HomeMy WebLinkAbout1995-1236.Davie.99-09-09 Decision
ONTARIO EMPLOYÉS DE LA COURONNE
CROWN EMPLOYEES DE L’ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT RÈGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLEPHONE, (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TELECOPIE: (416) 326-1396
GSB # 1236/95
OPSEU # 95F176
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Davie)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General and Correctional Services)
Employer
BEFORE S.D. Kaufman Vice Chair
FOR THE N. Roland
GRIEVOR Nelson J. Roland, Barrister & Solicitor
FOR THE G. Basanata
EMPLOYER Staff Relations Officer
Ministry of the Solicitor General and Correctional Services
HEARING March 30, 1998
May 13, 1998
July 27, 28, 1998
November 9, 1998
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Decision
The grievor, Scott Davie, was a Fines Processing Clerk, OA6, in the now defunct Photo
Radar Project, which was administered by the Ministry of the Solicitor General and
Correctional Services at 90 Harbour St., Toronto, Ontario, in 1995, when the events giving rise
to this grievance occurred. Mr. Davie began to work as an unclassified contract employee in the
Photo Radar Project in about August of 1994. His last date of employment there was July 7,
1995. At all material times O.P.P. Inspector George Marshall was the Project Manager, Joan
Cullen was the Office Manager, reporting to Inspector Marshall, and Seth Brandon was the
grievor’s immediate Supervisor in June and July, 1995.
The grievance (Ex. 1), which is dated July 14, 1995, alleges:
violation of Art. A 1.2 and any other applicable article of the OPSEU Collective
Agreement
and indicates the following as the settlement desired:
1. Written Apology and Letter of Recommendation
2. A new position through the Accountability framework.
The evidence and the arguments of the parties are set out in detail in the Appendix
attached to this Decision. The following is a brief statement of the relevant points in the
evidence, together with certain findings of fact, where the evidence was vague or in dispute, and
my reasons and decision.
In June, 1995, the Progressive Conservative party won the Ontario Provincial election.
One of its stated intentions during the election campaign had been that it would terminate the
Photo Radar Project. The staff of the Project and Insp. Marshall and Office Manager Joan
Cullen were aware of the possibility that their positions were in jeopardy at some point before
the election results were known. Thereafter, there was confusion among management as to the
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length of notice staff were each entitled to, and whether the notice was required to be in writing.
The grievor attempted to inform Ms. Cullen and Inspector Marshall of the notice to which he
was entitled. Ms. Cullen and Insp. Marshall were busy winding down the Project, and were in
receipt of information from Human Resources regarding notice which was contrary to the
information the grievor was providing them. I find, based on the evidence and on balance of
probability, that Ms. Cullen and Insp. Marshall perceived the grievor’s attempts to inform them
of his rights pertaining to notice or pay in lieu thereof as a nuisance. I do not criticize them for
this; there was a great deal of stress in the circumstances, and they had many other pressing
responsibilities.
(The grievor filed a grievance pertaining to lack of sufficient notice of termination of his
employment, which the parties subsequently settled, and which is not before me.)
The grievor suffers from Crohn’s Disease.
On March 30, 1995, Management Board Secretariat and OPSEU entered into a
Memorandum of Agreement referred to by the parties as the Enhanced Accountability
Framework. The purpose of the Framework was stated in its preamble (emphasis added):
Based on the advice, support and participation of the OPS Advisory Group on
Employment Equity for Persons with Disabilities and the Ontario Native
Employment Equity Circle, the parties to this memorandum have agreed to the
following measures to assist in the retention and placement of classified and
unclassified aboriginal employees and classified and unclassified employees with
disabilities within the OPS.
Neither the evidence nor argument suggested that the employer took the position that the
grievor was not disabled within the meaning of the Framework and not entitled to the benefit of
its provisions. I therefore conclude that the fact that the grievor suffers from Crohn’s Disease
entitled him to the benefit of the Framework.
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The grievor became aware of and wanted to utilize the Framework in early July, 1995.
He was also aware that he was not viewed positively by his Office Manager, Ms. Cullen, for the
reasons stated above, and that the Framework contemplated the involvement of the “line
manager” (presumably Office Manager Joan Cullen) in looking for suitable positions. He
determined that he would prefer Diana Blakey, who he described as a Human Resources
Manager for the O.P.P. Relocation Project, and whose duties included placing people who were
declared surplus, to pursue a position for him under the Framework, rather than Ms. Cullen or
Inspector Marshall. Apparently Ms. Blakey was willing to assist him under the Framework. He
understood from Ms. Blakey that there were 12 positions for which she could send his résumé,
that they were active competitions, and that the chances were very good that she could “place”
him.
The Framework required the involvement of the Employment Equity Program, which
was in North Bay. The grievor was advised to and did in fact write to Monica Campbell
(subsequently Monica Jensen) of the Employment Equity Program on July 4, 1995 (Ex. 4),
advising her that he suffered from Crohn’s Disease and that he wished to activate his rights
under the Framework. He asked Ms. Campbell to contact him. He provided his work and
residence telephone numbers. In his letter, the grievor did not ask Ms. Campbell to contact Ms.
Blakey instead of his “line manager”.
I find, on the evidence, that in a casual conversation with OPSEU Local 523 President
and Unit Representative Eva Robinson pertaining to notice requirements, which occurred prior
to July 7, 1995, Inspector George Marshall conveyed to Eva Robinson that he thought the
grievor was a troublemaker, that he did not appreciate the grievor’s questions regarding notice,
and that he did not view him favourably.
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I find, on the evidence and on balance of probability, that by no later than July 7, 1995,
the grievor’s last day of work, the fact that the grievor suffered from Crohn’s Disease and that
he was attempting to make use of the Enhanced Accountability Framework was communicated
to Ms. Cullen as Office Manager or “line manager” as a result of an inquiry to the Photo Radar
Project office initiated by Ms. Campbell or someone from the Employment Equity Program in
North Bay.
I find that on July 6, 1995, in the context of her winding-down responsibilities, Ms.
Cullen viewed the grievor as such an annoyance that she preferred that he not be present July 7,
1995, his last shift, and that she told him that he did not need to come in to work that day and
that he could have the day off, with pay. That was within her managerial authority to decide. I
find that she had Insp. Marshall’s support in her decision.
Unfortunately for all concerned, the grievor came in to the Project Office on the
morning of July 7, 1995 unannounced, to see Inspector Marshall. The grievor saw his
colleagues doing work, determined that Ms. Cullen had misrepresented her reasons for giving
him the day off, and decided to sit down and assume the duties from which he had been relieved
by Ms. Cullen. I conclude that he did so in the belief that he was obliged to work until the end
of his contract, and without the intention of disobeying his Manager. I also conclude that
neither Inspector Marshall nor Ms. Cullen were pleased and that they viewed the grievor’s
insistence upon working as approaching unsubordination. Within an hour of the grievor
commencing work, the grievor’s Supervisor, Seth Brandon, asked the grievor to see Ms. Cullen
in her office. Neither the grievor nor Ms. Cullen were pleased with each other. Critical words
were exchanged and she requested that he leave the Project Office.
6
The grievor left and shortly afterward saw Eva Robinson in her office upstairs in the
same building and conveyed to her what had occurred in the Project Office. Ms. Robinson
telephoned Inspector Marshall and spoke with him.
Inspector Marshall’s recall of the details of this conversation was very limited. I found
his evidence candid. He did his best in recalling events which occurred at a time of great
change and some stress, approximately three years before he gave his evidence. However, I am
unable to rely upon his interpretation of a remark which he was unable to specifically remember
having made.
I find, on the evidence and on balance of probability, that in that telephone conversation
on July 7, 1995 with Ms. Robinson, Inspector Marshall referred to the grievor as “a
troublemaker” and said “he may win this battle, but he’ll lose the war”. I find that on that
occasion his tone in relation to the grievor was angry. I am satisfied, on the evidence and on
balance of probability, that by “he may win this battle, but he’ll lose the war”, Inspector
Marshall meant that he intended that the grievor would not work for the government again.
Having so found, an unfortunate but unavoidable inference arises from the evidence that
the grievor was not given the full benefit of the Enhanced Accountability Framework by either
Ms. Cullen or Inspector Marshall or both, owing to their negative feelings toward him.
I conclude that the union’s evidence raised a prima facie case of an intention and motive
on the part of members of management, Inspector Marshall and Ms. Cullen, to discriminate
against the grievor regarding his desire to obtain further employment with the government,
arising from his attempt to secure his rights to sufficient notice of termination of employment or
pay in lieu thereof, and from having insisted upon working on his last day of employment, and
the circumstances surrounding it. Ms. Cullen and Insp. Marshall were in threshold or pivotal
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positions in relation to the mechanisms available to the grievor under the Enhanced
Accountability Framework. Unless Ms. Campbell/Jensen contacted Ms. Blakey or the grievor
(and she apparently did not), Ms. Cullen was the “line manager” contemplated by the
framework to “undertake a further analysis to determine whether it [was] possible to offer a
contract extension or a new contract to that particular employee” and/or “undertake a
comprehensive search to find another suitable position” for the grievor. Ms. Cullen was in a
position to identify such positions and determine their “suitability” for the grievor, and
communicate with the grievor about them, and supply an objective reference. The fact that the
grievor preferred that Ms. Blakey perform the function of the “line manager” did not relieve
either Ms. Cullen or Insp. Marshall from their obligations under the Framework and under the
collective agreement.
Where a prima facie case of improper motive or intention to discriminate has been
established, as I have found occurred here, a secondary burden of proof then shifted to the
employer to establish that it had carefully and extremely conscientiously given the grievor the
full benefit of the Framework (see OPSEU and Ministry of Health, T/0013/92 (Stanley); Barrie
Typographical Union No. 873 v. The Barrie Examiner, 1975 OLRB Rep. 745 (Carter) 0597-75-
U.)
The Memorandum of Agreement between Management Board Secretariat and OPSEU,
referred to as the Framework, is enforceable through arbitration before the Grievance Settlement
Board: Bell, 159/95 (Roberts).
The relevant terms of the Enhanced Accountability Framework (Ex. 2) are the
following:
1. The employer commits to implementing the Enhanced Accountability Framework as
described in the attached addendum.
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2. Where the employer determines there is a continuing need for the work being
performed by the employee, the affected employee’s unclassified contract shall not be
terminated prior to the existing expiry date. Where the employer determines that a
continuing need for the work being performed by the employee extends beyond the
contract expiry date, the contract will be extended up to the date where the employer
determines the need for the work stops.
3. Where the employer determines there is no continuing need for the work then the
employer shall take the appropriate action under the Enhanced Accountability
Framework.
4. A Job Referral Network (Jobnet) be established to offer assistance in matching the
skills of job-threatened unclassified aboriginal employees and employees with
disabilities for referral to suitable vacancies that have cleared the surplus list as well
as those registered vacancies of 3 months or more. Until a Jobnet database is
operating this individual matching for referral will be carried out manually.
The Jobnet will be coordinated with the Bargaining Unit Redeployment Committee
(BURC), and weekly reports on employees using the Jobnet will be provided to
OPSEU by the employer.
The BURC, Jobnet reference group and representatives of the aboriginal and
employees with disabilities networks will meet immediately to determine the most
effective means of establishing this link.
5. Where a classified or unclassified aboriginal employee or employee with a disability
has specific concerns of the application of the process outlined in this agreement and
attached addendum, the employee will bring these concerns to the attention of the
Employment Equity Division. The Employment Equity Division will notify the
employee concerned that advisory groups and OPSEU are available for
representation. The EE Division, in conjunction with Negotiations Secretariat and
Redeployment staff of Management Board Secretariat shall immediately review the
case.
The relevant provisions of the Addendum are:
The following outlines the process to be used when the Enhanced Accountability
Framework is triggered:
For unclassified employees:
1. Ministry line managers, at the earliest possible time, forward to their
Employment Equity office a list of the names and dates when unclassified
employees are intended to receive a notice of termination.
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2. The Employment Equity Office determines whether the action will result in
job losses for self-identified unclassified aboriginal persons or persons with
disabilities.
3. Where it is determined that such an unclassified job loss would occur, the
employee’s line manager, Director and Assistant Deputy Minister undertake a
further analysis to determine whether it is possible to offer a contract
extension or a new contract to that particular employee.
4. Where such an offer is not possible, the line manager, Director and Assistant
Deputy Minister, with the assistance of Ministry Human Resources
consultant/Employment Equity Office, undertake a comprehensive search to
find another suitable position for the person within the Ministry.
5. If this search is unsuccessful, written approval to terminate the employee must
be sought from the Employment Equity Manager and the Deputy Minister
who must be satisfied that a comprehensive search has been undertaken and
that there is a compelling business case necessitating the job loss.
6. Upon receipt of written acknowledgment from the Employment Equity
Manager and Deputy Minister that no suitable position can be found for the
person within the Ministry, the line manager provides written notice of
termination to the employee, with a copy to the Ministry’s Employment
Equity Manager and OPSEU.
The evidence suggested that there was a lag in communicating the existence and terms
of the Enhanced Accountability Framework to line managers as late as July, 1995. I accept Ms.
Cullen’s evidence that she was not aware of the Framework until she heard from Ms.
Campbell/Jensen. Consequently, point 1 of the Addendum was inapplicable in this case.
Presumably, once Ms. Campbell/Jensen received the grievor’s letter (Ex. 4), he received
the benefit of point 2 of the Addendum. I have determined above that Ms. Cullen became
aware that the grievor was attempting to utilize the Enhanced Accountability Framework by no
later than July 7, 1995. As of that date, the grievor was entitled to the benefit of points 3 and 4
of the Addendum as well as points 2, 3 and 4 of the signed portion of the Framework.
However, the grievor was no longer in the workplace.
10
The evidence of Ms. Robinson suggested that the work of the Project continued until
some time in the fall of 1995. Her evidence was not contradicted. This suggested the
possibility that the grievor might have been entitled to the benefit of the following point in the
signed portion of the Framework (Ex. 2):
2. Where the employer determines there is a continuing need for the work being
performed by the employee, the affected employee’s unclassified contract
shall not be terminated prior to the existing expiry date. Where the employer
determines that a continuing need for the work being performed by the
employee extends beyond the contract expiry date, the contract will be
extended up to the date where the employer determines the need for the work
stops.
None of the employers’ witnesses’ evidence dealt specifically and directly with the
requirements of the above point in the Framework, and whether those requirements had been
considered in relation to the grievor, and how, if at all, they had been applied in his case,
particularly in relation to Ms. Robinson’s evidence that work on the Project continued until the
fall.
The grievor would also have been entitled to the benefit of the following points in the
Framework (Ex. 2):
4. A Job Referral Network (Jobnet) be established to offer assistance in matching
the skills of job-threatened unclassified aboriginal employees and employees
with disabilities for referral to suitable vacancies that have cleared the surplus list
as well as those registered vacancies of 3 months or more. Until a Jobnet
database is operating this individual matching for referral will be carried out
manually.
The Jobnet will be coordinated with the Bargaining Unit Redeployment
Committee (BURC), and weekly reports on employees using the Jobnet will be
provided to OPSEU by the employer.
The employer’s evidence did not establish in any detail the vacancies (if any) which had
cleared the surplus list at the time that the grievor sought the assistance of the Framework, as
well as registered vacancies of 3 months or more (if any), and whether they were identified
11
though the Job Referral Network database, or manually. It did not establish what was done to
determine whether any vacancies were suitable for the grievor, nor how his suitability or lack
thereof for any position was determined. Ms. Cullen’s E-mail to Ms. Jensen of her account of
what she had done (Ex. 7) to comply with the requirements of the framework was insufficiently
detailed to be of assistance regarding these matters. The evidence did not establish any formal
basis to a two-week limit to the time a person in the grievor’s circumstances was entitled to the
benefit of the Framework. Consequently, there was little evidence before me to support Ms.
Campbell/Jensen’s conclusion in her letter (Ex. 6) “that the provisions of the Enhanced
Accountability Framework have been complied with in this instance”.
The requirements of the Framework do not guarantee someone in the grievor’s
circumstances a job. It is, however, a protocol agreed to by the parties, wherein the employer
committed to implementing the requirements of the Addendum, “to assist in the retention and
placement of … unclassified … employees with disabilities”. It was intended to provide
employees with disabilities, such as the grievor, assistance in identifying positions suitable to
his qualifications and experience. It obligated the grievor’s line manager as well as Director
and Assistant Deputy Minister, with the assistance of Ministry Human Resources
consultant/Employment Equity Office to “undertake a comprehensive search to find another
suitable position for the person within the Ministry”. The evidence did not establish clearly that
that comprehensive search occurred or that its results were communicated to the grievor in a
timely manner.
I am therefore obliged to conclude that the employer’s evidence regarding the
implementation of the grievor’s rights under the Enhanced Accountability Framework was
insufficient to discharge the secondary onus which shifted to it to negative the aforesaid
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inference arising from the evidence. The secondary burden of proof was crucial in this case,
and it is unfortunate that more evidence was not provided by the employer to discharge that
burden.
I therefore conclude that the employer failed to give the grievor the full benefit of the
Enhanced Accountability Framework as a consequence of the grievor having pursued his
entitlement to adequate notice of termination of employment or pay in lieu thereof as an
informed member of his Union, and as a consequence of having annoyed Ms. Cullen and
Inspector Marshall on July 7, 1995, by attending at his place of employment and working when
his Office Manager had given him the day off, albeit paid.
I conclude that in doing so, the employer violated Art. A.1.2, which provides
There shall be no discrimination … practised by reason of an employee’s
membership or activity in the Union.
I also conclude that in having failed to give the grievor the full benefit of the Enhanced
Accountability Frameworks, the employer also discriminated against the grievor on the basis of
handicap, contrary to Art. A.1.1.
Turning now to the issue of remedy, the evidence did not establish whether the grievor
would have succeeded in finding employment if the employer had fully implemented all the
requirements of the Enhanced Accountability Framework, or if Ms. Blakey had been authorized
by the Employment Equity Program to assist him in respect of the 12 positions the grievor
understood were possibilities in early July, 1995. It did not establish the probable length of
such employment, if the grievor had found such employment through the Framework.
In view of the secondary burden of proof, it would have been prudent for the employer
to call other witnesses, such as Ms. Blakey and Ms. Campbell/Jensen to establish the extent of
the grievor’s likelihood of obtaining other employment with their assistance under the
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Framework. I am obliged to infer, from the failure to call them, that their evidence would not
have assisted the employer, i.e. that it would not have established that the grievor’s likelihood of
finding other employment through the Framework was less than 50%: International
Brotherhood of Painters and Allied Trades, Local Union 1891 v. Domus Industries Ltd. [1994]
OLRB Rep. December, 1630 (Shouldice); Labourers’ International Union of North America,
Local 183 v. Tillotson-Sekisui Plastics Limited [1979] OLRB Rep. 1027 (Burkett).
Mr. Davie was an unclassified employee, as was the grievor in Merson, 299/93 (Gray).
In Merson, the grievor was denied reappointment as an unclassified “casual” Correctional
Officer because the Superintendent found him combative during grievance meetings. Mr. Gray
addressed the issues of loss of opportunity and the absence of evidence in determining the
grievor’s loss at p. 17, supra:
Reappointment for the period July 1, 1993 to September 30, 1993 was not
the only thing the grievor lost as a result of the employer’s discriminatory
conduct. He also lost the opportunity to be considered for reappointment at the
end of that period and the concomitant possibility of consideration for
reappointment for subsequent periods. The outcome of that first and any
subsequent opportunities for reappointment is a matter of speculation only as a
result of the employer’s wrongdoing in June, 1993, so the fact that the
assessment of loss involves speculation should not be to the benefit of the
employer.
In this case, the grievor lost the opportunity to be considered for further employment
under the Framework and was not employed again for 9 months. I see no reason to deviate
from Mr. Gray’s reasoning, i.e., the fact that the outcome of the full utilization of the
Framework to the grievor is a matter of speculation should not be to the benefit of the employer.
The employer’s suggestion that the grievor would most probably, if successful through the
Framework, have obtained a six-month contract, for which there is never any guarantee of
renewal, was speculative. I therefore conclude that in these circumstances, the grievor is
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entitled to full compensation for 9 months of salary at the rate he earned as a Fines Processing
Clerk, with interest.
I accept that the grievor may have suffered annoyance, embarrassment, humiliation, and
other hurtful emotions, as well as stress during the period in which he was unemployed, which
may have manifested themselves in physical symptoms. However, in the absence of detailed
evidence with respect to symptoms, frequency and duration, it is not possible to assess the value
of his claim for pain and suffering, and therefore, his claim for damages for pain and suffering
is dismissed.
If the employer takes the position that it requires production of an income tax return or
returns for the nine months during which the grievor was unemployed, and of proof of
mitigation of losses, then I direct it to so inform the grievor’s counsel in writing within thirty
days of the date of this award (or such further period as the parties may agree), after which it
will be deemed to have waived any claim to such production.
I will remain seised regarding the implementation of this decision.
Dated at Toronto this 9th day of September, 1999.
Susan D. Kaufman, Vice-Chair
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APPENDIX - 1236/95
Evidence:
The grievor’s duties included viewing and organizing evidence and laying charges. He used
various computer software in carrying out his duties, and liaised with the software developers.
He collected statistics pertaining to the volume of charges, informally trained fellow employees
who needed assistance, and made reports and suggestions to improve efficiency. His
undisputed evidence was that he made a positive contribution to the Project. In cross-
examination, he said that he worked four 10-hour shifts per week, including occasional
weekends.
The grievor suffers from Crohn’s Disease. He was hospitalized twice in February, 1995. He
was required to absent himself from work for surgery, he advised, and said that Ms. Cullen let
him take time off work, in mid-February and again at the end of February. He advised that for
two weeks in mid-February he stayed overnight each night in hospital, received an intravenous
at 5:30 a.m. in the hospital, came in on a day pass to work at the start of his shift, either 6 or 7
a.m., received intravenous treatment over lunch (he did not indicate the length of his lunch
period during this treatment), returned to work and finished the shift, and returned to the
hospital at the end of the day. He said that Ms. Cullen “was nice enough to allow that” and
agreed that she was aware of his medical situation. As a result of this arrangement, he said, he
did not have to use sick days. However, he said that he underwent surgery twice in February,
1995 and “missed” 3 days of work.
In cross-examination he said that the first surgery took place in mid-January, 1995, and was
followed by intravenous treatment for about 2 weeks, and that he underwent surgery again in
the first week of February, 1995. He agreed that Ms. Cullen permitted him to make up his time
lost from work, to avoid using his permitted 1.25 days per month sick leave. He stated that he
may have used a couple of days of sick leave, but did not lose time for either surgery. When
asked whether he ever provided Ms. Cullen or management a medical note as to his specific
condition, he said that he told Ms. Cullen, Inspector Marshall and his supervisor that he had
Crohn’s Disease, that he was going in for the first surgery, and would try to keep coming in to
work. He said that he asked whether they wanted a medical note, and that their response was
just an acknowledgment.
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When asked whether he had ever requested accommodation for Crohn’s Disease, he said that
his Supervisor understood that if he was 5 minutes late in the morning that it might be due to his
illness. He confirmed that he had told Ms. Cullen and Inspector Marshall of his condition
before his first surgery in January, 1995. He said that he had mentioned the hospital routine to
his Managers, and that he had shown them an intravenous plug in his arm, and told them that he
had a drain in his back. He then said that he was “away for two weeks, they would have to
know”, “otherwise, why would they allow me to make up the time?” He said that he had not
been secretive.
Joan Cullen had been with the Ministry for 12 years in 1998. She advised that she joined the
staff of the Photo Radar Unit as Supervisor of the Fines Processing Centre in July, 1994, and
was in that position, which was a bargaining unit position, for 3 months. She said that she
became the Office Manager on December 28, 1994, a management position, following a
competition. The grievor was not under her direct supervision. She said that she had a good
employer-employee relationship with the grievor, and then said that she had very little contact
with him. She described her many duties, which included handling attendance for the Photo
Radar Project and directly supervising Supervisors. Three Shift Supervisors reported to her,
and Teams of 4 or 5 Fines Processing Clerks, including the grievor, reported to the Supervisors.
She said that 4 of the staff were classified and that the other 16 were unclassified.
Ms. Cullen said that in December, 1994 she had been a member of a panel to find a replacement
for her former position, Supervisor of the Fines Processing Centre. The grievor had been an
unsuccessful applicant. She said that she spoke with the grievor “as Manager” and that he was
“upset”. She said that he was just as qualified as the other applicants, and that she encouraged
him to maintain his current productivity. She said that the grievor was “good about it”, and that
he did not file a grievance. She said that she encouraged him to apply for other positions that
might come up, as he was well qualified.
Ms. Cullen advised that her next direct involvement with the grievor occurred in February,
1995. She said that she “actually got a complaint from a Photo Manager that the grievor had
been rude to her secretary”. Ms. Cullen said that she found that he was not rude. She said that
the grievor was prepared to have a picture taken for his Provincial Officer’s badge, and had
been late. There was miscommunication, she advised. She said that the grievor promised her
that he wouldn’t be rude, and that he wanted to apologize. She said that she told him that she
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“had to document it” and that he was “upset but accepted it”. She said that she did document it
and gave him a copy and “that was the end of it”.
Ms. Cullen then said that the grievor’s Supervisor came to her and said that the grievor needed
some time off. She said that the grievor told her that he needed an operation and did not tell her
what the operation was for, other than that it was “corrective”. She said that the grievor told her
he would make the time up. She said that she did not know at that time that the grievor had
Crohn’s Disease. She said that her knowledge of his medical condition was limited to the
knowledge that he was taking time off for doctor’s appointments. She said that such matters are
confidential and that she does not ask employees for specifics, but that if they want to discuss it
with her, she is receptive to hear them. She said “I felt there was no disruption to the Centre so
I didn’t have a problem with people having time off in those circumstances”. She said that
“we” made up a schedule as to how the grievor would make up the time.
When it was put to Ms. Cullen in cross-examination that three years had passed since the events
giving rise to this grievance and that she had not remembered that the grievor was away from
work twice due to his illness, she replied that she let the Supervisors deal with time off unless it
deals with making up time. She agreed that she remembered more of the grievor in 1995 than
she did in 1998 when she gave her evidence. When it was put to her that that was why she did
not remember that he told her in January 1995 that he had Crohn’s Disease, she replied “no, I
don’t recall him telling me.” She said that she would have remembered if he had told her the
condition, and that she would have told management that he needed an accommodation. When
it was put to her that she did not know for sure whether he had told her that he had Crohn’s
Disease or not, she replied that the grievor had simply told her that he needed “corrective
surgery”. She reiterated that the grievor did not inform her personally that he had Crohn’s
Disease, and said that as a Manager she did not have the right to ask him.
On March 30, 1995, The Crown in Right of Ontario (represented by Management Board
Secretariat) and OPSEU entered into a Memorandum of Agreement (Ex. 2), referred to in these
proceedings as the Enhance Accountability Framework (EAF). It provided:
Based on the advice, support and participation of the OPS Advisory Group on
Employment Equity for Persons with Disabilities and the Ontario Native Employment
Equity Circle, the parties to this memorandum have agreed to the following measures to
assist in the retention and placement of classified and unclassified aboriginal employees
and classified and unclassified employees with disabilities within the OPS.
18
Upon ratification of the parties and written confirmation of support of this Memorandum
from the OPS Advisor Group on Employment Equity for Persons with Disabilities and
the Ontario Native Employment Equity Circle, the following measures will be
implemented:
1. The employer commits to implementing the Enhanced Accountability Framework as
described in the attached addendum.
2. Where the employer determines there is a continuing need for the work being
performed by the employee, the affected employee’s unclassified contract shall not be
terminated prior to the existing expiry date. Where the employer determines that a
continuing need for the work being performed by the employee extends beyond the
contract expiry date, the contract will be extended up to the date where the employer
determines the need for the work stops.
3. Where the employer determines there is no continuing need for the work then the
employer shall take the appropriate action under the Enhanced Accountability
Framework.
4. A Job Referral Network (Jobnet) be established to offer assistance in matching the
skills of job-threatened unclassified aboriginal employees and employees with
disabilities for referral to suitable vacancies that have cleared the surplus list as well
as those registered vacancies of 3 months or more. Until a Jobnet database is
operating this individual matching for referral will be carried out manually.
The Jobnet will be coordinated with the Bargaining Unit Redeployment Committee
(BURC), and weekly reports on employees using the Jobnet will be provided to
OPSEU by the employer.
The BURC, Jobnet reference group and representatives of the aboriginal and
employees with disabilities networks will meet immediately to determine the most
effective means of establishing this link.
5. Where a classified or unclassified aboriginal employee or employee with a disability
has specific concerns of the application of the process outlined in this agreement and
attached addendum, the employee will bring these concerns to the attention of the
Employment Equity Division. The Employment Equity Division will notify the
employee concerned that advisory groups and OPSEU are available for
representation. The EE Division, in conjunction with Negotiations Secretariat and
Redeployment staff of Management Board Secretariat shall immediately review the
case.
6. The parties agree to commence a process regarding a return to work/modified work
program for OPS employees represented by OPSEU. The program would include
employees returning from STSP, LTIP and WCB.
19
It is agreed further that on the conclusion of the process that it may be appended and
form part of the collective agreement negotiated by the parties’ central negotiating
teams and proposed for ratification.
7. Classified aboriginal employees and employees with disabilities will continue to
retain full use of any existing employment security entitlement they have under the
current collective agreement.
8. Aboriginal employees and employees with disabilities will be identified only on the
basis of voluntary self-identification. At the time of voluntary self-identification, the
Ministry EE Manager will inform the employee of this agreement and their
entitlement to accommodation.
9. The effective date of this understanding, including the addendum hereto, is from
December 8, 1994. The terminal date of this understanding is the date of agreement
on the OPS employment equity plan.
10.This agreement in no way limits the right of the parties to seek a resolution of
complaints by the Ontario Human Right Commission.
11.On ratification of the parties the employer agrees to inform employees of the
assistance available under the terms of this agreement and addendum to assist
employees in fully utilizing these provisions. The employer agrees to seek the
advice, support and participation of the advisory groups and the union in this
communication.
12.The JCC-EE, the OPS Advisory Group on EE for Persons with Disabilities and the
Ontario Native EE Circle agree to meet to review the process, data and outcomes on
or before June 30, 1995.
As agreed by the parties in Toronto, on this 30th day of March, 1995.
FOR THE ONTARIO PUBLIC FOR MANAGEMENT
SERVICE EMPLOYEES UNION: BOARD SECRETARIAT:
(signatures) (signatures)
The relevant part of the Addendum to the above Memorandum of Agreement is set out below:
ADDENDUM
ENHANCED ACCOUNTABILITY FRAMEWORK
The following outlines the process to be used when the Enhanced Accountability
Framework is triggered:
For unclassified employees:
20
1. Ministry line managers, at the earliest possible time, forward to their Employment
Equity office a list of the names and dates when unclassified employees are intended
to receive a notice of termination.
2. The Employment Equity Office determines whether the action will result in job
losses for self-identified unclassified aboriginal persons or persons with disabilities.
3. Where it is determined that such an unclassified job loss would occur, the employee’s
line manager, Director and Assistant Deputy Minister undertake a further analysis to
determine whether it is possible to offer a contract extension or a new contract to that
particular employee.
4. Where such an offer is not possible, the line manager, Director and Assistant Deputy
Minister, with the assistance of Ministry Human Resources consultant/Employment
Equity Office, undertake a comprehensive search to find another suitable position for
the person within the Ministry.
5. If this search is unsuccessful, written approval to terminate the employee must be
sought from the Employment Equity Manager and the Deputy Minister who must be
satisfied that a comprehensive search has been undertaken and that there is a
compelling business case necessitating the job loss.
6. Upon receipt of written acknowledgment from the Employment Equity Manager and
Deputy Minister that no suitable position can be found for the person within the
Ministry, the line manager provides written notice of termination to the employee,
with a copy to the Ministry’s Employment Equity Manager and OPSEU.
7. On a quarterly basis, the Employment Equity Office of each ministry report to the EE
Division of MBS on the number of person with disabilities, aboriginal peoples and
other designated group members who have been assisted by the Enhanced
Accountability Framework. The EE Division will provide the information to
OPSEU.
For classified employees:
….
Ms. Cullen advised that the Photo Radar project was in “a pilot phase” and was running very
well in early spring. She said that in late spring, in May, 1995, during the election campaign, a
lot of rumours were circulating and “we were concerned about how to progress it”. She said
that in a radio interview, Mr. Harris said the Photo Radar Project would be discontinued and
that he would resign if he was unable to implement his promise. She said “the focus changed to
how do we get through this phase”. His remark led to uncertainty, stress in the office. She said
that she did not know where she was going to go and “we were all going to lose our job”. She
said that they did not have any concrete information, and that she and Inspector Marshall called
a staff meeting for June 13, 1995 “to clear the air, to tell them what we knew”.
The grievor said that on June 13, 1995 he attended an office meeting in a boardroom at the
Fines Processing Office, at which the fines processing staff and Office Manager Joan Cullen
21
and Inspector Marshall were present. He said that Inspector Marshall advised them that he had
heard rumours that the Project would be cancelled when the Harris government won the
election, and he let the staff know, informally, that they would not have their jobs. Insp.
Marshall warned the staff that if a good position came up, they should take it. He told them that
they were to carry on business as usual until notified otherwise.
The grievor gave his oral evidence using his letter to Eva Robinson, President, Local 523,
OPSEU, dated July 10, 1995 (Ex. 5), to refresh his memory. The following are his remarks
regarding June 13/95 in that letter:
- an office meeting between the project Manager, George Marshall, the office
manager, Joan Cullan, (sic) and the fines processing staff occurred. It was stated by
the project manager that due to the result of the Provincial election, more specifically
the new Premier’s campaign promise to cancel the Photo Radar project, it was
doubtful that our contracts would be renewed. Inspector Marshal (sic) went on to
say that he was giving us unofficial notice that the processing team may not be
required to work beyond our contract expiry of June 30, 1995. The official word had
been to “carry on business as usual” until a decision was made by Premier Harris or
the new Minister of the Solicitor General and Correctional Services. The Inspector
explained that he would not want to give the processing team official notice in
writing because he may need us beyond our contracts (sic) expiry and that he was
not required to give notice of non-renewal.
In cross-examination, it was put to the grievor that the employer’s evidence would be that he
was not at the June 13, 1995 meeting. The grievor said that he was positive that he attended, if
it took place, and said he was right about that. He agreed that the June 13, 1995 meeting was
not the first time that he had heard of the possibility of the Photo Radar Project closing. He
offered that he had heard of the possibility through the media and agreed that the subject had
been a hot topic in the office as the election campaign progressed. He said that at the June 13,
1995 meeting he was given verbal notice that his contract might not be renewed past June 30,
1995. He acknowledged that once the new government had been sworn in, around June 7 or 8,
1995, the staff knew that the government would cancel the Photo Radar Project. However, he
said he still had hope, as he had gone over the books and saw that the program was making
money. He agreed that the new government had been elected by June 13, 1995, and he restated
that the notice at that meeting was not official.
Ms. Cullen said that the grievor was not present at the June 13, 1995 staff meeting. When asked
how she knew, she replied that the grievor was not on shift and that he was not at the meeting.
22
Ms. Cullen said “we discussed rumours, and answered staff questions” at the June 13, 1995
meeting. She said “we didn’t have any answers” and that she and Insp. Marshall told the staff
that they did not think that their contracts would be renewed past June 29, and that they
encouraged them to apply for other positions. She said that she and Inspector Marshall said it
was “unofficial notice” because the Project had not yet been officially shut down. She said that
the staff was visibly upset and that it was a very trying time for everyone.
The grievor said that about 3 days later, on or about June 15 or 16, 1995, he asked Ms. Cullen
why the staff’s contracts were not being renewed. He said that the work was slowing down, i.e.
less work was coming in. His note (Ex. 5) regarding this date states:
- I asked the office manager if official instruction were to “carry on business as usual”
why our contracts had not been renewed and what was the reasoning behind
reducing the amount of evidence we were receiving from our field officer? I was
told, with a co-worker present, that the contracts had been signed. She was waiting
to receive copies. The second question was left unanswered.
In cross-examination the grievor was asked to explain the above passage. He said that he had
asked Ms. Cullen whether she had received the staff’s employment contracts. He said that he
was told to carry on business as usual, that the contracts had been signed, and that she was
waiting for them. When asked whether he thought it was strange that Ms. Cullen was waiting
for 5-month contracts, he replied that it could have taken 5 months to shut down the Project.
There was so much on the new government’s plate, he advised, that he thought the Project staff
could have remained for 2 to 3 months, particularly when the government saw the advantages of
continuing. When asked the meaning of “what was the reasoning behind reducing the amount
of evidence we were receiving from our field officers?”, he said that since they had been told to
carry on business as usual, he asked for the reason field officers had “slowed down what they
were bringing in.” It was that question, he said, that was left unanswered. He confirmed that he
had noticed that work had been slowing down, and that less work was coming in.
In cross-examination, Ms. Cullen confirmed that she recalled the grievor discussing or trying to
give her information regarding what he thought was the appropriate notice period. She said that
she believed he did so after the first staff meeting, around June 15, 1995. She said that she did
not recall the grievor telling her that if his work was extended by two weeks, he would be
entitled to 16 weeks’ notice, and that he never mentioned it. She said that she first learned of
that point of view when Insp. Marshall relayed it to her. She said that she could not recall when
23
he had done so, and that they had to find out how much notice to give Rosa. She acknowledged
that she could have learned of that before she had decided which staff to retain beyond July 7,
1995. She did not dispute the suggestion that she thought that since Rosa was entitled to 16
weeks’ notice, that they might as well keep her employed for part of that period.
The grievor said that he and the processing crew attended another meeting with Inspector
Marshall and Ms. Cullen, where he heard that no official decision had yet been made as to the
future of the Photo Radar Project, but that the staff should not expect to work past June 30,
1995. His note re June 27, 1995 (Ex. 5) reads, in part:
- an office meeting between Inspector Marshall, Joan Cullan (sic) and the processing
team was called. One of the two managers present explained that the unofficial
speculation from their superiors was that the project would be cancelled immediately
and we would not be required to work beyond June 30. It was further stated that this
was again unofficial, after all, no official decision had yet been made. We should,
however, not expect to work beyond the end of the week. We would be informed of
any change.
The grievor said that after the meeting he said to Ms. Cullen that the staff would require 2
weeks’ official notice or pay in lieu thereof. He said that he spoke respectfully and simply told
her the rules that he was aware of. He said that Ms. Cullen told him that she had been instructed
otherwise by Management Board and that she showed him a letter which had been sent to
management, referring to Managers who had been told to give notice at the beginning of the
contract. He said that the letter was poorly written and mislead Ms. Cullen and Insp. Marshall
to believe that unclassified staff were not entitled to notice, and that he gave her his opinion of
the letter and said to her that he was prepared to back up his position, whether it was based on
the collective agreement or the Human Rights Code. He said that he explained to her that it was
clear to him that the staff was entitled to 2 weeks’ notice in writing. He said that Ms. Cullen
told him that it was up to him to prove that to her, as she had all the proof she needed that the
employer was not required to give 2 weeks’ notice in writing or pay the staff 2 weeks’ pay in
lieu of notice. He described her tone as “adamant”, and said that he was not disrespectful in his
tone. He said that he may have inadvertently insulted her, but did not intend to.
The grievor’s July 10, 1995 letter (Ex. 5) also states re June 27, 1995:
- After the meeting I mentioned to Joan that the current policy does require two weeks
notice of termination of unclassified staff whether their contract is expiring or not. The
office manager was adamant and claimed that she was instructed otherwise by the office
of the Management Board. She showed me an advisory letter stating the improperness
24
of management supplying future notice of termination at the same time the contracts are
created in order to circumvent the regulation of notice being supplied at the appropriate
time. Managers were abusing the notice regulation so that they could make a last minute
decision on renewal of contracts or to avoid any payment in lieu of notice. There was
one sentence in the middle of this advisory that stated unclassified contracts were not
owed notice on termination of their contracts. I explained that this was an opinion that
was not backed up by any quotation of fact. It was clear according to regulation that we
were entitled to two weeks notice of termination. She stated that was up to me to prove
because as far as she was concerned she had all the proof she needed that we required no
notice of termination at our contracts (sic) end.
In cross-examination, the grievor said that he believed that the above-described conversation
with Ms. Cullen occurred in private, as opposed to in the presence of others. He did not agree
with the suggestion that Ms. Cullen had said to him that she would follow the advice she was
given. He agreed that Ms. Cullen had told him that she would look into his concerns, and added
that she told him she would do so only after he had brought her documentation indicating that
the letter referred to above had been incorrect, “at the end of the contract”, some time in July,
after Insp. Marshall had instructed her to inquire. Regarding a suggestion that he may have
insulted Ms. Cullen, the grievor said that whenever an employee tells a superior the regulations,
the superior is not going to appreciate it. He said again that no offense had been intended, but
that it might have been taken that way. He perceived Ms. Cullen to have been “a bit ruffled” on
June 27, 1995 when he raised the notice issue with her, and that she “didn’t appreciate it”. He
advised that he went to his Union Steward in about the last half of May and at the end of June,
1995 for advice, and had some contact with “a branch of Human Resources as well”. He said
that both Human Resources and the Union confirmed that he was entitled to two weeks’ written
notice or pay in lieu. He said that “Fatiya” (sp.?) in Human Resources, or someone in her office
so advised him. He agreed that he had not referred the matter to his Union by June 27, 1995.
He said that he was hoping that word would trickle down to Ms. Cullen, but that he ended up
bringing Insp. Marshall and Ms. Cullen a copy of the policy on July 7, 1995. He did not
disagree that he had been aware on June 27, 1995 that he had a difference with management, but
that he did not file a grievance until July 14, 1995. He said that he did not want to start trouble
or agitate, but rather, wanted to “work things out”. He did not agree that it would have been
reasonable to have grieved on June 27, 1995. He remarked that management only acted after he
had grieved. His grievance, he said, would not have been necessary if they had listened to his
remarks and read what he had given them on July 7, 1995.
25
The grievor did not dispute that he had asked Inspector Marshall whether he could write to his
M.P.P. in support of retaining Photo Radar as a private citizen. He said that he had shown
Inspector Marshall the letter before he sent it, and that Inspector Marshall had “ok’d it”.
Ms. Cullen confirmed that she had a follow-up meeting with staff on June 27, 1995, as she and
Inspector Marshall had promised to keep the staff apprised. She said that upper management
had indicated that the Project would be shut down, but “we didn’t have a wrap-up plan” and that
she and Inspector Marshall told the staff not to expect to work past June 29, 1995. She said that
the new government had been elected by the time the June 27, 1995 meeting had taken place,
and there was no doubt in her mind that the Project would be shut down. She advised that the
enabling Regulation was not revoked until July 5, 1995. She added that they had planned a
wrap-up party for the staff and that Human Resources had told them to give the staff notice, but
“it was still unofficial”. When asked the difference between “official” and “unofficial” notice,
she replied that she just did what Human Resources told her, and said that she believed the
contracts would not be renewed. She agreed that the grievor was present at the meeting on June
27, 1995. She said that she agreed with the following remarks in the grievor’s letter to Ms.
Robinson (Ex. 5)
It was further stated that this was again unofficial, after all, no official decision had yet
been made. We should, however, not expect to work beyond the end of the week. We
would be informed of any change.
and agreed that the above statements were a fair characterization as to what occurred. She
agreed that the grievor approached her about the notice issue. She said that the grievor said to
her that he had read that “they” were entitled to two weeks’ notice. She said that she had read
the contract, which stated one week notice, and that Human Resources hadn’t told her anything.
She said that she told the grievor that no one had told her anything which differed from what
she knew and that the grievor “really” wanted to change her mind. She said that she told him
she needed additional proof and told him that she and Inspector Marshall would follow up.
With respect to the grievor’s entry re June 27/95 (p. 11, infra) in his letter to Ms. Robinson (Ex.
5), Ms. Cullen said that she hadn’t had dealings with Management Board, only with Human
Resources. When the following sentence from Ex. 5:
She stated that it was up to me to prove because as far as she was concerned she had all
the proof she needed that we required no notice of termination at our contracts end.
26
was drawn to Ms. Cullen’s attention, she said that she did not remember the conversation and
said that she could have said that, that it was an emotional time. When asked whether she at
any time believed that staff whose contracts were not being renewed deserved no notice
whatsoever, she replied “This was the main reason for the staff meetings. We wanted staff to
know what was going on and wanted to give them lots of notice”. When asked what happened
with the contracts, she said that they were “verbally extended one week by Deputy
Commissioner Diane Nagel to July 7/95” and clarified that she was referring to the contracts of
the unclassified Fines Processing Clerks, “with the exception of two unclassifieds”. She said
that one unclassified employee had been entitled to 16 weeks’ notice as she had worked over
one year, and another employee, who was a Supervisor and classified, who had been the
“evidence expert”, continued to work for one month. She said that the unclassified Supervisor
was “let go”.
The grievor said that on June 28, 1995 the staff was informed, verbally, that their contracts had
been extended from June 30, 1995 to July 7, 1995. The staff was not asked to sign anything.
His note regarding June 28, 1995 (Ex. 5) states:
- Joan Cullan (sic) entered the processing centre and announced that because no
official decision had been made about our project’s future our contracts were to be
renewed for one week. No one was given a copy of this one week contract. No one
was asked to authorize any amendment to the five month contract we had signed.
Moral (sic) in the processing centre sunk another level lower than it had from the
previous unofficial two weeks notice on June 13.
In cross-examination, the grievor said that the dates of the meetings set out in his letter (Ex. 5)
could have been out a day or two, but that they were “roughly correct”.
The grievor testified that on or about July 2 or 3, 1995, he had “made arrangements” with Diana
Blakey, who he described as “a former Human Resources Manager for the O.P.P. Relocation
Project, whose job it was to place people declared surplus”. He said that Ms. Blakey worked on
the same floor and that he was acquainted with her. He said that she offered to act in place of
his Manager for the purpose of the Enhanced Accountability Framework, and pursue
employment for him, which, he said, his own Manager would normally do. He said that he felt
that because “this is what she does on a daily basis” in the Employment Relocation office, Ms.
Blakey was his best choice. He then said “and I instructed Monica Jensen” (Ex. 4, July 4,
1995).
27
The grievor said that he discussed employment with Ms. Blakey and learned from her that there
were 12 positions available at that time, for which she could send his résumé. He then said that
Ms. Blakey showed him 12 positions that were “active competitions”. He said that it wasn’t a
guarantee of a job, but that he understood from her that the chances were very good that she
could “place” him. He said that Ms. Blakey said that there was a very good chance that he
would “get something” in view of his résumé, but that she did not promise. He said that he
obtained Monica Campbell’s name from someone in the relocation department. He said that he
“instructed Monica Campbell”, whose surname subsequently became Jensen, that Diana Blakey
in Relocation at O.P.P. would act in the position of contacting employers to help him gain new
employment. He said that weeks later, Monica Jensen contacted his Manager Joan Cullen. He
said “I guess she didn’t have my note about Ms. Blakey”.
The grievor’s letter to Ms. Campbell (Ex. 4) states:
July 4, 1995.
To: Monica Campbell
Employment Equity Program
200 First Ave. West
North Bay, Ontario
P1B 9M3
Dear Monica Campbell:
I have been advised to correspond with you for information on activating my rights
under the Enhanced Accountability Framework.
I suffer from Crohns (sic) Disease and have recently been advised that it is considered a
disability by the provincial government.
In my current position, Fines Administration Clerk for the Ministry of the Solicitor
General (Photo Radar), I have been given unofficial Notice of Termination on two
occasions due to the uncertainty of the program.
Since my illness can come out of remission with this type of stress it is imperative that I
find another assignment immediately.
Enclosed with this letter is a copy of my most recent resume. I can be contacted by mail
at the above address or by telephone at work (416) 327-9482 or at my residence at … .
Thank you in advance for your help.
Sincerely
R. Scott Davie
28
In cross-examination, the grievor identified Diana Blakey as a “Manager in the relocation
department of Human Resources, who was on loan from Management Board”. He said that he
was not certain of Ms. Blakey’s job title, but that the main point of her job was to find jobs for
people on the surplus list. He agreed that she was to find jobs for people in the classified
service. He said that Ms. Blakey became involved some time in June, when she overheard him
speaking to someone in her department, on the same floor as the Photo Radar Project, and she
had offered her advice and help. He agreed that his mother’s Manager was Doreen Fotia. He
said that Ms. Blakey had overheard him speaking with his mother, and had offered help and that
Ms. Blakey offered to access him positions which would normally be accessed by the direct
Supervisor, and that she would “promote” him to job openings through the EAF. He said that
he thought Ms. Blakey might put more energy into it than management, and that she might be
more effective.
When asked whether he had given his Managers “a chance”, he said that in view of
management’s position regarding the requirement of two weeks’ notice, it was “safer” to go
with someone else, who, he said, was objective and would help him, and he decided Ms. Blakey
would do a better job. When asked whether he had given his Managers a chance, he replied that
he had not. He said that he told Human Resources, Monica Campbell, that he wanted Diana
Blakey to assist him under the EAF. He was uncertain as to the source of his copy of the EAF.
He restated that Ms. Blakey had volunteered the existence of 12 jobs, and told him that if he
was on the EAF list, that she could call about the positions. He agreed that he was a member of
the Ontario Public Service at the time of Ms. Blakey’s offer. When asked whether he would
have been able to apply for the position at that time, he said that he thought he might not get a
good reference, in view of the threat that had been made, and that it was better to seek a position
through the EAF. He said that he thought it was futile to apply through normal channels in
view of the recent threat of Inspector George Marshall. He agreed that he was going to wait
until he was put on the EAF list, and apply for the positions through Diana Blakey. He said that
Ms. Blakey would not get him on the EAF list, that Monica Campbell in North Bay, or someone
else in that office would do so. He agreed that Ms. Blakey had said that there was no guarantee
of another position. He acknowledged having been told that the EAF as it referred to
unclassified staff was a referral service only, and said that it applied to both classified and
unclassified staff. He agreed that his purpose in writing to Ms. Campbell had been to get
29
himself on the list. When asked whether he meant that Ms. Campbell contacted “the wrong
person” when she contacted Ms. Cullen, he said that he did not know her motive. When asked
how he learned that Ms. Campbell had contacted Ms. Cullen, he said that Diana Blakey had told
him. He agreed that he had not been privy to any of those conversations.
The grievor adopted his notes regarding July 5, 6 and 7 /95 in his letter (Ex. 5) as his evidence
regarding those dates. The note re July 5/95 states:
- The decision by the premier concerning the future of the Photo Radar project was
made on this date. I had been too busy on my day off to watch the news. I received
no word on the decision from my office manager. I telephoned the office near the
day’s end and was told by a co-worker that the project was cancelled and no one
would be working beyond Thursday July 6th. I proceeded into the office to deliver a
copy of the regulation ensuring two weeks (sic) written notice (or pay in lieu of) for
unclassified staff. The regulation was from the most current Human Resources
Guide. The Inspector was involved in an informal meeting so I quietly delivered his
copy without comment. I then delivered a copy to Joan Cullan (sic). I explained
that I meant no disrespect but I had found proof that the processors were entitled to
proper notice. She became defensive and rude and told me that she wasn’t
interested. She had been told otherwise by the Management Board’s letter. We did
not deserve any notice what so ever. Our contracts clearly state that we must be
given notice if the contract is broken before it’s (sic) expiry but it is not written
anywhere on the contract about notice on expiry. I was quite insulted by her lack of
concern for her staff, the irresponsible way she received the information on policy,
and her derogatory attitude in speaking to me. I told her that we (the processors) had
dignity and deserved to be treated better than we had been. We did not deserve to be
told one day that we will be working and the next day that we weren’t. Just then the
Inspector entered Joan’s office. He explained that this regulation from the human
resources guide conflicted with their instructions. He appreciated my effort in
bringing this information to his attention and would personally investigate further to
discover which was fact.
In cross-examination, the grievor was asked to elaborate on the statement “She became
defensive and rude and told me that she wasn’t interested.” He said that he did not think Ms.
Cullen appreciated him interfering with her decision, and when pressed as to the meaning of
“defensive and rude” said that he thought the meaning was “pretty evident”. When asked
whether it was true that he had thrown down the Human Resources Guide and said “see?” he
replied “That’s not what I’m like”. He said that he politely said to Ms. Cullen that he wanted to
drop this off to her and that he let her read it. Then her attitude showed and we had a conflict
about it, he said. He said that previously he and Ms. Cullen had always been on reasonable
terms.
30
He was unable to recall specifically the document that he left with Ms. Cullen on that occasion.
He said that Ms. Cullen’s mind was “made up”, and that she had usually been fair in the past.
He said that he had been “kind of insulted,” as she received the information he provided her
“with a closed mind”. The staff had been told twice their jobs were going to end and then the
end date had been extended, he said. He said “I got a little annoyed. I spoke to her quite
frankly.” He did not agree that Ms. Cullen had been “blasé”. He said that her attitude had been
“forceful and adamant”. He said that Insp. Marshall came in then, and said that he would look
into it. He did not state what he meant in describing Ms. Cullen’s attitude as “derogatory.”
When asked to explain “her lack of concern for her staff” the grievor said that his remark was
confined to that occasion only, and said that perhaps it arose because the Project had been
terminated.
The grievor confirmed that Ms. Cullen had told him on that occasion that they were not entitled
to any written notice or pay in lieu. He said that the letter that Ms. Cullen received caused the
difficulty regarding notice, and that he did not understand it, because there was plenty of money
left over in the budget. He denied that there had been any miscommunication between himself
and management, and said that any miscommunication that had occurred had been among
management. He said that but for the miscommunication among management, his two
grievances would not have arisen. He said that he did not believe that management intended to
deprive them of any rights to which they were legally entitled, but that the problem arose from
management’s misunderstanding of its obligations.
Ms. Cullen advised that in early July, 1995, the “wrap-up” was occurring and it was “hairy”.
The Project had to terminate all contracts with third parties, e.g. Canada Post, as best it could,
many things were happening in one week, and she was still attending court. She acknowledged
that she spoke with the grievor on July 5, 1995. She had not documented the conversation. She
said that at the end of the day the grievor came into the Processing Centre with “the Regulation”
and put it on her desk. She said she “was still holding [her] position in the absence of anything
from Human Resources” and “[the conversation] was heated” and that Insp. Marshall came into
her office and said he would handle it.
Ms. Cullen said that July 5, 1995 had been the day that the Regulation had been revoked and
“there were a lot of issues we were dealing with”. She said that it was a “very heavy day
emotionally” and then the grievor gave her “this piece of paper and I didn’t feel like dealing
31
with it”. She said there had been “tension”, and “argument” and “a heated discussion”. She
agreed that she felt relieved when Inspector Marshall came in and said that he would handle it.
She denied that her demeanour had been “defensive and rude”. She said that she had had “a full
day” but was “pretty cool, even though it was a heated discussion”. She said that she told the
grievor “this” was all she had, and to take it up with his OPSEU Representative. She said that it
was resulting in a confrontation and she wanted to avoid a confrontation. She said that the
grievor was upset, and “we were all upset”. She said that the grievor was a good employee and
“it’s hard to see something like that end”. She agreed that she recalled telling him to seek the
advice of the Union and that she did not recall telling him that staff deserve no notice
whatsoever. She said that she recalled the grievor telling her, as stated in his letter (Ex. 5):
that we (the processors) had dignity and deserved to be treated better than we had been.
We did not deserve to be told one day that we will be working and the next day that we
weren’t.
She said that her conversation with the grievor had been very brief and that she had been
relieved when Inspector Marshall stepped in.
The grievor’s note regarding the next day, July 6/95, (Ex. 5) states:
- I received a telephone call in the afternoon from Joan. She stated that we would
receive confirmation of the original unofficial verbal two weeks (sic) notice in
writing through the mail. I asked if that meant that we were entitled to written
notice. She said that as far as she was concerned she had her instructions from the
Management Board’s letter. I asked if the Inspector had made a decision. She
claimed he agreed with her. She went on to explain that there wasn’t very much
work to do and that I was not required to work my last shift the following day. I was
being given the day off with pay. I asked if it were only me or if others were also
not required to work. She avoided a direct answer to the question. I rephrased the
question again in a direct manner. I was told that we were now working on a
skeleton crew. Again, not a direct answer. I was meant to assume that others were
also not reporting to work otherwise she would have answered my question in an
honest manner. My union advised me at this time to continue to appear for my
scheduled shifts until I received written notice to do otherwise. I felt this was
insubordinate and disrespectful so I did not act on this advice.
In cross-examination the grievor said that on July 6, 1995, Ms. Cullen told him not to come in
on July 7, 1995. He agreed that she told him that he would be paid for July 7, 1995, and when
he asked if the rest of the shift was reporting in, that she told him not everyone was reporting in.
He agreed that there had been some mention of him being spared of having to drive in from
such a distance. He agreed that he asked her about the status of the contract and whether her
32
information had changed. He said that Ms. Cullen told him that a decision had been made and
that she would confirm the unofficial verbal notice given June 13, 1995 by mail.
The grievor’s July 7/95 (Ex. 5) note states:
- Three and one half hours after my shift began, at 9:30am, (sic) I arrived at the
processing centre to meet with my Inspector unannounced. I was greeted by my
whole crew. I proceeded in to meet with George. I asked if he had made a decision
on the two weeks (sic) notice issue. He explained that Joan was asked to call human
resources and he was waiting for her feedback as a result of her call. I explained that
I had been lied to twice yesterday by Joan. I further explained her telephone call
and her comments about his decision and leading me to believe my coworkers were
also not required to work. I shared the advice from my union to continue attendance
at work. I explained why I had not taken it and why I now wanted to take it. I said
since there is plenty of work to do after all, I will begin working. I asked if he
objected and he made an uncommitted facial expression. I began working minutes
later. One hour later I was asked to see Joan in her office. She instructed me to
return my key to the office, leave the office and not return. I asked her on what
grounds? She told me that she was disappointed in the way I was acting. I replied
that I was disappointed in the way she was acting. I told her that she had lied to me
twice during the previous day’s telephone call. Joan told me that she had taped the
conversation and had not technically lied. I asked Joan if she knew it was illegal to
tape a telephone call without informing the party that it was being recorded? She
shrugged her shoulders and said that she did it all the time. I returned my key and
again asked her what were the grounds for her actions. She told me that my contract
had expired. I explained that I had never seen this contract and as far as I was
concerned it did not exist. Joan told me that I could contact Human Resources for a
copy. I told her that was not my responsibility. Joan removed the original copy of
the five month contract commencing on June 30, 1995 that I had signed and that she
had told me had been authorized but was in transit. The date had been amended to
run only one week. No authorizing initials appeared next to the change. I pointed
this out and explained that this was one reason it was not valid. It was also not valid
because a copy of the accepted contract was not supplied to me or the other
processors, respectively. I left the branch.
The grievor explained that “lied to twice” in the above passage reflected that Joan Cullen said
that he was not to come in on July 7, 1995 and that he would be paid for the day. He said that
he asked her whether others were affected, and that her reply had been vague. He described her
reply as “a misrepresentation”. He said that he asked her if he was the only one not to come in,
or were others affected, and she said “no”. He stated “it was partly true”.
The first lie, he said, was that Ms. Cullen told him that it was too far to come in. He lives in
Markham. He said that two other staff members, who lived in Stoney Creek and Hamilton,
33
came in to work that day. They lived farther away than Markham, he advised. The second lie,
he advised, was that there was no work to be done.
Ms. Cullen said that she had taken notes of her telephone conversation with the grievor on July
6, 1995. She said that the call occurred at 2 p.m., that she discussed the call with Insp. Marshall
and that he instructed her to document the conversation, and that she “typed it” at about 5 p.m.
that day. She said that she reached the grievor after several attempts, between 2 and 2:30 p.m.,
to let him know that an “official notice” was being sent to him by Registered Mail. She said
that Human Resources had instructed her to give “a two-week notice dating back to June 13,
1995” and that neither she nor Insp. Marshall had given notice before and they relied on the
instructions of Human Resources.
Ms. Cullen said “ the other reason was, given the stress in the office” over the last few days,
there was not a lot of filming to view and she and Inspector Marshall decided that they really
only needed “a few people”. She said “we didn’t want to end the project on a sour note and
have more confrontation” and that they had decided to tell the grievor that there wasn’t any
need for him to come in, there were only three left on that shift, they thought they were giving
the grievor a paid day off, in good faith, and he would not have to drive in from Markham.
Further, a Supervisor had to be present, and another staff member drove in with that Supervisor,
and another staff member, possibly Rosa, the Clerk who “had to be there for 16 weeks”. She
said that when the grievor asked her if the full shift would be in, she said “no” to him, without
elaborating. She later confirmed that he asked her if the whole shift was going to be there. She
said that she told the grievor that he would receive the notice, that she spoke with him about not
having to come in, and “that was it”.
Subsequently, Ms. Cullen said that on July 6, 1995, she and the grievor had had a heated
confrontation, so she did not want him to come in on July 7. She said “that was the only time”.
She said “It wasn’t because we didn’t want him there, we just wanted to wrap up the project
nicely.” She said that the grievor’s Supervisor Seth, the “staffer who drove in with me”, and
“possibly Rosa” were present on July 7, 1995. Then she said “there were five on the shift”.
When asked how many people showed up for work she replied “three”. She said that the
grievor and Maddie MacDonald (sp?), who was coming from a great distance as well and who
had another job and had offered to work at the other job, did not come in. In cross-examination
Ms. Cullen said that she decided that she did not need the grievor and “Maddie”, who lived in
34
downtown Toronto, to come in on July 7, 1995. She also said that Rosa DeLeon had been
entitled to 16 weeks’ notice, and did not dispute that her decision to retain Ms. DeLeon at work
was influenced by the fact that she was entitled to such lengthy notice. In re-examination, she
said that Rick Hodgkinson had been the “expert evidence Supervisor”. She agreed that Mr.
Hodgkinson had been an unclassified employee, who started work on the same date as the
grievor, August 8, 1994. She agreed with her representative’s suggestion that if Mr.
Hodgkinson’s employment had been extended to the end of July, that he would not have been
employed for one year. Mr. Roland stated that his point was that the hiring date rather than the
start date triggers the one year.
Ms. Cullen was asked to review the grievor’s account of July 6, 1995 in Ex. 5 (infra, p. 19-20)
and was asked whether it was a “fair account”. She replied “Up until what point?”. She said
that the reference to “Management Board’s letter” must have been in reference to Human
Resources. Then she said “it sounds pretty fair”. She denied having avoided answering the
grievor’s question regarding other staff not coming in, and said that she did not tell him about
her conversation with Inspector Marshall, as she felt he was not entitled to such details.
In cross-examination, Ms. Cullen said that she had decided on June 6, 1995, that the grievor was
not to come in on the last day of work. She said that she reviewed the film. She acknowledged
that she made her decision regarding whether or not she needed the grievor’s services the day
after she had had an argument with him. She denied that she had made the decision because she
was angry at him and wanted him out of the workplace. She said that that had not been the case
at all, and that she had other issues to deal with. When asked whether those issues were
regarding the notice that she had discussed with him and that if he were there more than one
year he would be entitled to 16 weeks notice, she denied that there had been any mention of
that. Later, when it was put to Ms. Cullen that she had had a heated argument with the grievor
on July 5, 1995, and that the grievor had come in on July 6, 1995, she said that she had
telephoned him on July 6, as he was not at work at the time, and told him not to come in the
next day. She said that she did not approach the grievor on July 7, 1995, but asked his
Supervisor to send him to her office at about 10 a.m..
The grievor said that he came in at 9:30 a.m. on July 7, 1995, hours later than his usual start
time, to provide proof to Ms. Cullen and Insp. Marshall that the staff were entitled to two
weeks’ notice. When he came in, he said, he discovered that he had been mislead as to the
35
amount of work. He observed that there was “plenty of evidence”, i.e. rolls of film sitting on a
counter in the centre of the room, and three other co-workers were there. One co-worker, who
had made other work arrangements, was not present. He subsequently said that his Supervisor
and two co-workers were present. He said that he decided to work, but did not say anything to
his co-workers. He picked up some work and proceeded to his work station.
The grievor said that when he dropped off the information regarding the notice requirements to
Inspector Marshall on July 7, 1995, he mentioned that he had been lied to and said that he
would work that day. He said that Inspector Marshall made a funny expression but did not say
anything, so he picked up some film and went to his work station.
He said that about an hour after he arrived, his Supervisor asked him to come in and see Joan
Cullen in her office. He said that he initially met with Ms. Cullen in her office “one on one”.
They had a discussion about whether or not they had a valid contract, and disagreed. He said
that she asked him for the key and told him not to return to the Fines Processing Office. He said
that he was not surprised. Her attitude had been “adamant” and became apparent when he had
initially explained that the staff were entitled to 2 weeks’ notice or pay in lieu. She was “taking
it personally” he advised, though he hadn’t meant it to be taken personally at all. He said that
when Ms. Cullen asked him for the key, he asked her “on what grounds?” and that she said to
him that she did not like his attitude, and that he replied that he did not like hers. He then
agreed that he adopted what was in his letter (Ex. 5).
The grievor said that Ms. Cullen asked him to leave the Processing Centre. He said that he
asked for clarification and Ms. Cullen told him that he was not being asked to leave the
property. He said that he followed Ms. Cullen’s request, left the Processing Centre at about
10:35 a.m., and about an hour later went upstairs to see Ms. Eva Robinson.
The grievor said that the Processing Centre occupies approximately one quarter of the first floor
of 90 Harbour St., which is a 5- or 6-storey building.
The grievor said that Ms. Robinson telephoned Insp. Marshall and asked why the grievor was
not being permitted to work. The grievor said that Insp. Marshall said to Ms. Robinson that he,
the grievor, was “a shit disturber” and that he “would win the battle, but would not win the
war”. The grievor said that he was shocked, as Insp. Marshall had always comported himself
professionally. He said that Ms. Robinson asked Insp. Marshall what he meant by his remarks,
and Insp. Marshall told her that the grievor was going to get his 2 weeks’ pay, but that he would
36
never work for the government again. The grievor said that he filled out papers and left. He
subsequently said that he returned to the union office on July 14, 1995, and “did this grievance”.
In cross-examination, with respect to his allegation that Ms. Cullen had lied to him twice during
his conversation with him on July 6, 1995, the grievor said that he believed that her statements
to him were “a deception”. He said that one employee had obtained a restaurant job a couple of
days earlier and would not be in, and that he was the only one not required to come in, and that
it didn’t make sense to him to ask him not to come in. He said that the second lie was that there
had been lots of work to do, he had seen it when he came in at 9:30 a.m., and saw 3 staff
present. He said she had mislead him as to the level of staff that would be coming in and the
amount of work, that distance had had nothing to do with it, that one of the staff who was
present was from Burlington, and that he had been mislead as to the reason that he was not
wanted at work that day. He said that his Union Steward had told him to go in at 6 or 7 a.m.,
but that he had not followed that advice. He said that the Union’s advice had been that he report
for scheduled shifts until he received written notice, up to July 7, 1995, or until it had been
agreed that he would receive two weeks’ pay in lieu of notice. The employer’s representative
said to him that the employer’s version of the facts would not be his, and that this was a red
herring.
In cross-examination the grievor said that he dropped in at 9:30 a.m. on July 7, 1995 to see Insp.
Marshall regarding the notice matter, as Insp. Marshall had said to him that he would personally
look into it, possibly on July 5, 1995, and that he had come in to follow up, rather than to work.
He said that Insp. Marshall told him that he had had Ms. Cullen check into it further, contrary to
what he had told him previously, and that Insp. Marshall told him they were still awaiting a
decision from Human Resources. When asked whether he then said that he was going to work,
the grievor replied that he had not been rude, that he had told Insp. Marshall that he had been
lied to twice, that initially he thought coming in to work would have been disrespectful, but in
view of the lies, he though he should follow his Union’s advice and work. He said that he just
sat down and worked until his Supervisor called him in to see Ms. Cullen.
In cross-examination the grievor agreed that his meeting with Ms. Cullen on the morning of
July 7, 1995, was not the most friendly of meetings. He said that he believed that when he
walked into Ms. Cullen’s office she did not ask him why he was there, but asked him for his key
and told him to leave the office. When asked whether he recalled telling Ms. Cullen that she
37
was incompetent or had a swollen head, he said that he did not recall making either of those
remarks, and that he did not believe he did make either of them, that it was not in his character
to make such statements. He acknowledged Ms. Cullen having told him how disappointed she
was about the way he was acting and said she had made that statement after he had asked Ms.
Cullen why he was being required to leave. He said that he replied to her that he was
disappointed in the way she was acting and said to her that she had lied to him twice. He said
that in reply, Ms. Cullen said to him that she had taped their conversation and said that
technically she hadn’t lied. He said that from his memory and his notes, he believed Ms. Cullen
had said “taped” rather than “recorded”. He said that he did not think he discussed the issue of
notice with her again at that time. He said that he believed that their conversation was about the
contract expiring and that he said to Ms. Cullen that he had never seen a contract for the last
week that they had worked, to which she replied that if he wanted a copy of the contract, he
could contact Human Resources. He said that such a contract was not valid until given to him,
until then it was not binding. He said that he thought that she pulled a copy out of her file and
said words to the effect of “Look, I have one here”. He said that he saw that a line was drawn
through the termination time and changed to one week, and that there was a discussion
regarding its validity. He agreed that his contract was up that day, and identified it as “the one-
week contract”. The grievor did not dispute that there was an adverse attitude toward him on
the last day of the Project. He said that he had not been ostracized. Rather, he said that the
adverse attitude was coming from management because management did not like to be
questioned.
In cross-examination, the grievor denied that he was “furious” when asked to leave, but said
that he was “upset” and “shocked at the way things were transpiring.” He agreed that he
immediately went to see his Union Steward, Eva Robinson. He explained what happened with
Ms. Cullen and Ms. Robinson called Insp. Marshall. He did not dispute that Ms. Robinson had
been apprised of the notice issue. He clarified that the conversation between Ms. Robinson and
Insp. Marshall had not been on a speaker phone, that he could not hear Insp. Marshall’s
responses to Ms. Robinson, and that Ms. Robinson told him what Insp. Marshall had said to her.
Ms. Cullen agreed that July 7, 1995 was the official last day of the Photo Radar Project for all
unclassified staff except the “evidence expert”. She said that she recorded the July 7, 1995
encounter with the grievor. She said that she heard that the grievor was at work, processing
38
film, and was shocked, and that she asked the Supervisor to send him in to her office. She said
that she told the grievor that she was “really shocked and disappointed that you’re here”. She
said she asked him why he had come to work when she had given him the day off, that she had
told him he wasn’t needed and would be paid for the day. She said that the grievor told her that
he’d spoken to his OPSEU Representative and had been instructed to come in to work. She said
that she had no idea who he had spoken to. She said that the grievor “was still very visibly
upset”. She said that she asked him for the key to the office, and that she had obtained the key
from everyone who was not coming in that day. She said “after some delay I got it”. She said
that the grievor was “clearly upset”, and that she told him that he was “entitled to his opinion”.
She said that she tried to stay detached. She said that she asked him to leave the Processing
Centre, that it was in everyone’s best interests, and that she did not want any more
confrontation.
Ms. Cullen said that the grievor said several things to her but that she could not recall what was
said “other than reading my notes and his notes”. She said that the grievor thought that there
was “lots of work” and she and Insp. Marshall had decided that there was not, that it was their
call to make, that she decided what was viewed and what wasn’t. When asked whether she
recalled him having accused her of misleading him or lying to him, she replied “that was the
gist of the conversation”. She said that she had not lied to the grievor, and that she had not tape-
recorded their conversation of July 6, 1995. She said that she uses the term “recording” to
describe “documenting”. She said that she had told the grievor that she had recorded their
conversation, and that he was upset. She said that she did not say to him that she had taped their
conversation, and restated that she had been instructed by her Manager to “document” or
“record” “incidents”. She said that the grievor referred to the notice issue, and that she told him
that she was following Human Resources’ instructions and suggested that he contact them. She
said that she could not “not follow” Human Resources’ instructions.
Reviewing the grievor’s notes regarding July 7, 1995 (Ex. 5), and the words “I was greeted by
my whole crew” Ms. Cullen said “his whole crew wasn’t there”. She was asked whether she
had any clarification to provide with respect to the following passage re July 7, 1995 in Ex. 5:
One hour later I was asked to see Joan in her office. She instructed me to return my key
to the office, leave the office and not return. I asked her on what grounds? She told me
that she was disappointed in the way I was acting. I replied that I was disappointed in
the way she was acting. I told her that she had lied to me twice during the previous
39
day’s telephone call. Joan told me that she had taped the conversation and had not
technically lied. I asked Joan if she knew it was illegal to tape a telephone call without
informing the party that it was being recorded? She shrugged her shoulders and said
that she did it all the time. I returned my key and again asked her what were the grounds
for her actions. She told me that my contract had expired. I explained that I had never
seen this contract and as far as I was concerned it did not exist. Joan told me that I
could contact Human Resources for a copy. I told her that was not my responsibility.
Joan removed the original copy of the five month contract commencing on June 30,
1995 that I had signed and that she had told me had been authorized but was in transit.
The date had been amended to run only one week. No authorizing initials appeared next
to the change. I pointed this out and explained that this was one reason it was not valid.
It was also not valid because a copy of the accepted contract was not supplied to me or
the other processors, respectively. I left the branch.
She said, regarding the allegation that she had lied, that she had told the grievor that she hadn’t
lied, and with respect to taping, that the conversation had been “documented”. When asked
whether she had shrugged her shoulders, she said that she did it all the time. She said “no, I
don’t have a tape”. When her representative suggested to her that it was probably just some
miscommunication, she replied “Obviously”. She said, with respect to the contract mentioned
in the last 6 lines of the above passage, that she believed that the grievor was referring to his
contract which, she said, ran from January to June 29, 1995. She said that if the grievor is
“referring to another, there was a one-week verbal contract”. She said “we’d started to process”
a contract in May, but “we shut it down, they never went anywhere”. She said that she believed
that the grievor was referring to the contract which had just expired. She said that she did not
speak to him after that occasion.
In cross-examination Ms. Cullen did not disagree that between the time she learned that the
grievor was in and the time that she called his Supervisor, the grievor had not disrupted
anything. She denied having been angry; she said that she had been shocked and surprised. She
agreed that she felt that he had disobeyed her and that she had been offended by his conduct.
She said that she felt she had to deal with the grievor in a calm manner and that her meeting
with the grievor on the morning of July 7, 1995 lasted a few minutes.
Eva Robinson said that she is a 24-year civil servant, and that she had been President and Unit
Steward of Local 523 for about 15 years. During that period she had been the grievor’s Unit
Representative, and he saw her about the Enhanced Accountability Framework. She said that at
the time that she saw him, an office for relocation was on the first floor at 90 Harbour St., right
across from the Photo Radar Project office, and that her office was on the second floor on the
40
building. She said that the OPSEU office faxed her a copy of the Enhanced Accountability
Framework and that she gave the grievor a copy. She said that his illness was listed on the
accountability framework. She said that the grievor asked her to give a copy to Ms. Cullen’s
Manager. She said that she left a copy with Ms. Cullen but did not recall having a conversation
with her.
In cross-examination Ms. Robinson said that she had had several conversations with the grievor
about the Enhanced Accountability Framework in the late winter or spring of 1995. She
described her understanding of the Framework as that it was created to help keep certain
members, whose jobs were threatened, employed. She could not recall how that was to be
achieved. When asked whether she recalled any difference in the treatment of classified and
unclassified staff, she replied that she believed that they were to be treated in the same manner.
She said that there was a listing of disabilities in the Framework, and Crohn’s Disease was one
of the listed disabilities. The Employer’s representative advised that that was not in the
evidence yet. Union counsel indicated that he did not think that that matter was in dispute. Ms.
Robinson said she no longer had a copy of it.
Ms. Robinson said that she and Insp. Marshall were “on good terms” and “on friendly terms”,
that they had chatted a few times in his office, that she had asked about Photo Radar and he had
asked about the relocation, and they spoke about “the politics”. In cross-examination she
agreed that she was on friendly terms with Insp. Marshall.
Ms. Robinson recalled that she next dealt with the grievor “over the summer”. She recalled that
she had been upstairs in her regular office, and that the grievor told her that he was not being
permitted to go back to his office. She said that she asked him to explain to her what had
occurred, and he did. She then called Insp. Marshall. She said that the action was grievable for
lack of notice, it seemed so sudden, but she was also concerned about the Accountability
Framework which applied to the grievor. She asked Insp. Marshall what had happened. She
said that the Inspector’s attitude was “aggressive, abrupt, almost hostile” and that she was
“caught off guard”. She said that she had expected to sort things out, and that she was not
aware of anything having occurred between Insp. Marshall and her that would cause him to
behave in that manner.
She said that she opened her conversation with Insp. Marshall by saying that she had the grievor
with her, and that he had told her he had been denied access to the branch, and that she asked
41
what had happened. She said that Insp. Marshall said that the grievor was “a troublemaker”.
She said that she told Insp. Marshall that the employer’s action was grievable without notice,
and that Insp. Marshall then said to her “he may win this battle, but he’ll lose the war”. She
said that she was not expecting that remark, and said “I beg your pardon”. She said that Insp.
Marshall repeated the same words again, and said goodbye and hung up. She said that she did
not recall any further conversation with him and that she understood “from the heat and the way
they said it”, that they wanted the grievor “gone” and did not care whether they violated the
Collective Agreement or the Enhanced Accountability Framework.
Ms. Robinson said that she had also had an earlier conversation with Insp. Marshall about the
issue of the grievor’s entitlement regarding notice and that Insp. Marshall had said that he did
not know when the Project would shut down, and that they discussed that people had to be
given written rather than verbal notice before being let go. She said that Insp. Marshall’s
manner seemed “aggressive” regarding the grievor during that conversation. She said that
coming out of that meeting, from Inspector Marshall’s voice and manner, she felt that the
grievor was not one of the people that they would want to relocate to the new headquarters in
Orillia. She said that Insp. Marshall had called her about notice periods, and in fact had come in
to her office to talk about notice periods before July 7, 1995, and that on that occasion she had
told him that she was obtaining a copy of a management directive on the subject of notice, and
mentioned the grievor’s name. She said that Insp. Marshall said that he did not want to talk
about the grievor, and said that he was not coming with them. She said that his voice and body
language changed when he said this. She said that she asked him why he felt that way about the
grievor, and said that his response was that the grievor was “a troublemaker”. She said that they
discussed notice and that she warned him that just giving oral notice of closing down without
specifying a date was insufficient. She said she believed that that conversation had taken place
within a month of and “not long before” July 7, 1995.
In cross-examination Ms. Robinson was unable to recall the exact date of the conversation she
described in the preceding paragraph, and restated that it had taken place approximately a month
or so before July 7, 1995. She agreed that Insp. Marshall had come to her office and told her
that he and management were uncertain about notice requirements for shutting down the Photo
Radar Project. She said that Insp. Marshall told her that he was not getting much information
from Human Resources and asked her what she knew. Later in cross-examination she advised
42
that she did not get the impression from Insp. Marshall that staff was not entitled to notice.
Rather, Ms. Robinson said, Insp. Marshall was concerned that they get as much notice as
possible. She agreed that his problem was a lack of information from Human Resources. She
specified that the occasion of their conversation had not been an appointment, that Insp.
Marshall dropped by her office occasionally, and that that had been one of those occasions. She
agreed that she had said to Insp. Marshall that the notice had to be specific and written, and
added that she had said to him that the written notice had to be dated, and that management
could not use a meeting to tell staff that the Project would be shutting down as notice. She said
that in reply, he agreed with her.
When asked to expand on her remark that Insp. Marshall became “aggressive” when the
grievor’s name was mentioned, Ms. Robinson advised that Insp. Marshall “went from easy-
going to—he didn’t want to discuss this employee. She said that he became “abrupt, a little
angry”. When asked “did you ask him why?” she said that she did and that Insp. Marshall said
to her that he was not fond of the grievor, that he was a troublemaker, coming over and asking
all those questions of him. Then she said that he indicated to her that he was not fond of the
grievor. When asked what Insp. Marshall specifically said to her, she said that Insp. Marshall
said that the grievor was a troublemaker for coming to the Union over office issues. Ms.
Robinson said that she told Insp. Marshall that employees weren’t troublemakers for asking.
She said that he did not disagree. She said that she did not counsel the grievor to file a
grievance at that point, because nothing had been done, no notice had been given, and that point
was about a month before July 7, 1995.
When asked whether Insp. Marshall’s demeanour “then” i.e. at the time of her conversation
with him about the notice requirements, helped her to understand the Inspector’s remark “he
may win the battle but lose the war”, Ms. Robinson replied that it had helped her. She said that
initially she had been caught off guard, but later realized that Insp. Marshall did not like the
grievor. She said that she understood that the consequence was that the grievor would not work
for him again.
In cross-examination, Ms. Robinson said that when she received the information on notice
requirements, Insp. Marshall was not at work, and that she gave it to Ms. Cullen in Photo Radar.
She was advised that Ms. Cullen does not recall that.
43
With reference to her telephone conversation with Insp. Marshall on July 7, 1995 while the
grievor was in her office, when she was specifically asked whether she asked Insp. Marshall at
that time what he meant by “he may win the battle but lose the war” Ms. Robinson recalled that
she did ask him what he meant, and said that Insp. Marshall said to her that the grievor would
never work for the government again. She recalled that upon hearing that, she told Insp.
Marshall that this would have to be dealt with through the grievance procedure. She said that
they had nothing else to say to one another. She said that she told the grievor what Insp.
Marshall had said to her, and that they were both disbelieving. She agreed that she told the
grievor both the remark “he may win the battle but lose the war” and the statement that he
would never work for the government again. She described her telephone conversation with
Insp. Marshall on July 7, 1995 in cross-examination again, explaining that she described Insp.
Marshall as “aggressive” as Insp. Marshall had called the grievor a troublemaker. She said that
when she told him it would be grievable, he said “he may win the battle but lose the war”. She
said “I beg your pardon”. She said that when she asked him what he meant by his remark, that
Insp. Marshall said that the grievor would never work for the government again.
Ms. Robinson was told that that was not going to be the employer’s evidence, that Insp.
Marshall recalls having made the remark “he may win the battle but lose the war”, but denies
having made the other comments. Ms. Robinson did not agree that she had “surmised” that
Insp. Marshall had meant that the grievor would never work for the government again. She
repeated her earlier description of her telephone conversation with Insp. Marshall. When asked
whether it was possible that Insp. Marshall could have meant that the grievor may or may not
win on the issue of notice, but Photo Radar will shut down, Ms. Robinson firmly replied “no”.
She said that the issue of Photo Radar closing was never in issue. Insp. Marshall’s statement
that the grievor would never work for the government again was made after she had asked him
what he had meant by the remark “he may win the battle but lose the war”, and that was what
Insp. Marshall had told her. In indicating to the grievor that the notice and Enhanced
Accountability Framework matters were grievable, she explained that Insp. Marshall’s
statement that the grievor would not work for the government again was discriminatory and
would keep the grievor from the Framework, which was designed to help keep him employed in
government.
44
In cross-examination, Ms. Robinson was asked whether, when the grievor told her that he was
not being permitted to work, he had explained to her that “this was in respect of unclassified
staff in photo radar”, she said that he had not so indicated. She said that the grievor was very,
very upset. She agreed that it seemed so sudden, and that it was observable that the Project was
still up and running. She said that for about a month, perhaps longer, after July 7, 1995, when
she was in the Union office, which was on the first floor across from the Photo Radar Project
area, she saw people working there and they seemed busy. She did not recall the grievor ever
trying to come back to work after July 7, 1995.
In cross-examination, Ms. Robinson said that one of the first things the new government did
was to shut down the Photo Radar Project. She said “first there was a feasibility investigation,
then came the decision to shut it down”. When it was stated to her that the Project was shut
down in early July, she replied “they may have said so, but I recall it going into the early fall”.
Ms. Robinson later said that she wasn’t the least surprised that people were still working in
Photo Radar, and that she understood from the staff that they were quite busy. She advised that
after the grievor’s departure, one shift was eliminated.
Ms. Cullen advised that after July 7, 1995, the “expert evidence” Supervisor, the classified
Supervisor, and the Fines Processing Clerk who had been entitled to 16 weeks’ notice remained
at work along with her. She said that Insp. Marshall went to Orillia “not long after July 7,
1995”. In cross-examination she acknowledged that “someone” in the branch became aware of
the Enhanced Accountability Program on July 7, 1995, “apparently”. She said that she decided
that she did not need the grievor and “Maddie”, who lived in downtown Toronto, to come in on
July 7, 1995. She denied the suggestion that it was possible that she also had a conversation
with Monica Campbell on July 7, 1995, after she had told the grievor to leave. She said that she
did not speak with Ms. Campbell that day, could not recall what the inquiry was and who
received it, but that she knew that it wasn’t her. When it was pointed out to her that she knew
of a July 7, 1995 inquiry, she said that the information would be passed on to her as the Office
Manager. When it was put to her that it was quite likely that she spoke to Ms. Campbell on July
7, 1995, and that she saw the grievor as a troublemaker and that she did not want him to work
for government any longer, she replied “no”.
Ms. Robinson said that she did not see the grievor after July 7, 1995, but that she spoke with
him over the telephone several times.
45
The grievor said that he had some contact with Diana Blakey around the end of July or mid-
August, 1995, at which time he asked her to call Ms. Jensen. He said that Ms. Blakey had 12
jobs to look into on his behalf and was waiting for official approval to do so. He understood
from Ms. Blakey that Ms. Jensen told Ms. Blakey that she, Ms. Jensen, had had a conversation
with Ms. Cullen, that he, the grievor, was a troublemaker, and that Ms. Cullen had already done
everything she was expected to do to help the grievor obtain a new position, and that nothing
else could be done for him.
In cross-examination, when asked whether he meant that Ms. Campbell contacted “the wrong
person” when she contacted Ms. Cullen, the grievor said that he did not know her motive.
When asked how he learned of Ms. Campbell having contacted Ms. Cullen, he said that Diana
Blakey had told him. He agreed he had not been privy to any of those conversations. He said
that he had had a minimum of three conversation with Ms. Campbell, at least one of which had
occurred before he composed his letter dated July 4, 1995 (Ex. 4). He said that he had followed
up by calling every second week or so. He said that at some point after the two weeks expired,
he was told he had been on the list for two weeks. He said that he did not know whether he had
learned that before or after he received the letter dated September 11, 1995 from Ms.
Campbell/Jensen (Ex. 6). When asked why he had said he was qualified for the EAF Program,
he said that the requirements were that you had to have a debilitating illness and you had to
have received notice. He denied that having learned that he was not on the list had triggered his
grievance and said that Insp. Marshall’s threat had triggered it. He agreed that “the earlier
grievance” as to the adequacy of notice had been settled a couple of months later.
Ms. Robinson said that she was aware that the grievor was working with someone regarding the
EAF, and that she had not spoken to that person about it. When asked whether she was aware
that the grievor had absolved his Managers with regarding to any responsibility under the EAF,
she replied “no”. She said that the grievor had told her that he was following up with the EAF
and that she had no problem with that.
The grievor said that he spoke to Ms. Jensen some time between July 4, 1995 and September
11, 1995, and that on several occasions she told him that she was waiting to see if he was
“accepted”. He said that Ms. Jensen told him only after September 11, 1995, the date of her
written reply to him, that he had been on the EAF approved list, and said that she had so
informed him “after the two weeks was up”, and “by then it was over”.
46
Ms. Jensen’s reply (Ex. 6) dated September 11, 1995 states:
Dear Mr. Davie:
Thank you for your letter dated July 4, 1995, regarding the problems you are presently
experiencing as a result of a restructuring decision affecting the Photo Radar Unit. As a
result of the elimination of a number of positions in the Unit, including your position,
i.e. Fines Administration Clerk, you have requested the assistance of the Employment
Equity Office in obtaining suitable alternative employment.
In your letter and our related conversations, the OPS Enhanced Accountability
Framework was discussed. This strategy represents an agreement between OPSEU and
MBS to assist in the retention and placement of both classified and unclassified
Aboriginal employees and employees with disabilities within the OPS. While no
guarantee of employment, this agreement does recognize the difficulties facing these
groups in the redeployment process.
My review of the circumstances of your termination suggests that the provisions of the
Enhanced Accountability Framework have been complied with in this instance.
Unfortunately no suitable equivalent position was identified and the termination was
effected.
However, I would like to take this opportunity to wish you success in your future
endeavours.
Yours truly,
Monica Jensen (nee Campbell)
Manager, Employment Equity Office
Ms. Cullen said that after July 7, 1995, her next conversation about the grievor occurred on July
11, 1995, when, she advised, Monica Jensen telephoned her. Ms. Cullen said that she had a
conference call with her and Doreen Fotia, Manager of the relocation project. She said that Ms.
Jensen indicated that she had received a letter from the grievor stating that he had a disability.
Ms. Cullen said that that was the first time she had ever heard of the grievor having a disability.
She said that Ms. Jensen asked her whether she had heard of the Enhanced Accountability
Framework. Ms. Cullen said that she told Ms. Jensen that she had not heard of the Framework,
and that Ms. Jensen explained it to her. She said that Ms. Jensen asked if she had done anything
to comply with the Framework, and that she informed Ms. Jensen that she had contacted Human
Resources in Orillia in mid-May, 1995, when the possibility of the Project being shut down
arose, and asked HR to fax to her weekly any job ads in the Ministry, and that she posted all
47
those ads on “the eight-day board” and told them that it was their responsibility to apply and
that she would talk with anyone about it. She said that during the last week of the Project she
spoke to two Managers of “the sections” to see if they had any jobs available, one section
having been Firearms, and one other, and that she gave “him” all the applications of her staff.
Ms. Cullen said that at Ms. Jensen’s request, she E-mailed Ms. Jensen her account of what she
had done. When asked whether Ms. Jensen had said that she was satisfied, Ms. Cullen replied
that Ms. Jensen had said so, and had said that she, Ms. Cullen, had done everything that she
could, despite not knowing about the Enhanced Accountability Framework. Ms. Cullen said
that she received a copy of the EAF after this conversation, and that she had no contact with
Eva Robinson “during this project”. Ms. Cullen denied having received a copy of the EAF from
Ms. Robinson in June, 1995. She said that she had never had any dealings with Ms. Robinson.
She denied having spoken with anyone about the grievor, after July 11, 1995, other than that
there had been a grievance which was settled by paying two weeks’ pay in lieu of notice to all
staff. She said that she had not received any calls for a reference for the grievor after July 7,
1995, and had no knowledge of any applications by the grievor for jobs. She said that she next
heard of the grievor in relation to the instant grievance, and that before having heard of the
grievor in relation to this grievance, that she had heard from John MacIntosh that the grievor
had obtained a contract.
When asked whether she had ever made any comments about the grievor, Ms. Cullen said that
she did not believe so, that she liked him. She then said “a couple of instances, but that’s
human nature, he had a couple of good ideas, but it was just a pilot”. When asked whether she
had ever heard Insp. Marshall make comments about the grievor or refer to him as “a
troublemaker” or that he would not work for the government again, she said “no”. With respect
to the statement “he may win the battle but lose the war”, alleged to have been made by Insp.
Marshall, Ms. Cullen replied that she believed that Insp. Marshall may have made that
statement after he had spoken to Eva Robinson. She said that Insp. Marshall told her that he
had said that the grievor may have won the battle but he would lose the war, and that he said to
her that he did not think Ms. Robinson had understood what he meant. She said that Insp.
Marshall said that he meant that the Project was ending, and said that he made that statement all
the time. She said that she didn’t think it was unusual.
48
In cross-examination, Ms. Cullen said that her conversation with Insp. Marshall regarding his
conversation with Ms. Robinson may not have taken place on the same day as the conversation
with Ms. Robinson. She then said that Insp. Marshall had not given her an explanation, but had
simply said that Ms. Robinson may have misinterpreted his statement “he may win the battle
but lose the war”. When asked whether she was certain that Insp. Marshall did not say that he
“really blew it” or “I really let the cat out of the bag”, she replied “not really”. When asked
whether she recalled why Insp. Marshall would have told her that he’d made that remark, right
out of the blue, she denied any knowledge of his reason for speaking to her of it. She said that
her conversation with him could not have taken place as long as weeks after July 7, 1995,
because he relocated to Orillia around mid-July. She was not certain whether he relocated after
July 18, 1995, and did not know whether his conversation regarding his remark took place after
July 14, 1995, after the grievances were filed. In re-examination, when asked whether she was
certain that she did not recall Insp. Marshall telling her what Ms. Robinson did not understand,
she said that Insp. Marshall had simply said that he didn’t believe Ms. Robinson understood his
remark.
In cross-examination, Ms. Cullen said that she took notes of her conversation of July 11, 1995
with Ms. Campbell. She said that the call was initiated when Doreen Fotia called her and said
that she had Monica Campbell on the line and asked whether they could conference. Ms.
Cullen said that Ms. Fotia told her of the grievor’s and Ms. Campbell’s contact. She said that
Ms. Fotia left the line after introducing her to Ms. Campbell. She said that Ms. Campbell read
her the contents of the grievor’s letter, but that she was not faxed a copy. She later said that she
was in her office in Photo Radar when she “got the call”, that she took no notes, could not recall
the time of the call, and that she had a copy of the E-mail that she sent, which is the only note
that she has of the conversation.
Ms. Cullen’s E-mail to Ms. Campbell (Ex. 7) stated:
From: Cullen, Joan
To: CAMPBELL, MONIKA MO (SGC)
Subject: Enhanced Accountability FrameWork
Date: July 18, 1995 12:19
Monika:
49
As per our telephone conversation this date, here is a breakdown of our response
and actions within the required guidelines of the Enhanced Accountability Framework:
This branch first became aware of the Enhanced Accountability Frame Work through an
inquiry from your office on July 07. In approximately the first week of June, when it
became apparent that the Photo Radar Project was in serious jeopardy of being shut
down by Premier Mike Harris and the unclassified contracts would not be extended
beyond June 30, this office contacted Human Resources Branch and requested that all
current job postings be sent to this office. I posted the job ads on the eight day board
and encouraged all staff to apply to all positions they were qualified for. On June 13/95,
the two week required notice was verbally given to all unclassified contract staff,
followed by written notification. On June 26/95 this branch received approval from
Deputy Commissioner Nagel to extend all contracts until July 07/95 giving staff one
more weeks pay. On July 5, 1995 we received official notice of termination of the Photo
Radar Project from Premier Harris. During the month of June, I have also contacted
three separate managers within the Solicitor General who are located at or moving to 90
Harbour St. and asked if there were any contract vacancies now or in the immediate
future. Through these contracts, one contract staff has received and (sic) interview.
Monika, if I can be of any more assistance in this inquiry, please do not hesitate to
contact me.
Thanks
Joan Cullen
Ms. Cullen said that she “guessed” that she misstated the date of her conversation with Ms.
Campbell/Jensen, on the basis of the E-mail. When asked who wrote the E-mail, she replied
that she thought that the whole thing occurred July 11, 1995, so “that” would have been the date
of her letter. When asked whether she thought that there was a letter dated July 11, she replied
that there was not. She said that she thought “the whole thing” occurred on July 11, 1995 and
said that she had not seen her E-mail in some time. She acknowledged that she wrote the above.
When asked whether she sent it, she replied “it’s coming from my E-mail”. When asked
whether she remembered when she first became aware of the EAF, she said that it was on July
18, 1995, the date of her conversation with Ms. Jensen. When it was pointed out that in her E-
mail she had stated that there had been an inquiry on July 7, 1995, she said that she could not
recall the circumstances. She said that she first became aware of the EAF on the day that she
spoke to Monica. When asked whether she knew to who Ms. Campbell made inquiry on July 7,
1995, she said that she did not know, other than that it had not been her. She said she could not
remember how she learned of a July 7, 1995 inquiry, and that she was not sure whether she had
had two contacts with Monica Campbell. She said that there were a lot of events from three
50
years earlier that she did not recall. When asked whether it was possible that she knew of the
EAF by July 7, 1995, she replied that it was possible, that she did not know. She said that she
was still Office Manager on July 7, 1995, that before July 7, twenty people had worked under
her, and after July 7, three people worked under her.
In cross-examination Ms. Cullen acknowledged that within her branch, Insp. Marshall was her
superior, and that he was the most senior person in her branch. She agreed that in her capacity
in her branch, she would receive information fairly expeditiously, which would permit her to
carry out her duties expeditiously and effectively. When asked the grievor’s last day at work in
relation to the July 18, 1995 call she spoke of, she said that she could not recall, as he could
have been on rotation. She offered that he had come in on June 5, 1995.
In cross-examination, Ms. Cullen said that Ms. Campbell/Jensen had not mentioned any time
limit on how the EAF would apply to the grievor. She said that she did not discuss the grievor.
She agreed that Ms. Campbell/Jensen had read her the grievor’s letter. When it was stated to
Ms. Cullen that the grievor had written to Ms. Campbell/Jensen about utilizing the EAFs, and
that she was being asked whether Ms. Campbell/Jensen had mentioned a cut-off date in relation
to his eligibility under the program, she said that she did not recall much detail about the
conversation, apart from what had been written in her E-mail. She agreed that the E-mail (Ex. 7)
indicated that she sent it at 12:19.
When asked whether she realized that if she had extended the grievor’s employment by two
weeks he would have been entitled to 16 weeks’ notice, Ms. Cullen replied that that would not
have been the case. She said that the employee who had been entitled to 16 weeks’ notice had
been working for five years, and clarified that she had earlier said that that employee had been
employed there for over a year, but had not indicated her length of employment. She said that
she learned about Rosa DeLeon’s entitlement to 16 weeks’ notice when they were “dealing with
the notice issues”. When asked whether the “expert evidence” Supervisor had received 16
weeks’ notice, she said that she did not know, and said that she thought he received two week’s
notice, “like everyone else”. When it was put to her subsequently that she knew that if she kept
the grievor for two more weeks he would have been entitled to 16 weeks’ notice, she said “I---
but it wasn’t part of keeping things going or shutting them down” to ensure that they received
16 weeks’ notice or pay in lieu.
51
When it was put to Ms. Cullen that she knew on July 7, 1995 that the grievor was trying to
access the Enhanced Accountability Framework she replied “I don’t know…I thought it was
July 11”. She rejected the suggestion that if she had retained him as an employee, she knew she
could have helped him further under the EAF.
Later, in cross-examination, Ms. Cullen said that Ms. Fotia had called her to speak with Ms.
Campbell because Ms. Campbell needed to touch base with the Office Manager and that she
was the only Manager left in Photo Radar as of July 18, 1995. When asked whether she was
the only Manager on July 11, 1995, she replied that she believed that Insp. Marshall was on
vacation.
The grievor said that this grievance is not due to sour grapes over the cancellation of the Photo
Radar Program or the EAF. He said that he had not been dealt with equitably by management.
He said that Insp. Marshall had threatened that he would not work for the government any more,
and that his Manager carried out the threat. He said that he obtained a position with the O.P.P.
again, at the new general headquarters building in Orillia, nine months after July 7, 1995. He
said that he had a stress-related illness as a result, and that it has gone back 2 ½ years.
In cross-examination the grievor said that he had done a little work after July 7, 1995 in his
accounting and business consulting business. He said that he made no real estate sales until
after he obtained his job in Orillia.
Ms. Robinson said that in May or June of 1996, she was speaking to an associate in the Telecom
Centre in Orillia, who, when she asked him how the staffing was, told her that they were getting
someone from Toronto and that management had said he was “a real troublemaker”. She said
that she later learned the grievor had been sent to Orillia. She said that she did not phone the
grievor and tell him at the time. She said that she mentioned it to him “later”, and learned that
“it turned out to be him”. In cross-examination she advised that the person she had spoken to at
the Centre in Orillia had been a man, but that she was unable to recall his name. She agreed that
the man with whom she spoke did not “name names”. She agreed that she did not know the
identity of other staff from Toronto who went to work at the Centre in Orillia. She
acknowledged that she concluded that her friend had been referring to the grievor when she
learned that the grievor was going into the same work area at about the same time as the
conversation with her friend. In re-examination, she said that she learned that the grievor was
going to work in the Chief Provincial Firearms Office, and agreed that once she had learned
52
that, that that had nailed it down for her. She explained that that had nailed it down for her “as
soon as [she] heard the person referred to as ‘a troublemaker’ and that the person was from
Photo Radar”.
Inspector George Marshall advised that he started with the Ontario Provincial Police in June of
1969 as a Constable. In 1975 he was transferred to Headquarters in Toronto. He was assigned
as Manager of the Photo Radar Project in spring of 1993, and his duties in respect of the Project
concluded at the end of September, 1995. The Photo Radar Pilot Project fell under the Traffic
and Marine Branch within the O.P.P. Insp. Marshall reported to a Superintendent in that
Branch. Insp. Marshall said that the Project was a 6-Ministry partnership, involving, among
others, the Ministry of the Attorney-General and the Ministry of Transportation. On-the-road
enforcement commenced on August 15, 1994 and continued for 10 months until July 7, 1995,
during which 304,000 Offence Notices were issued. He described the part of the Project in
which the grievor worked as the Data Processing area, comprised of a Manager (Joan Cullen), 3
supervisors (OA8), and 12 Data Processing Officers (OA6) who were designated Provincial
Offence Officers.
Insp. Marshall said that he believed he had a very good relationship with all the staff in the
Project. Although he was “one step removed” from them, he tried to get out into the Fines
Processing Centre to talk to them. He said that he believes a happy employee is a productive
employee, and that he tried to make the workplace as comfortable and as efficient as possible.
He said that he asked a Union Representative for assistance in furnishing the workplace with
foot rests, wrist rests, ergonomic chairs, new monitors, sparing no expense, to reduce the error
rate. He said that he was fairly sure that Eva Robinson was the Union Representative with
whom he consulted, as her office was just down the hall from “ours”. He said that he felt he
had an excellent relationship with Ms. Robinson. He dropped in on her, and had a number of
conversations with her, about information which would affect her and others.
Insp. Marshall said that he felt he had a good relationship with the grievor as well as with the
other employees at the Centre. He said that he sought out the grievor when there were guests
who wanted a description about the technology, as the grievor had a strong interest and in fact, a
passion, for the Project. The grievor suggested improvements. When the Project was to be shut
down, the grievor brought him a draft letter to his local MPP against the termination of the
Project, for his comment.
53
Insp. Marshall recalled that the NDP government called an election in mid-April of 1995. In
May, the Progressive Conservative party advanced in the polls and the Project staff became
apprehensive in view of Mr. Harris’ earlier statement that he would scrap the Photo Radar
Project. In June, after the Progressive Conservative government was elected, he and the staff
became increasingly concerned about the Program. A few days after the election he felt it was
prudent to have a meeting with all staff and tell them what he knew. Their contracts were about
to expire, and he did not know when the shut-down would occur. He said that they told the staff
that while we did not know what would happen, they gave them verbal notice that their
contracts would not be renewed. He said that there was a cloud over the entire office after that,
and the staff felt demoralized, as they had all worked very hard and had anticipated that the
Project would be adopted province-wide.
Insp. Marshall said that a short time later the government enacted a Regulation which repealed a
section of a Regulation which stipulated where Photo Radar could operate. In essence, it
disallowed them to operate their equipment, he said. In early July they took their vans off the
road, but data processing continued until all charges had been laid.
Insp. Marshall said that Deputy Commissioner Nagel extended the contracts which were to
expire on June 29, 1995, until July 7, 1995.
He advised that they kept on “a couple of” the staff, a skeleton crew to assist with court
preparation, and the rest of the staff went on to other things. He said that the classified staff
were “surplussed” and the uniform staff were returned to their home bases. He set about ending
the contracts between the Project and third parties, e.g. pertaining to computer technology and
front-end hardware. He agreed that the grievor was one of the staff whose contract was
terminated.
Insp. Marshall said that he issued verbal notice “in good faith on the advice of an HR
consultant” and said “in retrospect, it should have been written”. Eventually, he said, written
notice was given to all staff at the end of the first week of July, 1995. He identified a letter
addressed to the grievor dated July 6, 1995 (Ex. 8) as an example of the written notice to which
he had just referred. It stated
Re: Confirmation of Notice for Non-Renewal of Unclassified Contract
This letter confirms the verbal notice given to you on June 13, 1995 that your contract
would not be renewed beyond June 30, 1995. It also confirms your last official working
day was July 7, 1995.
54
Thank you for your efforts in the Photo Radar Project.
Yours truly
G.L. Marshall, Inspector
Manager, Photo Radar Project
Traffic & Waterways Safety Project
Ontario Provincial Police
Insp. Marshall agreed that the issue of sufficient notice was settled through another grievance,
in about October of 1995.
In cross-examination, Insp. Marshall said that he had not composed the above letter, did not
know when it had been composed, and said that it had been signed on July 10, 1995. He said
that he did not know why he would not have signed the letter on July 6, 1995, if it had been
ready on that date.
Insp. Marshall agreed that he provided all staff a letter of recommendation and identified a letter
addressed “To Whom It May Concern” dated July 10, 1995 pertaining to the grievor as his letter
of recommendation (Ex. 9). He said that he was on holiday when it was sent out and was
unable to confirm whether the grievor had received it. He later said that he was away from July
10 to 21, 1995. In cross-examination he said that he did not write the letter of recommendation
(Ex. 9).
Insp. Marshall said that he recalled only one conversation with the grievor during the last week
of his employment. He said that on July 7, 1995 the grievor came to his office expressing
concerns regarding the way he’d been treated by Ms. Cullen, and one issue was around notice.
He said that he could not recall whether the grievor had had concerns about notice prior to the
July 7, 1995 conversation. He said “he may have”.
In cross-examination, Insp. Marshall said that he could not recall whether he was aware of a
dispute between Ms. Cullen and the grievor regarding the sufficiency of notice before July 7,
1995. When asked whether he recalled walking into Ms. Cullen’s office on July 5, 1995 and
attempting to calm things between the grievor and Ms. Cullen, he replied that that could have
happened, but that he was unable to recall specifically. When asked whether he recalled there
having been a heated dispute between the grievor and Ms. Cullen over notice, he said that he
could only recall the morning of July 7, 1995. When asked whether he recalled the grievor
55
having brought him information regarding notice before July 7, 1995, he replied “not specially”.
When asked whether he recalled Ms. Cullen having reported to him a dispute between the
grievor and her regarding notice before July 7, 1995, he replied “not specifically”.
Insp. Marshall said that July 7, 1995 was significant because it was the last day for the
employees at the Centre. He understood from Ms. Cullen that there was little film to view, the
film had been processed for the charges that had been laid. He advised that Ms. Cullen had told
him that she had given the grievor the day off because there was insufficient work for him to
make the trek in. At some point during the morning she came to his office, he advised, and told
him that the grievor had come in. At some point after that, he said, the grievor came into his
office, noticeably upset, and said that he was “ill-treated” by Ms. Cullen. Insp. Marshall
advised that his concern “was around subverting the chain of command”. He said that he could
not recall whether the grievor had already spoken to Ms. Cullen or was going to, and that he,
Insp. Marshall, did not want to contradict anything she would say to him. He said that he asked
the grievor to resolve it with Ms. Cullen and the grievor left his office.
In cross-examination, Insp. Marshall said that the first time he saw the grievor on July 7, 1995,
it was mid-morning and in his office. He agreed that the grievor was “pretty upset” and that he
“certainly may” have said something about Ms. Cullen. He said that the grievor had spoken
about the way he had been treated. When asked whether he remembered the grievor having
complained that Ms. Cullen had lied to him, he replied “not specifically”. He said that he could
not recall the grievor having said to him that Ms. Cullen had lied to him regarding the amount
of work that remained, and that he was going to sit down and do some work. He said he did
recall having spoken to Ms. Cullen that day regarding the grievor. He said that Ms. Cullen was
in his office before the grievor came in, and a co-worker came in and told him and Ms. Cullen
that the grievor was in the office. He said that Ms. Cullen was surprised, so his conversation
with Ms. Cullen that day regarding the grievor “must have been before he came in”. When
asked whether he recalled Ms. Cullen’s reaction, he said that Ms. Cullen had asked why the
grievor was working, as she had given him the day off. He said he did not recall her having
been upset. He said that Ms. Cullen’s demeanour did not change.
When it was suggested to Insp. Marshall that the grievor initially came into his office and told
him that he would work that day, and that the co-worker came into his office after the grievor
saw him, Insp. Marshall said “I don’t remember. It’s possible.” He said that he did not recall
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whether Ms. Cullen considered the grievor’s having come in an act of insubordination. He said
that he could not recall whether, once the grievor had commenced working, he was enlisted to
do something about it, or whether Ms. Cullen told him what she was going to do. When it was
later put to him that he had been aware that there had been heated exchanges between Ms.
Cullen and the grievor on the subject of sufficient notice, he said “I don’t know why they
wouldn’t stand out in my mind. I can’t recall.” When it was put to him that on July 7, 1995, the
grievor had called Ms. Cullen a liar, and that he, Insp. Marshall, had taken offense, he replied
that he could not recall, and said that he was not suggesting that it did not happen.
Insp. Marshall said that he could not recall the time of day, but recalled having received a phone
call that day, July 7, 1995, from Eva Robinson. He said that he could not recall whether she
said that the grievor was with her, but said that he formed the opinion that the grievor was with
him. He said that Ms. Robinson expressed concerns as to how the grievor had been treated and
said that he could not recall his response.
When asked whether he had called the grievor “a shit disturber” or “a troublemaker”, Insp.
Marshall said that he could not specifically recall saying or not saying that. He said that he had
serious doubts as to having said that, primarily because he did not feel that way, and that he
would be very much surprised if he had said that. He said that he had a little more tact, and had
no hostility toward Ms. Robinson or the grievor.
When asked whether he recalled saying that the grievor “may win the battle but lose the war”,
he replied “not specifically”. He said that he had used the expression on occasion. He said that
if he said it, he might have been referring to him being successful in the grievance, but that he
couldn’t guarantee the grievor a job in Photo Radar, as it was shutting down.
When asked whether he threatened that the grievor would never work in government again,
Insp. Marshall replied “Absolutely not.” He then said “I can’t recall. I had no such feelings
toward [the grievor]”.
When asked whether he heard Ms. Robinson repeat any of these remarks to the grievor, Insp.
Marshall replied that he could not recall whether Ms. Robinson told him that the grievor was
with him, but that he formed that opinion. He said that he did not know what Ms. Robinson told
the grievor about their conversation.
In cross-examination, Insp. Marshall acknowledged that in his view, Ms. Robinson represented
the Union. When asked whether, some time after his conversation with the grievor on July 7,
57
1995, he received a phone call from Ms. Robinson and became aware that the grievor had been
told to leave the building, Insp. Marshall said that he could not recall when the grievor was told
to leave, and could not recall whether he concurred with the direction to leave. When asked
whether he knew the circumstances under which the grievor was told to leave, he replied that
the grievor had been given the day off, as the amount of film did not require his presence.
When asked whether he knew how much film needed to be processed, he replied “no”. When
asked whether he thought that all the outstanding film would be processed that day, he replied
“I believe so”. He did not know the number of rolls that needed processing. Later, Insp.
Marshall agreed that he had heard from Ms. Robinson about an hour after he had seen the
grievor.
Insp. Marshall advised that he could not recall whether he was aware that two of the staff who
were doing the processing on July 7, 1995 had come in from Hamilton.
Insp. Marshall agreed that he had a good relationship with Ms. Robinson, both before and after
July 7, 1995. When asked whether he had known her to lie, he said that he did not know her
that well. When asked whether he believed that she would lie about her conversation with him,
he said “no”. When it was put to him that Ms. Robinson said that he said the grievor would
never work in government again, and whether he knew of any reason why she would lie about
that, he said “no”. When asked whether there was any reason she would lie in attributing to him
the words “shit disturber” and “troublemaker” in describing the grievor, he said “I could
speculate. I don’t believe I said it. I had no reason to say it. It’s difficult to imagine me being
so tactless.” When it was suggested to him that he might have been upset and slipped, because
Ms. Cullen was upset and the grievor had called Ms. Cullen a liar, Insp. Marshall agreed that he
was upset that day. He said that it was another issue to deal with just before his 2-week holiday,
he had many peoples’ careers to deal with, the grievor was one small fish in a large kettle,
Human Resources had misinformed them. He said “I was annoyed”. When asked whether the
grievor had “set him straight” on the required notice, and this annoyed him, Inspector Marshall
replied “It might very well have been”. He said that he could not recall how the issue of
required notice came to his attention. He agreed that the notice issue persisted, and that he
found out after the Photo Radar Project was over that the grievor had grievances. When it was
put to him that he was consulted about the grievances, he replied “I presume I was”. When it
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was put to him that he said things about the grievor to his colleagues, he replied “I have no
recall of having said things of an adverse nature about the grievor”.
In re-examination, Insp. Marshall said he did not recall having been upset and did not recall the
grievor having called Ms. Cullen a liar. He agreed that he had said the grievor’s presence at
work on July 7, 1995 was “just one more thing”. He said that he had no recollection of being
annoyed with the grievor, and said “I don’t recall”. With respect to having said anything about
the grievor after July 7, 1995, he offered that at some point after the project ended, possibly 6
months later, a staff member was stopped for speeding and produced his Photo Radar
Identification and it had been seized, and the time the grievor was spotted at Headquarters, were
the only times he had spoken about the grievor. He denied having said anything adverse about
him on either occasion.
Insp. Marshall said that he could not recall any further conversation with anyone about the
grievor, after his July 7, 1995 conversation with Ms. Robinson. He said that he was away from
July 10 to 21, 1995. He said that at the cottage he had been in constant touch with Ms. Cullen
and Supt. McIntosh, but that he could not recall whether there had been any conversation about
the grievor. He denied having spoken to anyone about the grievor aside from the written
reference he provided. When asked whether he spoke to anyone about the grievor outside of the
context of a reference, he replied “not that I can recall”.
Insp. Marshall said that he next saw the grievor six to twelve months later, in the cafeteria at the
O.P.P. Centre in Orillia. He said he learned from Staff Sergeant McIntosh that the grievor was
working in their building.
Insp. Marshall said that his knowledge of the grievor’s medical condition was “limited to
anything Ms. Cullen would tell me”. He said that in late winter or spring of 1995, Ms. Cullen
told him that the grievor was taking time off in the morning for medical treatment and making it
up in the evening.
He said that “at some point” he was aware the grievor had Crohn’s Disease, but could not
remember when he became aware of that. He said that Ms. Cullen informed him of it. He said
“I recall thinking if we have to compensate, no, accommodate – I didn’t know what the
implications of the disease were – I’m guessing – I think I knew before the contract ended, but I
don’t honestly know”.
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Insp. Marshall denied having been aware of a document respecting accommodation during the
life of the Photo Radar Project. He said he learned of it some time after the Project terminated.
When asked how it came to his attention, he said his recall was “foggy” but that he suspected
that it came to his attention from the grievor’s assertion that he had been improperly discharged.
He was aware of a settlement of another grievance brought by the grievor, which was settled in
about October, 1995. He said that he was not involved in the negotiations to settle the other
grievance, and understood that it was resolved after October 2, 1995, when his, i.e. Inspector
Marshall’s, involvement with Photo Radar ended.
Argument for the Union:
The grievance alleges a violation of Art. A.1.2 and any other applicable article of the Collective
Agreement. Art. A.1.2 states
There shall be no discrimination or harassment practised by reason of an employee’s
membership or activity in the Union.
The facts as presented indicate that Art. A.1.1 is also applicable:
There shall be no discrimination practised by reason of … handicap, as defined in
section 10(1) of the Ontario Human Rights Code (OHRC).
The allegation of discrimination under Art. A.1.2 arose out of the fact that the grievor was
attempting to exercise his right as a union member under the collective agreement to obtain
proper notice as an unclassified employee. If he had not stood up for his rights under the
collective agreement, if he had not engaged in legitimate union activity, he would not have
incurred Ms. Cullen’s and Mr. Marshall’s displeasure, which set off a chain reaction which
ultimately directly interfered with his attempt to take part in the Enhanced Accountability
Framework.
The grievor’s uncontradicted testimony was that he suffered from Crohn’s Disease, a medical
disorder which enabled him to utilize the provisions of the Framework. The employer was
aware of it in a timely fashion, before the demise of the Photo Radar Project and of his job. The
Enhanced Accountability Framework is an effort by the government to find placements for
unclassified employees, for persons with medical handicaps, among others. The Framework did
not necessarily guarantee the grievor future employment. It did guarantee him that all that was
reasonable would be done, as the name “enhanced accountability” would imply. That would
include the cooperation of the supervisor and her immediate supervisor in carrying out the spirit
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and the letter of the Framework. The union’s position is that there were roadblocks thrown in
the way, to ensure that the grievor did not work. Despite the lack of a guarantee of a job, there
is very good reason to believe that if the employer had cooperated, the grievor would have been
employed. The grievor testified that Ms. Blakey told him on the phone that there were 11 or 12
jobs in which he could be placed.
The union admits that since the grievor did not get those jobs, the union cannot prove that they
were suitable. However, this is the fault of an uncooperative, hostile employer. There is
jurisprudence which deals with situations where discrimination prevents opportunity.
As a general principle, the board should prefer the union’s witnesses to the employer’s
witnesses where there is a conflict. The board should discount evidence where a positive
statement is made in chief when it is contradicted or changed by the witness in cross-
examination. For instance, in the evidence around Ms. Cullen’s E-mail to Ms. Jensen (Ex. 7),
and regarding the times that certain events occurred. With respect to Insp. Marshall’s evidence,
it is submitted that his memory was good regarding matters that were favourable to the
employer and against the grievor, but a bad memory regarding other matters. Insp. Marshall
was the most senior management person regarding this grievance. Compare his evidence with
Ms. Robinson’s testimony regarding his demeanour and his threats or negative statements about
the grievor. Ms. Robinson was clear about the statements and the tone of voice and attitude,
and clear that it was directed toward the grievor. Insp. Marshall said that there was no reason
for Ms. Robinson to lie. She did not lie. There was much he could not recall.
The grievor really annoyed Insp. Marshall, but Insp. Marshall said he could not remember.
Finally, Insp. Marshall admitted it was just one more thing in a big headache. Perhaps he
permitted his emotions to overrule his usual tact. He slipped on that day, and tipped his hand as
to how he really felt.
We can assume that Ms. Cullen had someone who shared her attitude toward the grievor. She
knew about the Enhanced Accountability Framework earlier than she stated in chief. The
grievor made the wrong people angry, and he handed Ms. Cullen a means to discriminate
against him under the Enhanced Accountability Framework. The Framework was intended to
ameliorate his situation with regard to finding new jobs. Ironically, it does not appear to have
been used to ameliorate the grievor’s situation. And much later, he was told that it was for only
two weeks.
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The fact is that the grievor was deprived of the Enhanced Accountability Framework at some
time or another, and at a critical time. There is no less damage to an innocent party when s/he is
prevented from taking a job, due to a discriminatory motive. The employer cannot rely on its
own actions which render it a point of speculation as to whether the grievor would get the job.
The grievor’s testimony was that he was unemployed for 9 months after July 7, 1995. That is a
well-defined period of unemployment. The union requests the board to remain seized should
the parties be unable to agree as to quantum.
The board has jurisdiction from Art. A.1.1 to award damages for pain and suffering under the
Human Rights Code. The union requests the board to award the grievor $10,000.00 for pain
and suffering. The stress of the situation went beyond 9 months; it did not end with the loss of
the job.
Bell, 159/95 indicates that the EAF is enforceable, should enforceability be an issue.
Re Ontario and O.P.S.E.U. (Kimmel/Leaf) (1991) 21 L.A.C. (4th) 129, a case of non-intentional
discrimination, was judicially reviewed and the board was found to have jurisdiction re remedy.
Watts, 524/94, is an example of discrimination in employment due to handicap, and
Howe/Dalton/Loach, 3155/92 etc. is an example of discrimination re gender.
Howe/Dalton/Loach indicated, at pages 89-92, that this board has jurisdiction to award
damages/compensation for pain and suffering. Further, the employer was directed to give one
of the grievors a full-time position, where her rights had been interfered with.
In this case, the nine month period has passed. To order the employer to provide a job
prospectively would interfere with the grievor’s current circumstances. He has a good job
elsewhere. It is impossible to rectify the breach with a job at this time. The monetary loss is the
only remaining means by which to rectify the grievor’s position. Consequently, the union
claims that the grievor should be compensated for nine months, with interest.
In Morgan v. Canada (Canadian Armed Forces) [1989] C.H.R.D. No. 5 T.D. 5/89, the
Canadian Human Rights Tribunal dealt with the issue of whether the complainant actually
would have got the job. In this case, the grievor’s complaint infuriated Ms. Cullen and Insp.
Marshall. This resulted in them failing to employ the E.A.F. The Morgan case is instructive
because compensation for the wages the complainant would have earned was among the
remedies sought. The case viewed the denial of an opportunity to compete as equal to a denial
of employment, in the absence of evidence from the employer that the employee would not have
62
been hired. In Morgan, the discrimination occurred on the date that the application was rejected
on medical grounds. In this case, the grievor’s damages flow from the date his E.A.F.
application wasn’t processed reasonably. Compensation flows from that point. There were 11
or 12 jobs from which the grievor was blocked by his superiors. The union does not have to
prove he would have got those jobs.
This board has jurisdiction to compensation for loss of wages and pain and suffering. We ask
the board to find double discrimination, on the notice issue (discrimination on the basis of
membership or activity in the Union) and on the basis of medical handicap. The board should
remain seized on the issue of quantum if the parties are unable to agree.
Argument for the Employer:
In McIntosh, Merson and Giandoni, the actions of the employer exhibiting anti-union animus
were overt, and not comparable to the evidence in this case. The weeks leading to the
conclusion of the Photo Radar Project were agonizing for both management and staff. The
grievor’s own evidence was that management tried to give the staff information regarding the
shut-down as soon as possible. There was uncertainty as to both the outcome of the 1995
provincial election, and as to the speed at which the Project had to be shut down. The board has
to be concerned for both classified and unclassified staff.
This is not an improper notice case. Management consulted in good faith with Human
Resources and decided on verbal notices. It’s not a matter of Human Resources having made
management look bad. Without clear direction, management could not know when the
contracts would end; that was the motivation behind their actions. The parties chose to settle
rather than battle it out. The grievance regarding the sufficiency of notice was settled on a
without prejudice basis, yet we are dealing with it.
The employer submits that there was no contravention of the collective agreement. At no point
did management believe that unclassified employees were not entitled to notice; the evidence
pertaining to the people entitled to 16 weeks’ notice supports this.
The grievor disagreed with the advice as to notice given by Human Resources, and this resulted
in a series of conversations with Ms. Cullen. The grievor says he may have inadvertently
insulted her on one occasion. This goes to the tone of the conversation and the passion the
grievor felt for the issue. Insp. Marshall wasn’t involved in those conversations; his evidence
was that he thought highly of the grievor and nothing has changed.
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With respect to the allegation that roadblocks were put in the way of the grievor’s employment
with government, Insp. Marshall said that he hadn’t talked to anybody about the grievor. No
evidence was lead that Insp. Marshall or Ms. Cullen did anything which could be considered a
reprisal. And in fact, the grievor did secure employment with the government.
Ms. Cullen’s only direct action in relation to the grievor was the decision not to call the grievor
in to work on the last day. This decision was made in good faith and for business reasons, and
resulted in no loss to the grievor. The person who came in from Hamilton was a Supervisor and
the other staff member had to be there.
There is no accommodation issue in this case. The grievor was permitted to make up time lost
in February. Insp. Marshall remembered that. There was no direct contact between the grievor
and Insp. Marshall regarding accommodation. The case boils down to two alleged comments
and one alleged threat.
The employer agrees the EAF was important. Management Board Secretariat and O.P.S.E.U.
agreed to it and signed it March 30, 1995. It was not a government directive. The information
about it may not have filtered down to Photo Radar by the end of the Project. That would not
have been unreasonable, given the size of the Ontario Public Service, for information to have
been held up about three months. That’s the problem—neither Insp. Marshall nor Ms. Cullen
knew about it. Further, the grievor stated that he did not want either of them to work on it. He
chose someone else to work on it, someone who wasn’t a member of Management Board. In so
doing, the grievor absolved Cullen and Marshall of all responsibility.
With respect to management’s awareness of the grievor’s disability, Ms. Cullen said she wasn’t
aware, and Insp. Marshall couldn’t recall when he learned. However, that is not the point. The
grievor contacted Monica Jensen, and he didn’t want Ms. Cullen’s or Insp. Marshall’s help.
The documents, particularly Ex. 4, support that.
The reference to there having been 11 or 12 jobs was hearsay. The union did not call the person
who is alleged to have made the statement. This evidence should be given little or no weight.
We simply do not know. This evidence was not subjected to cross-examination. We have
documents which set out the parameters of the E.A.F.
Ms. Jensen’s documentary evidence shows that the grievor was not ignored, but was in fact
responded to. It is not known how vigorous Ms. Blakey, his chosen management
representative, was on his behalf. He cannot now complain that Ms. Cullen and Mr. Marshall
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took no steps; he did not want them to do anything. It is not known whether he would have got
a job through the EAF. There is no evidence that he would have obtained employment through
it. The grievor should have put that into evidence. There was no direct evidence identifying the
jobs to which the grievor alluded.
This case is about two alleged comments and one alleged threat, a violation of Art. A. The
alleged comments came from Insp. Marshall, who has always been professional. He was one
step removed from the grievor and believed the grievor should deal with Ms. Cullen, who was
his front-line supervisor. Insp. Marshall was not involved in the grievor’s February, 1995
accommodation and was not involved in the letter of reference.
When she first recalled the events of July 7, 1995, Ms. Robinson did not remember the alleged
threat by Insp. Marshall. She only remembered it when probed by union counsel. Insp.
Marshall could not recall having made the threat, and denied feeling that way toward the
grievor. He said that he was never annoyed with the grievor.
Ms. Robinson’s evidence was that she said to Insp. Marshall that you can’t just tell someone
that they’re gone, that it’s grievable, and that he then said “he may win this battle, but he’ll lose
the war”. Insp. Marshall said that by that remark, he meant that he could not save the Project.
Ms. Robinson said that they wanted the grievor “gone” and that she had the feeling that the
grievor was someone they did not want to take to Orillia. Those perceptions could have
translated themselves when she was talking to the grievor.
Insp. Marshall does not remember much except that the grievor was really upset on July 7, 1995
and that when Ms. Cullen learned that the grievor was in the office, there was no change in her
demeanour. He candidly admitted that he was annoyed with the grievor, as this was one more
thing on the last day before his vacation.
It is the employer’s position that the grievor was distraught over the end of the Project, to the
extent that he wrote to his M.P.P. This manifested itself in frustration over notice. There was a
legitimate difference and he should have filed a grievance earlier. On July 7, 1995, the last day
of his unclassified contract, the grievor misconstrued Ms. Cullen’s good faith effort to give him
the last day off. Ms. Cullen was genuine. The grievor came in prepared for a confrontation
with management. He was asked for his keys, because it was the last day. He stormed into Ms.
Cullen’s office. It is up to the board to determine what happened in their conversation.
Thereafter, with Ms. Robinson, the grievor was told what George Marshall said.
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There is no evidence which proves that Ms. Cullen and/or Insp. Marshall prevented the grievor
from working in the Ontario Public Service. He didn’t apply for any posted competition. No
employers called us for references. He got a contract 9 months later in Orillia.
For the board to order a remedy, the union must make out a prima facie case for damages. Even
if you believe the comments were made, they do not necessarily result in damages. The union
lead no evidence to that effect.
The employer would prefer that the board find, on balance, that the alleged comments and threat
did not occur. If they did occur, it was only the “he may win this battle, but he’ll lose the war”
remark, and this board can find that Insp. Marshall meant “lose the war” in the sense that the
Project was ending, in any case. The board can conclude that he merely made the statement as a
declaration, rather than as a threat.
With respect to the EAF, the grievor cannot blame management if he told management not to
act on his behalf. The only problem is management’s non-awareness of the existence of the
EAF. The grievor spoke to Monica Jensen on July 4, 1995, but he’d dealt with Diana Blakey
before speaking to Ms. Jensen. The discussion with Ms. Fotia was for information only. By
July 7, 1995, the grievor had chosen his representatives.
For a remedy, we should construe the grievor’s rights at the time of his entitlement to EAF, i.e.
two weeks of eligibility for assistance. There is no fit between the EAF and the union’s claim
of nine months’ wages and $10,000.00 for pain and suffering. No evidence was lead regarding
damages and losses. The grievor did not testify regarding pain and suffering.
Alternatively, the board may limit any damages to six months’ wages, the length of an
unclassified contract, for which there is never any guarantee of renewal.
In the event that the board orders a remedy in the form of compensation for lost wages, the
employer requests the production of an income tax return, as the grievor was self-employed in
two businesses. The employer also seeks proof that the grievor mitigated his losses.
Union Reply Argument:
A threat that the grievor will never work for government again could not be more overt or
blatant. The evidence was that it was delivered in a threatening tone. The Union needs to prove
nothing more. Ms. Cullen kicked the grievor out on the last day. The statement “he may win
this battle, but he’ll lose the war” meant he would never work for government again.
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Ex. 7, Ms. Cullen’s E-mail to Ms. Jensen, suggests that management knew of the EAF at least
by July 7, 1995.
The settlement of the notice grievance does not deprive the grievor of the right to complain of
reprisals, nor does the fact that it was settled on a without prejudice basis deprive the grievor of
his complaint under this grievance.
Management would not state directly and/or exactly what it would do to interfere under EAF.
The grievor testified that Insp. Marshall walked in on a heated conversation on July 5, 1995. He
knew of the issue and got dragged into it by Ms. Robinson’s phone call. He says that he cannot
remember what he said.
The fact that the grievor wanted someone else to help him with the EAF was prudent in view of
the tension between him and Ms. Cullen. But on July 7, 1995, Insp. Marshall delivered the
threat, and thereafter the EAF went nowhere, regardless of whether the threats were blurted out
in the heat of the moment.
Rarely do we have an employer who says that the employer will get no further work. The threat
was not an idle one. The board can expect Insp. Marshall to deny it or not recall it. However,
these remarks all call out for an explanation. Once the Union has demonstrated discrimination,
i.e. an intention that the grievor no longer work for the government, it is difficult to know what
more the employer requires the Union to prove. As soon as Inspector Marshall saw the grievor
in the Orillia site, he wanted to know what he was doing there.
This is not an accommodation case. It is a discrimination case with “a double whammy”. The
threat is crucial. It is reasonable to assume that the employer could carry out its threat. The
breach has occurred. The money was lost to the grievor. If the board makes a declaration of
discrimination, there’s a breach of the collective agreement. If there’s a breach of the collective
agreement, damages result. The damages were incurred two years ago, and cannot be
compensated for now by an employment opportunity, as the grievor has a job.
There was evidence regarding pain and suffering.
Regarding the submission that the damages should be restricted to the equivalent of a 6-month
contract, there was no evidence as to whether the 11 or 12 jobs would have been 6-month, 9-
month or full-time.