed on September 23, 2019, alleging that the ministry breached Articles 2, 3, 6 and 18 of the collective agreement when the grievor was denied a Court and Client Representative (CCR) position. In the second, filed on July 21, 2020, the union claims that the ministry violated Articles 2, 9, and 3, alleging that the ministry has discriminated against the grievor because of her union activity. [2] There are two preliminary motions to be decided. In the first, it is the ministry’s position that the particulars provided for the competition grievance are insufficient and that certain paragraphs constitute an expansion of the grievance and should be struck. In the second motion, the ministry claims that some of the particulars have improperly expanded the scope of the harassment and discrimination grievance and therefore must be struck. If I agree that these particulars should be struck, the ministry’s position is that I must dismiss the grievance for failure to provide particulars capable of proving a prima facie case. Even if the decision is not to strike these particulars, the ministry maintains that there is no prima facie case. [3] The union opposes the motions alleging both irregularities in the competition process and discrimination based on the grievor’s score sheets for the competition. It is the union’s position that the competition was flawed and unfair and the grievor was denied the position because of her union activity. The position on the second motion is that the particulars provided do not expand the scope of the grievance and therefore should not be struck. These particulars support a finding of a prima facie case. [4] The motions proceeded based on the written grievances, the particulars, and submissions on the law. No evidence was called. Initially the parties had agreed to argue a motion by the union for production of certain documents, including the entire competition file. However, by agreement, this motion has been held in abeyance pending the outcome of the motions before me here. [5] Some background on the grievor’s work history is necessary. The grievor was hired in 2013 as regular part-time CCR. In 2015, the grievor was successful in a job competition for a one-year contract as a full-time CCR. This contract was renewed four times, without any initiative of the grievor. In 2017 she was assigned as a group leader within the classification for six weeks. - 3 - [6] In 2019, the grievor applied to an open job competition for a permanent CCR position. There were eight permanent vacancies available and 20 temporary positions. There were 159 applicants and of those, 30 scored 80% or higher in the competition. The grievor scored 58%. [7] The grievor has a history of union activity. She became a steward in her local in 2015. She acted as a vice-president for some time in addition to her steward duties. In 2018 she was elected as president of her local. The Competition Grievance [8] Counsel for the ministry argued that some of the particulars provided for the competition grievance were inadequate and sought an order for more detail from the union. The ministry also argued that the competition grievance did not allege specifically that the competition was not fair, and that the union cannot be permitted to provide particulars to support an unfair process. By providing particulars that for example, the score sheets for the grievor suggest improper consultation by the panel of interviewers, that the grievor was denied special competition coaching that other candidates received, and that the employer discriminated against the grievor because of her union activity amounts to an expansion of the scope of the grievance. [9] The union submits that the particulars do not expand the competition grievance. Particulars that suggest an unfair process are an inherent part of this complaint. Counsel argued that for a senior person working in a position not to be successful is presumptively suspect, given her history. The grievor held CCR position for years and trained people to do this work. The union argues it does not seem reasonable that she scored so low in an open competition, where she competed against people that had never done the job. The union does not know why the grievor was not successful in the job competition but from the limited disclosure, union counsel submitted as an example, it is not clear whether the employer considered the grievor’s work history in addition to the competition results, as required by the Board’s jurisprudence. [10] In response to the position that the particulars that suggest an unfair competition should be struck, counsel also argued it would be unfair to the union to limit the scope of the potential evidence by striking these particulars before the hearing has even started. To the ministry’s argument that the particulars are not detailed enough, the union submits that without further disclosure of the competition file it could not be more precise. - 4 - [11] The purpose of disclosure is to promote expeditious and efficient arbitration. To that end, the parties here agreed to the following provisions in the collective agreement. 22.14.4 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution processes. 22.14.5 The parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure. Both parties are under an obligation to share pertinent information. It does not have to be through particulars. It is clear from Article 22.14.4 that the employer is also required to give full disclosure of “facts relied upon by management in a decision that is subject to a grievance,” in this case it would include the competition file. [12] Having carefully reviewed the particulars provided by the union, I am satisfied that they meet the purpose of the collective agreement language. I am not prepared to order further details. While not perfect, the information provided by the union is enough to prevent delay and surprises at the hearing on the merits of the competition grievance. Moreover, I am cognizant of the fact that the employer has not provided full disclosure, including the competition file, which has potentially put the union at a disadvantage in providing more detailed particulars. A competition grievance is like a discharge or discipline grievance, in that the reasons for management’s decision are within its understanding. Therefore, it has an obligation under the collective agreement to provide the union with the facts it relied on in making the decisions in the competition grievance. [13] The second part of the Ministry’s motion is to strike certain paragraphs that suggest an unfair competition process, because it is an improper expansion of the grievance. The ministry’s objection here is that the particulars provided by the union which refer to unfairness and discrimination against the grievor because of her union activity result in an expansion of the original grievance. Counsel for the ministry cited OPSEU (Jones et al) and Ministry of Labour, GSB 2006-1204 (2010) as the Board’s leading case on the issue of when a grievance has been expanded after its filing. - 5 - [14] As Arbitrator Abramsky held in Jones, the relevant legal principles at the Board are well established. The leading case is the well-known Court of Appeal decision, Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 8 O.R. (2d) 103. No doubt it is the practice that grievances be submitted in writing and that the dispute be clearly stated, but these cases should not be won or lost on the technicality of form, rather than on the merits as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch. … Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions. Arbitrator Abramsky goes on to note that this case was relied upon by the Supreme Court of Canada in Parry Sound District Social Services Administration Board and OPSEU, Local 324 (2003) 2 SCR 157. Here, the Supreme Court held that there is a “general consensus among arbitrators that, to the greatest extent possible, a grievance should not be one or lost on the technicality of form, but on its merits.” Arbitrator Abramsky also cites the test articulated in Electrohome Ltd. and I.B.E.W., Local 2345 (1984) 16 L.A.C. (3d) 78 (Raynor): If the issue raised at the arbitration hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction based on a technical objection to the scope of the original grievance. To do so would deny the value of flexibility and would be to compel the parties to draft their grievances with the nicety of pleadings. On the other hand, if the issue raised by one of the parties is not inherent in the original grievance, for the board to permit the party to raise that issue as part of the original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance. (emphasis added) Arbitrator Abramsky concludes her review of the cases as follows: Thus, in determining whether an issue raised by a party at arbitration is properly before a board of arbitration, the board determines whether, on a liberal reading of the grievance, the issue in dispute may be viewed as part of or inherent in the original grievance or is essentially a new grievance. If the issue was part of or inherent in the original grievance, the lack of precision in the written grievance should not be a technical bar to a board of arbitration’s jurisdiction. - 6 - I agree with and adopt this analysis. [15] Counsel for the ministry then outlined the factors to consider in determining whether an issue raised at the arbitration is inherent to the original grievance or in effect a new grievance, citing Arbitrator Lynk’s decision in OPSEU (Labanowicz) and Ministry of Transportation, GSB No. 2012-3224: When faced with this issue, an arbitrator’s considerations would include some or all of the following: (i) a review of the language of the grievance, (ii) a review of the language of the collective agreement; (iii) a consideration of any other admissible evidence that would cast light on the parties’ understanding of the issues raised by the grievance, such as the scope of the discussions and exchanges during the grievance process; (iv) a review of the remedy sought; (v) an assessment of the time frame involved; and (vi) the degree of prejudice, if any, suffered by the employer. (para. 22) Applying the factors noted above is the next step of the analysis. A review of the language of the grievance indicates that the grievor complains about a violation of her rights, specifically citing Articles 2, 3, 6 and 18 in filling the position of CCR. The grievance alleges that there was no consideration of seniority where the qualifications and ability were equal, but it also notes a further allegation of discrimination against the grievor by management's failure to follow CSD Best Practices on Hiring. The remedy sought, inter alia, is for the grievor to be awarded one of the positions available in the competition. This is standard wording for a competition grievance. And allegations that the competition was not fair are inherent to most competition grievances. As Arbitrator Raynor held in Electrohome, supra, I must not deny jurisdiction here on a technical objection to the language of the grievance which did not specifically state that the competition was unfair. [16] I need to be clear here, I am of the view that allegations of unfairness are inherent to a job competition grievance in most cases. But another factor to consider is the potential prejudice to the employer of allowing the allegations of unfairness if this issue is not raised until the first day of arbitration. First point of note is that there is no evidence before me of prejudice to the employer if these issues are permitted to proceed. The second is that the issue of unfairness in the process and discrimination because of union activity as affecting the employer’s decision not to award the grievor a position, is not coming at the arbitration hearing, it is at the earliest point after referral to arbitration. It is at this point that the parties are obligated to disclose information about the case they intend to make at arbitration. - 7 - [17] Consequently, I must conclude that the union has not expanded or added a new grievance here, the allegations of unfairness are inherent to this competition grievance, and it is reasonable in all the circumstances not to strike these particulars. This motion is denied. The Discrimination Grievance [18] The ministry also argues that the particulars provided by the union on the second grievance before me expand the scope of the matter and should be struck. Even, if the particulars are not found to expand the original grievance, I am urged to dismiss the grievance for failure to support a prima facie case. [19] Counsel argued that the second grievance is a complaint about inequitable distribution of hours in the context of seniority, and only this issue. So, particulars that allege that the employer engaged in a course of conduct, which disadvantaged or discriminated against the grievor in seeking opportunities for advancement are beyond the scope of the grievance and must be struck. [20] The union submits that the particulars do support the grievance which alleges that the employer has discriminated against the grievor because of her union activity, and this has had a significant effect on her advancement in the ministry. Further, the particulars should not be struck at this point because it would deny the evidence behind the particulars without the context of the whole case. [21] As in the first motion, the issue is whether the particulars provided by the union expand the scope of the original grievance, so as to raise a completely new complaint. As noted earlier, I must take a liberal view in interpreting the language of the grievance because it should not be dismissed on a technicality of form and if reasonable, should be heard on its merits. [22] The starting point of the analysis here is with the grievance itself. The statement of grievance provides as follows: I hereby grieve Article 2 (management rights); Article 9 (health and safety); Article 3 (harassment and discrimination); The remedy sought is as follows: - The employer to cease and desist its actions immediately. - 8 - - A declaration that the employer breached the collective agreement by engaging in discriminatory behaviors and abusing management rights. - To be made whole and paid any applicable loss (compensation and punitive damages.) - Any other redress to the satisfaction of the grievor or redress an arbitrator deems fit to award. What is somewhat unusual here is that the form also includes a demand for disclosure in the statement of grievance. It states as follows: FULL DISCLOSURE IS HEREBY REQUIRED With respect to process and policy's for determine distribution of hours, and additionally Full disclosure on amount of hours worked to date by any staff with less seniority than grievor active in any of the above mentioned role and explanation as to why hours were not offered to grievor. (sic) [23] It is this demand for disclosure that leads the ministry to argue that the grievance is only about the distribution of hours in the context of seniority. With respect, this interpretation is too narrow. The whole grievance form must be considered. Given a specific reference to Articles 2, 3, and 9 and the remedy sought, which seeks a declaration that “management breached the collective agreement by engaging in discriminatory behaviors,” it is clear that this grievance alleges that management engaged in discrimination against the grievor, and she suffered loss as a result. Thus, the particulars provided to the ministry that relate to the union’s theory of the case here are proper. Whether the union can prove this, is a matter for the hearing on the merits of the grievance. [24] To the extent that the ministry seeks to strike particulars that predate the grievance, I am of the view that these decisions are better made within the context of the evidence on the merits. This part of the motion is thus premature. See Ministry of the Attorney General and OPSEU (John) 2023 GSB 2020-0927 and 2020-1129, and cases cited therein. [25] Counsel for the ministry also argued that even if the particulars are not struck, they do not support a prima facie case. The parties agree that the principles of law applicable to a motion alleging that particulars fail to support a prima facie case are well established. In Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB), Arbitrator Anderson held: - 9 - In order to succeed, the moving party, in this case the Ministry, must establish that the "facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged". After reviewing the case law Arbitrator Anderson went on to explain the test to be applied: The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words "capable of supporting the violation" are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party's theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party's theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed. (para.6) In the Ministry of Health and OPSEU (Grievor), 2019 CanLII 78764 (ON GSB) Arbitrator Anderson addressed the test for satisfying a prima facie case of discrimination. While the burden of proof remains on the claimant throughout, because the reasons for the treatment lie within the responding employer’s knowledge, relatively little affirmative evidence is required to establish a prima facie case of discrimination, which gives rise to an “evidential burden” on the employer to provide a response justifying its actions. (Full cite omitted) Thus, if a grievor is a member of a protected group, for example gender or race or as in the case before me, a union officer, and describes behaviour of an adverse event that may be inferred to be because of that status, a prima facie case is satisfied. [26] The theory of the union’s case is that the employer has engaged in a pattern of conduct which adversely affected the grievor’s opportunities for advancement because of her union activities. Having reviewed the particulars provided by the union against this theory, I am persuaded that they are capable of supporting the - 10 - alleged violations of the collective agreement. In one example, the particulars describe a meeting that the grievor attended as a union officer with her supervisor in attendance. The grievor raised the issue of CCR positions, and her supervisor indicated that she believed the grievor was using her union office for personal reasons. The particulars further indicate that the relationship between the grievor and her supervisor deteriorated after that meeting. Examples of the deterioration are included in the particulars. The reasons for this treatment lie within the ministry’s knowledge. Since I am of the view that these particulars are capable of supporting the allegations, if proven as true, I will not comment further on them. The motion to dismiss this grievance for failure to provide particulars that support a prima facie is denied. [27] Consequently, having carefully considered the submissions of the parties, I hereby dismiss the ministry’s motions. The hearing shall continue on the scheduled dates agreed to by the parties. Dated at Toronto, Ontario this 21st day of August 2024. “Deborah Leighton” Deborah Leighton, Arbitrator