HomeMy WebLinkAboutPatterson 12-10-17IN THE MATTER OF AN ARBITRATION
BETWEEN:
KINARK CHILD & FAMILY SERVICES
SYL APPS YOUTH CENTRE
(The "Employer")
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
LOCAL 213
(The "Union")
AND in the matter of the individual grievance of T. Patterson
ARBITRATOR: William A. Marcotte
APPEARANCES:
FOR THE EMPLOYER:
1"s t4lo ;,$ •
M
D. I... Wakely, counsel
J. Dawes, dir., H.R. 8s Develop.
S. Stark, mgr., HRQA & risk mgt.
V. Van Wagner, mgr., res. Units
J. Brewin, counsel
M. Bevan, OPSEU officer
T. Patterson, grievor
and others
Hearings held in Oakville, on December 5, 2011, and, July 10 and September
11, 2012.
I
2
AWARD
In its April 1, 2011 grievance, the Union claims:
the employer is in violation of Article 3, Article 7, Article 17, Article 26
and any other relevant article by providing an unsatisfactory resolve to
my'harassment complaint and forcing me to use up my vacation, sick
and lieu credits while I was absent from work.
By way of remedy, the Union seeks for "...the employer [to] resolve my
harassment complaint in a mutually satisfying manner" and reimbursement of
all vacation, sick and lieu credits and loss of income during the grievor's period
of absence from work.. The Employer position is that there has been no breach
of the collective agreement.
The relevant provisions of the collective agreement under which the grievance
arises are as follows:
7.02 The Employer shall make reasonable provisions for the safety and
health of its Employees during the hours of their employment. It is
agr I eed that both the Employer and the Union shall co-operate to
the fullest extent possible in the prevention of accidents and in the
reasonable promotion of safety and health of all Employees.
On the first day of hearing, December 5, 2011, the parties and the grievor
agreed he would return to work, which he did apparently effective December 11,
2011, 'after 'being off work due to illness since February 13, 2011. His
complaint of harassment, however, remained unresolved and the hearing
continued on July 10 and September 11, 2012.
The Employer's Syl Apps Centre facility is a residential setting for youth who
have experienced various difficulties and unfortunate circumstances. Staff are
Kinark Child Services & Family Services and OPSEU, Local 213; Patterson FINAL
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required
to work
24 / 7 / 365. The grievor
began working for
the
Employer in
2001 as
a Child
Youth Worker ( "CYW ")
and was assigned
to a
"cottage" or
"unit ". In and around 2006, he began working in the position of Volunteer Co-
ordinator /Recreational Officer, a dual assignment by 2007. In August, 2010
the Employer experienced a shortage of staff and a number of employees were
transferred to other assignments. The grievor was transferred to work in a
clients' cottage, or unit, unit #5. When so assigned, his schedule changed and
along with that, his hours of work were now tracked by the "Legiant" system, a
different system from the one he had used in his previous position.
On August 27, 2010, the grievor submitted his work schedule for the work
weeks beginning Sept 3 - 10, 2010 until week 7, ending October 21, 2010, to
Mr. Paul Bottos, the scheduling coordinator. Mr. Bottos accepted the schedule,
"it works ", save for one change to September 6, 2010. On August 30, 2010, Mr.
Bottos informed the grievor as follows, have made the necessary changes to
the rosters. You have to submit those Lieu days in Legiant for me or your
supervisor to approve in the system. You will be working out of unit 5."
In an October 8, 2010 e -mail from Ms. Vivian Van Wagner, she informed the
grievor and Mr. Brian Vaillancourt (who had also been in the recreational
position with the grievor) they would continue in their new positions "through
November" 2010, or until "the situation improves" allowing them to return to
their previous positions. She also stated: "I would propose you [i.e., the grievor
and Mr. Vaillancourt and supervisory personnel - Paul Bottos, Mr. Ed Sutch,
and, Michelle SerenA] - work out a schedule that works for all of you to allow
you both [grievor and Mr. Vaillancourt] to plan your lives." In an e -mail dated
October 21, 2010, the grievor sent Mr. Bottos his work schedule from November
8th to December 2nd, 2010, inclusive. Mr. Bottos replied, noting that the grievor
had not included his schedule from October 22 to November 7, 2010 inclusive.
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The grievor responded with a schedule from October 22nd until only November
3rd.
In an e-mail dated November 18, 2010, Mr. Ed Sutch, the program coordinator
and recreation supervisor, i.e., the grievor's supervisor for timekeeping
purposes even though the grievor had been assigned to unit 5, informed the
grievor, asfollows:
Again your time card was messed up. You only.had 68 hours punched
in. I have fixed'it for now Tim, but we have to figure out something. You
haVe to come to work to get a full pay. Yes Tim, I do have the day you
were at team meeting. The hand scanner is working also. We need to
figure something out.
Apparently, there was a problem between the grievor's old system of accounting
for his hours and tracking those under the -Legiant system. Also, Mr. Sutch
had replaced Mr. Bottos as the supervisor responsible for the grievor's
timekeeping.
In an e-mail to Mr. Sutch the next day, November 19, 2010, the grievor wrote,
"Hey Eddie. I had'a 8 hour sick day? My punches have been working? Don't
understand. We can chat next week. Have a great day." On that same day,
Mr. Sutch replied, "Tim there was only 62 hours on your time card."
An e-mail from Mr. Sutch to the grievor of November 30, 2010 again addresses
discrepancies in the grievor's recorded hours of work:
Hi Tim
Tried to update your hours again and it does not make sense to me.
Wondering if you can help me out here? These are the dates Nov 19 (8
hours worked), (20th, 21, of fl, 22, 23, 24 you worked 8 hours. Then you
took another weekend, 25, 26, 27, 28, off. You worked the 29th (8 hours).
The grand total of 40 hours in two weeks so far. With 2 days left at 8
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hours is 56 hours in total for a two week period. Were [sic] would you
like me to take the time from Tim? Wow I hope this makes sense.
That same day, the grievor informed Mr. Sutch, as follows, as to hours he had
worked: "November 19th, 7 — 3; Nov. 22nd, 11-7, [Nov] 23rd, 7-3." Mr. Sutch
replied that same day; "Sorry there Tim, I don't have punches for some of those
days. Need to know what you want to do*" Later that evening, he again e-
mailed the grievor: "the problem is the times that are in legiant do not go with
the times you are signing in. It has got your whole time sheet messed up. Tim
I will figure something out." The grievor's response of December 4, 2010 is as
follows: "Thanks. Maybe we can chat at some point? Chiser [i.e., the grievor's
nickname]. p.s. Great game Thurs. night."
The problem that developed with the changeover to the Legiant system
continued despite both the grievor's and Mr. Sutch's effort to rectify the
problem. It would seem that the grievor's recording of work hours remained
problematic for Mr. Sutch. The grievor met with Ms. Van Wagner on December
9, 2010, and followed up with an e-mail of that date:
This has been ongoing for no apparent reason other than Ed [Sutch] is
unable to figure out the time card issues/the legiant. Understandably
the last 3 months... however when a question to ask [sic]. I gave hours to
Paul [Bottos] for my time in cottage #5. Worked my all shifts I handed
Paul. Punched in, Honest. Please see emails forwarded. Paul Bottos
aware. I have tried on numerous occasions with no obvious luck. This is
not healthy. I chatted with Paul Thibideau, yesterday and asked him if
he wouldn't mind being my supervisor and doing my time card. He
understands. I work hard and help out where ever. But most of all come
to work. I punch in like everyone else and do my best. Thanks, Tim.
In regard to the . grievor's request to be supervised by Mr. Thibideau, in mid-
April 2010 Mr. Sutch, who the grievor had worked with as co-workers, was
made the grievor's supervisor. Despite the friendly tones of the numerous e-
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mails
before me between
the grievor and Mr. Sutch, the
grievor's
evidence is
there
had "always been
animosity ... his dislike towards me" from
the outset.
Then, when Mr. Sutch was promoted to supervisor, "With [his] added power and
responsibility, the relationship became worse." One example the grievor offered
was that, while other supervisory personnel had sent him his work rosters, as
program co- ordinator (before he became a supervisor), Mr. Sutch did not send
them to the grievor, rather, he had to directly request them. In specific regard
to the time keeping problem, the grievor said Mr. Sutch, "accused [me] of
coming in late and not coming into work ... issues with the time cards and
Legiant system," and referred to the above e -mails between them. When the
grievor would approach Mr. Sutch about the problem, "[He] told me I was the
problem" concerning the grievor's method of recording his work hours. The
grievor said his supervisor in Unit #5, Michele Serena, had no concerns about
this work hours but did not know if she had a copy of his work schedule.
The grievor mentioned a difficulty with Mr. Sutch concerning his request for
summer vacation in 2010. Mr. Sutch had denied the request and the grievor
said it was only due to the intervention of his Union that "a solution was
worked out." Mr. Sutch had explained his denial in stating that between the
grievor and Mr. Vaillancourt, one of them had to be available for recreational
purposes, i.e., an incident prior to the grievor's transfer to Unit #5 and the
changeover in the timekeeping system. The grievor did not know what vacation
time Mr. Vaillancourt had requested or if the request had been made before his.
The grievor also said Mr. Sutch denied his request for 4 hours off on Christmas
Eve and for the Nevi Years' holiday, explaining that, "We needed recreation in
the building." Previously, his supervisor had been flexible about such requests,
although there had to be a recreational program in place at those times. Mr.
Vaillancourt did' not work those times when the grievor was scheduled. The
grievor said he felt he was being "unfairly treated" and believed there were
"rules for some people and rules for others."
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The grievor also referred to an incident in, he believes, January 2010, when, in
bringing a group of clients to use the gym, another group from outside the
facility was using it. It is not uncommon for outside groups to use the gym,
however, the grievor was not informed on this occasion. The responsibility to
inform him lies with a program coordinator, on that occasion, Mr. Sutch.
The grievor met with Ms. Van Wagner, he said, on the advice of Mr. Bottos who
indicated that if he and Mr. Sutch could not resolve the work-hours accounting
problem, ,he should discuss the matter with Ms. Van Wagner. At the meeting
on December 9, 2010, Ms. Van Wagner told the grievor she would "look into the
situation" and he provided her with some of the above referred to e-mails, "to
show he was harassing me."
Sometime in mid-January, 2011, Ms,. Van Wagner arranged an investigation
into the grievor's complaints of harassment by Mr. Sutch. Apparently, Mr.
Sutch and Mr. Bottos, as well as the grievor, were interviewed by either Ms.
Dawes, the director of human resources and/or Ms. Van Wagner. While the
grievor testified it was "a few weeks" before he was informed of the results of the
investigation, Ms. Dawes sent him 'an e-mail dated January 21, 2011, as
follows:
Vivian and I both appreciate that you are experiencing a difficult situation
that is impacting on you personally and that it was only with
considerable forethought that you determined that you needed to bring
this formally t6 our attention. We did have our discussion yesterday and
we have determined that, while you may be experiencing a difficult
working relationship, there is no intended malevolence on your
supervisor's part. As you are probably aware by now, we have
reimbursed to any accruals that you might have used in connection with
this complaint when you first brought it to Vivian's attention in
December. As well, Vivian will be discussing the operational possibilities
and implications of addressing your concerns with Carolyne Hooper and
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she will report back to you on the outcome of those discussions. In the
meantime, Vivian and I agree that any timecard discrepancies that you
may experience can be and should be taken directly to Paul Bottos who
will investigate your concern o your behalf.
I hope that this helps you, but if you have any concerns, please let me
know. Knowing that it was not easy to undertake this action, I want you
to know that I am appreciative that you did.
The grievor said he disagreed there had been no "intended malevolence" on the
part of Mr. Sutch and, in reading this e-mail, he felt "angry, betrayed, upset
and disheartened." His January 25, 2011 e-mail to Ms. Van Wagner is as
follows:
Good afternoon all
I agree this has been a difficult situation. It would be for anyone!
I have tried to make the best of the situation.
Ed in refusing to work out a problem that he was having with the legiant
system (Dec 9th) that was clearly an issue for him for 3 long
months ... while I was in cottage #5 and was frustrating for both parties
(as discussed that morning in December). Emailing me and telling me ... I
have to come into work for 80 firs in order to get paid for 80 firs after 10
excellent years of attendence [sic] ... and me telling him I have been
coming into work???? ...didn't make any sense.... Was very, very poor.!!!
And then continually telling me he can't keep covering it up ... It was as
good as calling me a thief and a liar in not believing me and then not
helping/going to Paul. B. to work it out???? This kind of support nobody
needs. Nobody should have to go through that especially after I had told
him numerous times in that period that their [sic] must be a clear
problem with the legiant. Telling me that I was the problem... wasn't the
answer I was looking or. It wasn't a easy thing to do bringing it forward.
The hardest thing probably.... I have ever had to do.
You folks.... relaying to me that the situation is of a "non intended
malevolence nature" does not change the fact that it clearly has occurred.
My* hope is to have some answers as to why???? And a suitable resolution
(as it has now been a number days) would lesson [sic] the stress and
anxiety I f6el coming into work. Not being able to go to my supervisor
(and feel supported) if I have any issues or requests while working with
this extremely difficult population makes it even harder. Being treated
fairly and included isn't asking too much.
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Supervisors are suppose do due [sic] that!
I appreciate your time.
The grievor testified he believed Mr. Sutch was "covering up" his harassing
behaviour towards him.
The grievor booked off sick on February 13; 2011., He said he did so due to "a
combination of -all the [matters referred to above] and an incident involving the
keys" available to himself, his recreational co-worker-, Mr. Vaillancourt, and, Mr.
Sutch. (It is not certain from the evidence to what extent, if any, the grievor
continued to perform recreational duties when assigned to Unit 5). Of the 3
sets of keys, one has a master key that allows entry to areas inaccessible with
the other 2 sets. Shortly before February 13, 2011, Mr. Vaillancourt told the
grievor "not to sign out his keys, the good set [i.e., with the master key]." The
grievor said no one is assigned a specific set of keys and was of the view that
Mr. Vaillancourt's statement stemmed from an incident in 2009, "where
someone had gone into areas [using the master key] where they shouldn't go.
There was an issue and some harsh feelings and words were exchanged
because Mr. Sutch thought I had said something to management." The
grievor's evidence is that by February 2011 he had a "strained relationship"
with Mr. Vaillancourt who he said was "good friends" with Mr. Sutch. The
grievor believed that by February 13, 2011, "The work environment was very
poisoned," and, in particular, his relationship with Mr. Sutch was "very
unhealthy... [he was] very aggressive, very. demeaning" towards the grievor. The
grievor also referred to an incident in 2007 involving himself and Mr. Sutch
when playing hockey.,
Between January 21 and April 1, 2011, the grievor said he did not meet with
anyone from management following Ms. Dawes January 21, 2011 e-mail. After
the grievor booked off sick on February 13, 2011, Ms. Van Wagner told him that
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in addition to the steps taken by the Employer as identified in Ms. Dawes above
e-mail, if he wanted to, he could transfer to unit 2 from unit 5, i.e., taken out of
his recreational functions (which he apparently retained after being assigned to
unit 5) and Mr. Sutch would not be his supervisor. That response to his
complaints however, "wasn't satisfactory ... I liked my recreation job." The
grievor then filed his grievance before me on April 1, 2011 because, in his view,
the Employer "hadn't done enough" in responding to his complaints.
The grievor, further, said he went off work due to the stress he was
experiencing at work and its effects on his health, worklife and homelife. He
sought medical attention and made use of the Employer's EAR He had
"numerous" phone conversations with Ms. Van Wagner during the period of his
absence. When he returned to work in December, 2011, he was transferred to
Unit #2, under a new supervisor. He has had, however, occasional contacts
with Mr. Sutch which have caused him stress, but has not raised this matter
with the Employer.
The Employer's April 21, 2011 Step 2 reply to the grievance under the signature
of Ms. Vivian Van Wagner, manager of residential units, in part, as follows:
...I find there is no evidence to substantiate your contention that you
were harassed by your Supervisor in December of 2010.
I do understand that this is dissatisfying to your and to date has impeded
your return to work. The offer to provide you with mediation as well as a
temporary assignment to a youth worker line in Unit 2 remains.
In its May 3, 2011 Step 3 response, the Employer, under the signature of Ms.
C. Hooper, director of Secure Treatment & Youth Justice, states, in part
relevant for our purposes, as follows:
Kinark Child Services & Family Services and OPSEU, Local 213; Patterson FINAL
Without any admission, regarding the foundation of your complaint, we
are prepared to offer- the following measures as resolution of your
grievance without prejudice or precedent:
1. Reinstatement of credits for 2 weeks of vacation to be taken
between July 1 and December 31, 2011.
2. In recognition of your application for STD and the required waiting
period of 8 days, those 8 days have been and continue to be applied
as sick leave.
3. Should you choose to apply for the current CYW vacancy (which
will- be posted any day now) within the stipulated deadline, and
should you be the most senior candidate, we will suspend the job
interview and offer you this position.
4. In addition, we would like to acknowledge our miscommunication
which contributed to a delay in processing your complaint.
At the conclusion of the grievor's testimony in examination-in-chief, the
Employer moved a motion of non-suit. After discussion, the Union did not
require the Employer to be put to its election for reason that, should the motion
succeed, it would end the hearing which would otherwise continue over a
number of days of hearing. The Union submitted that in proceeding in this
fashion, the parties' interests in efficient resolution of a grievance may be met.
The Employer argued that the allegations of harassment in the grievance are of
a nature to be dealt with under the common law. The Employer submitted that
there was, no doubt, a timekeeping issue when the grievor, beginning in August
or September, 2010, switched from one timekeeping system to another, the
Legiant system. There is no suggestion the grievor's transfer was not for proper
organizational reasons. While Mr. Sutch was no longer the grievor's supervisor,
as program coordinator he was responsible for seeing the grievor was properly
accredited his hours of work and paid for them. Different from the grievor's
previous timekeeping procedure, the Legiant system is predicated on a schedule
entered into it. This changeover gave rise to confusion in the grievor's case.
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While those involved were aware of the confusion, and made efforts towards
reconciling the two systems, even allowing for that, there was work time for the
grievor not accounted, for, and Mr. Sutch was struggling with that
circumstance. In his communications with the grievor about the matter, they
reflect a temperate tone and he turns responsibility for accounting for the hours
over to the grievor, essentially, Your call, tell me what you want to do. There is
nothing in Mr. Sutch's e-mails which ought to cause anyone to have an undue
reaction; he is simply seeking information from the grievor in order to resolve
the issue. If it could be said that Mr. Sutch was being sarcastic or accusatory,
perhaps Mr. Sutch's statement in his November 18, 2010 e-mail to the grievor
might be said to be of such nature viz., "You have to come in to work to get full
pay." Be that as it may, Mr. Sutch's next e-mail of November 30, 2010, reflects,
again, a friendly relationship and, again, leaves it up to the grievor to allocate
his time. In his responses, the grievor, for his part, does not quarrel with the
way Mr. Sutch is attempting to resolve matters. In his viva voce evidence, the
grievor attributed nothing sinister to Mr. Sutch's efforts. The evidence on the
timekeeping issue simply does not reach a level of harassment or reflects a
poisoned work environment.
In regard to the Employer's reactions to the grievor's complaints when so
informed, it responded proportionally and reasonably. Immediately when it was
brought to her attention, Ms. Van Wagner met with the grievor, asked for all his
e-mails related to the timekeeping issue and reviewed them. Ms. Van Wagner
then took it upon herself to have Ms. Dawes conduct a full investigation. In
reporting her results to the grievor, Ms. Dawes acknowledged and appreciated
the grievor's concerns or complaints, determined there was no "intended
malevolence" on the part of Mr. Sutch, reimbursed the grievor his accruals,
and, informed 'him discussions would be held concerning operational
possibilities in order to change the grievor's work environment. While the
grievor may not have liked the Employer's proposed resolution of his concerns,
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he was provided with the opportunity to not be under Mr. Sutch's supervision.
It can hardly be said the Employer did not respond appropriately to, or ignored,
the grievor's complaints. Reasonable people behaving reasonably may have the
honest view that Mr. Sutch was not acting malevolently towards the grievor,
even accepting everything the grievor said is true. In any event, there is no
evidence of distrust of the grievor, rather the evidence is that of a confusing
state of affairs. and in dealing with it for his part, as the program coordinator
Mr. Sutch was responsible for the proper accounting of the grievor's hours of
work, i.e., there was no improper motivation behind Mr. Sutch's requests of the
grievor; the timekeeping matter was a genuine workplace issue.
The Employer argued that no interpretation of the evidence, put at its highest
and reading as much negative inference into it, elevates that evidence to a
finding of workplace harassment and a poisoned environment. Rather,
unfortunately for the grievor, he has a subjective view of his circumstances but
those circumstances, on any objective basis, do not support an allegation of
harassment.
In support of its position on the non-suit motion, the Employer submitted Re
.Government of British Columbia (S, Complainant) and British Columbia
Employees' Union (M, G & Z, Respondents) (1995), 49 L.A. C. (4th) 193 (Laing); Re
Cara Operations Ltd. And Teamsters Chemical, Energy and Allied Workers'
Union, Loc. 647 (Palmieri) (2005), 141 L.A.C. (4th) 266 (Luborsky), and, Re
Ottawa (City) v. Amalgamated Transit Union, Local 279 (Wallis), [2001] O.L.A.A.
No. 154 (Starkman).
The Union argued the grievance complains of the grievor being directly
harassed by Mr. Sutch and indirectly harassed by the Employer in it's failing to
deal with his complaints regarding Mr. Sutch. As a result of the Employer's
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non-suit motion, the issue to be determined is not the validity of the grievor's
complaints, which do not arise under the collective agreement at Article 7 -
Occupational Health and Safety. Rather, it is harassment of the sort which
leads to a breach of Article 7, where the Employer is required to provide a
healthy ad safe workplace. In that regard, in the Occupational Health and
Safety Act, ("OHSA!') workplace harassment is defined in ss. 1(1) as "engaging in
a course of vexations comment or conduct against a worker in a workplace
known or ought reasonably be known to be unwelcome." For purposes of the
motion at hand, it can be accepted the incidents described by the grievor fall,
objectively, within the above definition of harassment. While the Employer
determined that Mr. Sutch's actions toward the grievor did not intend
malevolence, he did conduct himself in a way that might have been
inappropriate. For purposes of the motion, the grievor's account of Mr. Sutch's
conduct towards him objectively demonstrates harassment. While Mr. Sutch
properly questioned the grievor's timekeeping, the core of the problems - which
core pre-dates Mr. Sutch's supervising obligations - was his persistent failure to
meet with the grievor and when they met, Mr. Sutch did not respond to the
issues. Thus, the grievor went directly to Ms. Van Wagner. That is, the
grievor's allegations of harassment must be taken seriously, given all the
evidence of his relationship with Mr. Sutch.
The Union submitted that for all practical purposes, the Employer did nothing
about the grievor's complaints. It offered the grievor to switch units, which the
grievor had not requested, rather, he wanted to continue on his
recreation /volunteer' position. If the supervisor is the problem, the Employer,
as one solution, could have moved him and not have required the grievor to
move from the position he liked working in.
The Union submitted that when the grievor booked off sick, the Employer, given
the grievor's prior record of good attendance, at the least was aware in the
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circumstances that his health difficulties were connected to Mr. Sutch's
conduct towards him. The Employer, however, ought to have responded more
aggressively than it did, given its obligation to provide a safe and healthy work
environment. Instead, it took only half -steps which put them in breach of the
collective agreement at Article 7. The Union argued that the evidence presented
is such that the Employer's motion of non -suit ought to be dismissed and done
so without reasons.
In reply, ,the Employer submitted that at relevant times the grievor was not in
the recreation/ volunteer coordinator position but had been assigned to unit S
and was offered a position in unit 2. The Employer did respond in a serious
fashion to the grievor's allegations and its response was measured, thorough
and reasonable.
The issue to be determined in this award is whether or not the Employer's
motion of non -suit succeeds. The non -suit motion rests on the grounds the
Union has failed to make out a prima facie case of harassment of the grievor,
either directly or indirectly, thus there is insufficient evidence to establish a
case for the Employer to answer. As to the approach taken to the evidence
I
presented when a non -suit motion is made, in Brown and Beatty, Canadian
Labour Arbitration, 4th ed. (Aurora, Ont: Canada Law Book Inc.) the authors
state, relevant for our purposes, at para. 3:2640:
In considering such a motion, the arbitrator must give the most
favourable consideration to the evidence advanced:
"...the tribunal must assume the evidence to be true, must give the most
favourable reading to any ambiguous statements, and must draw
legitimate and reasonable inferences from the evidence."
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[Re Toronto District Board of Education and C.U.P.E., Loc. 4400 (Moore-
Butler), 2008,'168 L.A.C. (4th) 339 (Swan) p. 350]
In applying the above approach to the matter at hand, I assume that all the
grievor's evidence is true and that all the documentary evidence is to be read in
a fashion favourable to the grievor.
The nature of the grievor's complaint is that of harassment. The definition in
the OHSA states that workplace harassment means "vexatious comment or
conduct" (supra). A'mor6 elaborate definition of harassment was adopted by
arbitrator Laborsky in Re Cara Operations, supra, at para. 18, from an award by
arbitrator Shime in Re Toronto Transit Commission and A.T.U. (Stina) (2004),
132 L.A.C. (4th) 225 (p. 241), as follows:
"Harassment includes words, gestures and actions which tend to annoy,
torment, pester, persecute, bother and embarrass another person, as well
as subjecting someone to vexatious attacks, questions, demands or other
unpleasantness. A single act, which . has a harmful effect, may also
constitute harassment.
The above definition of harassment includes the types or sorts of actions on the
part of the alleged harasser stated in a broad manner so as to capture a range
of such actions said to be of a vexatious nature. These actions, i.e., "words or
gesture", are discernible as objective evidence of harassment upon which the
person alleging harassment develops a subjective impression of harassment. In
noting the distinction between objective evidence and subjective impression,
arbitrator Laborsky states, at para. 18, that the above definition "indicates that
an objective standard is to be applied in determining whether workplace abuse
and/or harassment have occurred, as opposed to the subjective impressions of
the alleged victim. This is consistent with the leading decision of the Supreme
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Court of Canada in.Janzen v. Platy Enterprises Ltd., [1989] S.C.R. 1252, D.L.R.
(4th) 352..."
In observing that harassment involves both objective evidence and subjective
impressions, he formulated the following proposition to guide his consideration
of the evidence on the matter of harassment, at para. 20, as follows:
I accordingly adopt the foregoing as authority for the proposition that I
must objectively assess the evidence to determine whether workplace
harassment has, occurred. Consequently, even if the Grievor believed she
was a victim of such harassment, and suffered real medical consequences
as a result, her perceptions and their result are not enough, in
themselves, to support a finding of harassment.
In other words, while an individual's subjective impressions of another's
behaviour or actions lead him or her to conclude harassment has occurred,
that conclusion must be established on the objective evidence concerning the
alleged harasser's conduct. Similarly, in Re British Columbia, supra, arbitrator
Liang states, at p. 244: "Harassment, like beauty, is a subjective notion.
However, harassment must also be viewed objectively." I concur with the above
approach. Thus, in order to establish that harassment has occurred, the
objective evidence must establish, on a prima facie basis, that Mr. Sutch
engaged in conduct which tended to "annoy, torment, pester, persecute, bother
and embarrass [the grievor] as well as subjecting [him] to vexatious attacks,
questions, demands or other unpleasantness", Re Toronto Transit, supra, p.
241. Similarly, the evidence must also establish, on a prima facie basis, that
the Employer also by conduct of the above nature, did harass the grievor.
The evidence is that beginning on November 18, 2010, Mr. Sutch notified the
grievor of a problem with the grievor's time card "again." It would appear that
the changeover to the Legiant system was effective subsequent to the work
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schedule the grievor had previously submitted to Mr. Bottos. Moreover, it
would appear that, Mr. Sutch replaced Mr. Bottos as the supervisor responsible
for the grievor's accounting of his work hours. There is no dispute it was as a
result of the change to the Legiant system that created the difficulties in
reconciling the grievor's hours of work with his attendance at work. Thus, it
cannot be said that Mr. Sutch without cause communicated his concerns to the
grievor. Rather, Mr. Sutch was fulfilling his legitimate responsibilities in his
supervisory position. In attempting to resolve the discrepancies concerning the
grievor's recorded hours of work, Mr. Sutch indicated, in his November 18,
2010, that he and the grievor "need to figure something out" and sought the
grievor's input into the matter, in his November 30, 2010 e-mail: "Were [sic]
would you like me to take the time from Tim?" That is, Mr. Sutch did not
unilaterally decide how to resolve the matter, instead he invited the grievor to
provide him with guidance in order to achieve a resolution, and repeated that
invitation in subsequent e-mails on, that same day. In his last e-mail of
November 30, 2010, Mr. Sutch informed the grievor, "I will figure something
out" and in reply on December 4, 2010, the grievor e-mailed Mr. Sutch, stating,
"Thanks", and signed it with his moniker, "Chiser", and added, "p. s. great game
Thurs night." There are no other e-mails in evidence beyond November 30,
2010, in regard to timekeeping issues involving the grievor and Mr. Sutch nor
does the issue seem to arise as a continuing matter beyond that time.
The above evidence establishes, contrary to the grievor's testimony of covering a
3-month period, that the timekeeping issue centred on the month of November,
2010, and arose from the changeover to the Legiant system and not from Mr.
Sutch becoming the supervisor in charge of the grievor's timekeeping. Aside
from the one remark in Mr. Sutch's November 18, 2010 e-mail to the grievor,
viz., "You have' to come to work to get a full pay", which cannot be
characterized, in my view, as a single act evincing harassment, there is nothing
in Mr. Sutch's November e-mails to the grievor that demonstrates harassment.
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Rather, his e -mail demonstrate that there existed a problem with the grievor's
timekeeping records and, further, invitations to the grievor to provide guidance
or his preferences for resolving the issues.
The grievor, however, testified that prior to Mr. Sutch becoming his supervisor
in April, 2010, there had always been "animosity, dislike" on the part of Mr.
Sutch towards him. If that was the case, the tone of the grievor's e -mails to Mr.
Sutch, e.g., "Hey Eddie,...we can chat next week" with a "smiley face "; signed
"Chiser", and "p. s. where were you last night ? ", hardly speaks to a dislike
towards the grievor, as does the grievor's December 4, 2010 e -mail to Mr.
Sutch: "Hi Ed... Maybe we can chat tonite at some point ?... Chiser... p. s. Great
game Thurs. night" with a "smiley face" added. That is, the objective evidence
informing his relationship with Mr. Sutch militates against his view that their
relationship, from the beginning of their working together, was one of animosity
and dislike towards the grievor on the part of Mr. Sutch. In my view, and I so
find, the objective evidence does not support the grievor's subjective view that
Mr. Sutch was harassing him in regard to the timekeeping controversy. I note,
also, that in her January 21, 2011 e -mail to the grievor, Ms. Dawes informed
him "...we have reimbursed to any accruals you might have used in connection
with this complaint..." In reimbursing the grievor, it would appear the
Employer attributed the timekeeping discrepancies to the timekeeping system
changeover and not to mis- conduct on the part of the grievor.
As concerns the grievor's allegation that the Employer harassed him in failing to
provide him with a satisfactory resolution of his complaint against Mr. Sutch,
the objective evidence does not support his allegation. The grievor brought his
complaint to Ms. Van Wagner on December 9, 2010. Ms. Van Wagner then
involved Ms. Dawes, the director of human resources, who then conducted an
investigation where the grievor, Mr. Sutch and Mr. Bottos participated. That
investigation was completed by January 20, 2011, i.e., some 6 weeks after the
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grievor met with Ms.. Van Wagner, and 2 days after the grievor reported to her
he was back at work. I can appreciate the grievor would have preferred the
Employer to have dealt with his complaint quicker since he was experiencing
stress in the workplace. Nonetheless, the some 6 weeks from the time he made
known his problems to Ms. Van Wagner that it took for Ms. Dawes to report the
investigation results to the grievor (which amount of time, included the
Christmas and. New Year's holidays), was not of inordinate length.
Further in her e-mail, Ms. Dawes indicated that he would be reimbursed any
accruals ,he may have used since bringing his concerns to Ms. Van Wagner and,
more significantly, any further, problems with timekeeping the grievor may
experience would be taken to Mr. Bottos - the grievor's previous supervisor
responsible for his timekeeping and with whom the grievor had no difficulties -
rather than having them dealt with by Mr. Sutch. Since Mr. Sutch was not the
grievor's supervisor at that time, the, Employer effectively severed the working
relationship between the grievor and Mr. Sutch. Also, the Employer indicated it
would continue to deal with the grievor's , concerns by having "operational
possibilities and implications" dealt with and, when determined, would report
the results to the grievor. That is, the Employer indicated it would look into
further alternatives to assist the grievor. The grievor, however, was dissatisfied
with this response as indicated in his January 25, 2011 e-mail to Ms. Van
Wagner. Nonetheless, I cannot find that in responding as it did to the grievor's
concerns, the Employer, in any way whatsoever, harassed him. It did clearly
resolve his main concern which was his workplace relationship with Mr. Sutch.
In any event, the grievor went off work, as of February 13, 2011, before the
matter involving Ms. Hooper was decided upon.
Based on all the foregoing I find the objective evidence before me does not
establish, on a prima facie basis, the grievor was harassed by Mr. Sutch or
harassed by his Employer. The Employer's motion of non-suit succeeds.
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The grievance, therefore, is dismissed.
J
Dated at Toronto, this day of , 2012.
c
William A. Marcotte
Arbitrator
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Kinark Child Services & Family Services and OPSEU, Local 213; Patterson FINAL