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HomeMy WebLinkAbout2012-4328.Niyonkuru.13-12-23 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-4328 UNION#2013-0645-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Niyonkuru) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Reva Devins Vice-Chair FOR THE UNION Chris Donovan Dewart Gleason LLP Counsel FOR THE EMPLOYER Lisa Compagnone Ministry of Government Services Legal Services Branch Counsel HEARING December 3 and 4, 2013 - 2 - Decision [1] The Grievor claims that he was dismissed without just cause when the Employer released him from employment with the Ministry of Transportation during his probationary period. He subsequently further alleged that the Employer’s actions were discriminatory on grounds of race and disability. [2] The Employer moved to have the grievance summarily dismissed on the basis that the particulars fail to make out a prima facie case of discrimination or disciplinary dismissal. Facts [3] The Grievor began working for the Ministry as a Transportation Technician on March 19, 2012. On December 4, 2012, the Ministry wrote to the Grievor to advise him that he was being released from employment for failure to meet the requirements of the position. The release letter detailed ongoing deficiencies with the Grievor’s performance and set out the occasions on which these issues had been reviewed with him. The specific areas of concern were attendance, quality of work and task preparation. The Employer further outlined efforts it had made to provide support, training and mentoring opportunities to permit the Grievor to improve his job performance. [4] The Grievor provided two sets of particulars. Initially, he did not include any allegations of discrimination. Rather, he merely identified a number of individuals and alleged that they made malicious reports about him, slandered him, attempted to make him look bad, failed to take into account his explanations before reprimanding him, misrepresented the facts and spied on him. None of these allegations included the details of what was said or done, or precise dates on which the alleged events occurred. He also set out a number of other - 3 - instances where he alleged that others made petty complaints about him or unfairly reprimanded him. He did not provide details of when these incidents occurred, who was involved or, in some cases, what was said or done. [5] The Grievor subsequently provided a second, somewhat more detailed set of particulars in which he alleged that he encountered discrimination on the basis of race and ethnicity and that the Employer failed to accommodate his disability. He also expanded on a number of workplace incidents and offered explanations for conduct that the Employer relied on when it released him from employment. Submissions [6] The Employer submits that the jurisprudence of the Board establishes a very limited opportunity to review the release of a probationary employee. If the Union can establish that the Employer’s decision was a disciplinary dismissal, the dismissal can be reviewed on a just cause standard. Or, the Union must demonstrate that the decision is tainted by bad faith, was unreasonable, discriminatory or there was no rational relationship between the facts and the release. It was submitted that, in either event, the Union has the onus of proof. [7] The Employer argued that in the instant case, the Union restricted its allegations to a claim that the release was a disciplinary dismissal and that it was tainted by discrimination. On that basis, even if all the material facts the Union sets out are accepted as true, the particulars it has provided do not satisfy their legal onus of proof. The particulars do not establish a sufficient basis upon which it can be determined that the Grievor’s release was either disciplinary in nature or discriminatory. [8] In the Employer’s submission, to prove that the release was actually a disguised disciplinary dismissal, the Union must provide material facts to establish that the Employer - 4 - took punitive action that had an adverse consequence on the Grievor. The Employer argued that the Union’s particulars include broad conclusions, speculation and bald assertions but are missing details of who, what, where and when required to ground a conclusion that the release is actually a disciplinary dismissal. Similarly, with respect to the allegation of discrimination, the Employer submits that the Union has not included any material facts that connect the Employer’s decision to release the Grievor with either his race or a failure to accommodate his disability. [9] In the Employer’s submission, most of the Union’s particulars do no more than take issue with the correctness of the Employer’s decision to release the Grievor; they do not go to bad faith, discrimination or whether the decision was disguised discipline. The Employer therefore requests that the grievance be dismissed in its entirety on the basis that the particulars do not disclose a prima facie case. [10] The Employer relied on the following cases: OPSEU (Turcotte) v. Ministry of Solicitor General and Correctional Services, (1999) GSB No. 2196/97 (Marszewski); OPSEU (Blanchette) v. Ministry of Natural Resources, (2007) GSB No. 2005-0798 (Dissanayake); Chyczi v. Ministry of Labour, (2001) PSGB No. P/0017/00 (Maeots); OPSEU (Ross) v. Ministry of Correctional Services, (2002) GSB No. 2690/96 (Herlich); OPSEU (Klonowski et al.) v. Ministry of Finance, (2002) GSB No. 1799/99 (Fisher); OPSEU (Couture) v. Ministry of Government Services, (2010) GSB No. 2008-3329 (Dissanayake); OPSEU (Difederico) v. Ministry of Attorney General, (2009) GSB No. 2008-0868 (Dissanayake); OPSEU (Fitzgerald) v. Ministry of Correctional Services, (1989) GSB No. 1489/88 (Samuels); OPSEU (Halsall) v. Ministry of Agriculture, Food and Rural Affairs, (2009) GSB No. 2007-1045 (Briggs); Peel Law Association v. Pieters, (2013) 2013 ONCA 396 (OCA); Wondimagnetu v. Algonquin College, (2012) 2012 HRTO 276 (Brennenstuhl); - 5 - Marshall v. Dufferin-Peel Catholic District School Board, (2013) 2013 HRTO 256 (Brennenstuhl). [11] The Union submits that the Employer bears the onus in this case and that the Union is not required to make out a prima facie case. In the alternative, it maintains that the particulars are sufficient or, to the extent that they might not be, that the appropriate remedy is an order for further particulars. [12] The Union’s primary submission is that the Employer must demonstrate that it had just cause to dismiss the Grievor. Article 21.1 of the Collective Agreement, which, on its face, extends to all employees, requires that all discipline or dismissals be for just cause. Although Article 21.2 purports to preclude a probationary employee from grieving their dismissal, the Union maintains that current private sector case law renders that provision void. The Union further argues that the reference to discipline or dismiss means that they are distinct concepts and the reference to “dismiss” should be interpreted to include all discharges from employment, not just disciplinary dismissals. [13] In the Union’s submission, the GSB case law is unclear, with confusion arising from the interplay between s. 37(2) of the Public Service Act, which confers a statutory power to release probationary employees for failure to meet the requirements of their position and the Collective Agreement, which does not confer a comparable right on the Employer in relation to members of this bargaining unit. [14] The Union acknowledged that adopting this interpretation would be a departure from the Board’s long standing jurisprudence regarding the release of probationary employees. Notwithstanding the Board’s earlier decisions, the Union argued that the prior cases did not consider the argument it now advances and, in any event, were wrongly decided. - 6 - [15] If the Board determines that the Employer can release a probationary employee without just cause, the Union submits that the Employer still bears the onus of establishing a valid exercise of its right to release the Grievor for failure to meet the requirements of the position. Therefore, in the Union’s submission, the grievance cannot be dismissed for lack of a prima facie case disclosed in the Union’s particulars. [16] In the further alternative, the Union submitted that the particulars are sufficient to meet a prima facie case of discrimination and disciplinary dismissal. The Union acknowledged that there were some gaps in the particulars and that in some instances details were omitted or in others legal conclusions were reached. Nonetheless, it argued that it had provided enough information for the Employer to know the case it must meet and to establish all of the required legal elements. [17] Finally, the Union suggested that even if the particulars were inadequate, the Employer’s motion is extremely technical and formalistic. In the Union’s submission, dismissal of the grievance at this early stage is an extra-ordinary remedy that is not appropriate. It urged the Board to bear in mind that this is in essence a discharge grievance and that the matter should be determined on the merits after the parties have had a full opportunity to present their evidence and arguments. [18] Moreover, it was submitted that the Union is in a position to provide further particulars if the existing particulars are deemed insufficient. Therefore, at a minimum, the Union argued that it should be provided a further opportunity to provide greater clarity and detail in its particulars. [19] The Union referred me to Brown and Beatty, Canadian Labour Arbitration, 4th ed., para. 3:2120 and the following cases in support of its submissions: Parry Sound Social Services - 7 - Admin. Bd. v. OPSEU (2003), 230 D.L.R. (4th) (SCC); Toronto Hydro-Electric System v. CUPE, Local 1 (1987), 30 O.R. (2d) 64 (OCA); Windsor (City) v. CUPE, Loc. 543 (Lefebvre), [2003] O.L.L.A. No. 161 (Williamson); Oshawa and District Assn. for Community Living and CUPE, Loc. 2936-03, [1995] O.L. L.A. No. 64 (Low); North Bay (City) and CUPE Loc. 122, [1989], O.L.L.A. No. 52 (Kates); OPSEU (Blanchette), supra (Dissanayake); Pleet v. Canadian Northern R. Co. (1921), 64 D.L.R 316; Cancer Care Ontario v. Ontario Nurses’ Assn., [2003] O.L.L.A. No. 13 (Keller); Re Spar Aerospace Ltd. And Spar Professional & Allied Technical Employees Assoc. (Metro. Toronto) (1994), 40 L.A.C. (4th) 215 (Brown); Re Rainbow District School Board and Ontario Secondary School Teacher’s Federation (Cole) (2009), 185 L.A.C. (4th) 395 (Devlin); Budget Car Rentals Toronto Ltd. v. United Food and Commercial Workers, Loc. 175(Botan), [2000] O.L.L.A. No. 33 (Davie); OPSEU (Hunt) v. Ministry of Attorney General, [2010] O.G.S.B.A. No. 149 (Abramsky); OPSEU (Deprophetis) v. Ministry of Labour, (2010), 197 L.A.C. (4th) 351 (Dissanayake); Re Corporation of the City of Ottawa and Ottawa Carleton Public Employees’ Union, CUPE, Loc. 503 (2001), 102 L.A.C. (4th) 160 (Hornung); Re City of Toronto and CUPE, Loc. 79 (1997), 147 D.L.R. (4th) 548; Re Stone Lodge and United Food and Commercial Workers, Loc. 175 (1998), 75 L.A.C. (4th) 78 (Williamson); SEIU, Loc. 1 v. Blue Doors Shelter (2013), unreported decision dated November 28, 2013 (Harris). [20] In reply, the Employer argued that the Board has consistently held that a just cause standard of review is only available to probationary employees where their release was a camouflaged disciplinary dismissal. The Board has also determined that it would only deviate from its previous awards where warranted by “exceptional circumstances”: Amalgamated Transit Union (Blake) v. Toronto Area Transit Operating Authority, (1988) - 8 - GSB No. 1276/87 (Shime). The Union in this case has failed to meet that test and the argument that the dismissal of a probationary employee can only be for just cause must be rejected. [21] The Employer also urged me to reject the Union’s submissions that the Employer bears the onus in this case. In the Employer’s submission, the issue before me is whether the release is bona fide or is a camouflaged disciplinary dismissal. The Employer would have the onus of establishing just cause only if the Board first finds that this is a disciplinary dismissal. At most, the Employer might bear an evidentiary onus so that they can be required to call their evidence first. The need for the Employer to call evidence will only arise, however, if the Union has established a prima facie basis to review the release. [22] Lastly, with respect to remedy, the Employer maintained that the Union should not be permitted a further opportunity to provide additional particulars. The issue of particulars has been ongoing for several months and the Union has already been ordered to provide them. They have done so on two occasions, raising serious allegations against the Employer without offering sufficient details of those allegations. Decision [23] The primary issue before me is whether the grievance should be dismissed for lack of particulars. The Union conceded that their particulars were not as detailed as they could be and that in some aspects they are arguably insufficient to support a finding of discrimination or disciplinary discharge. Counsel stated that the Union could provide greater detail if the Board determined that was necessary. [24] Even without the Union’s concession, I would have little difficulty in concluding that the particulars are insufficient. They include bald assertions and speculation with very few - 9 - details of who, what, when or where to support those conclusions. Moreover, it is not at all clear to me which of the allegations relate to discrimination and which are offered to support a disciplinary discharge. Nor is it apparent how some of the alleged events are connected to the legal conclusions that they purport to establish. [25] The question that remains, however, is what flows from a finding that the particulars are insufficient in this case? The Union argued that the Employer has the onus and therefore the matter cannot be dismissed without hearing evidence. In the alternative, it argued that dismissal of the grievance would be inappropriate in any event. [26] Before analysing the submissions, it is helpful to briefly review the relevant statutory authority to release a probationary employee and the Board’s jurisprudence with respect to the ability to review that decision. Section 37(2) of the Public Service of Ontario Act1 provides that while on probation a “public servant may be dismissed for failure to meet the requirements of his or position”. [27] The collective agreement does not specifically enumerate management’s right to release an employee during their probationary term for failure to meet the requirements of the position. Although, under Article 2 – Management’s Rights, it does reserve to management the right to manage the business and direct the workforce. In contrast, Article 21.1 expressly limits the Employer’s right to discipline or dismiss employees for just cause. Article 21.2 goes on to provide that “it is understood that nothing in Article 21.1 confers on a probationary employee the right to grieve or arbitrate his or her dismissal”. Article 22.8.1 similarly states that a “probationary employee who is dismissed or released shall not be entitled to file a grievance”. 1 S.O 2006, Chapter 35, Schedule A. - 10 - [28] Notwithstanding the apparent bar to grieving their dismissal or release, the Board has consistently held that it has jurisdiction to review the release of probationary employees, albeit on a very narrow basis. If the “release” is bona fide, in that it was non-disciplinary, made in good faith, the reasons for release were reasonable and there was a rational relationship between the facts and the release, then the Board will not intervene. If, however, it is lacking the indicia of a good faith release, or is otherwise found to be a camouflaged disciplinary dismissal, then the Board has jurisdiction to review the discharge: Sheppard2, Turcotte, supra; and Blanchette, supra. [29] Turning back to the Employer’s motion before me. The Union’s primary argument was that the Employer could only dismiss the Grievor for just cause and therefore it had the onus of proof in this case. The Union recognised that the Board’s jurisprudence has distinguished between releases for failure to meet the requirements of the position and disciplinary dismissals that were reviewed on a just cause standard. Nonetheless, the Union argued that the collective agreement does not specifically provide for probationary releases. It argued that all dismissals are accordingly captured under Article 21.1 and are entitled to just cause protection. The Union did not rely on any changes to the governing legislation, the relevant case law or new wording in the collective agreement. Counsel simply argued that the Board did not consider all relevant arguments in its prior decisions or that they were wrongly decided. [30] I cannot accept the Union’s submission. This Board has long held that a decision of this Board cannot subsequently be overturned on the standard of manifest error. The principle was enunciated in OPSEU (Blake), supra: “ … each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the 2 OPSEU (Sheppard) v. Ministry of Government Services (1988), GSB. No. 2492/86 (Slone). - 11 - private sector is not appropriate for the Grievance Settlement Board.” The Board went on to conclude that there might be very limited circumstances when a decision can be reviewed, but that it would require “the party seeking review to establish exceptional circumstances.” The Union in this case has not advanced any exceptional circumstances and has merely suggested that the earlier decisions are wrong. I do not necessarily agree that they were wrongly decided, however, even if I did, it is clear that I cannot depart from them on that basis alone. [31] The Union also argued that the Employer had the onus in any event to call evidence to establish that their decision was a bona fide release. Moreover, in a case such as this where the Grievor has lost his employment, it would be inappropriate to dismiss the grievance on a technical basis before the Union had the opportunity to call evidence. Regardless of who has the onus or the sufficiency of the particulars, the Union argued that the matter should be heard on the merits. The Employer submitted that while it might have an evidentiary onus, the legal onus was still that of the Union’s. Therefore, it argued that the Employer should still be entitled to dismissal on a preliminary motion where the material facts alleged by the Union, if accepted as true, do not establish a sufficient basis to allow the grievance. [32] Given the deficiencies in the Union’s particulars, I am somewhat sympathetic to the Employer’s argument. The Employer is entitled to know the case it must meet and should not be required to defend against unfounded allegations. Nonetheless, I agree with the Union’s submissions that dismissal at this point is not appropriate for a number of reasons. - 12 - [33] As a general observation, I would reiterate the remarks that I made in a previous decision when I agreed with Vice Chair Abramsky in OPSEU (Singh)3 that the relief currently being sought by the Employer is an extra-ordinary remedy that should only be available in the most exceptional circumstances: As a matter of general principle, the arbitration process is designed to ensure adjudication of the dispute between the parties on the merits, based on all of the relevant evidence. A decision to summarily dismiss or allow the grievance, or to preclude a party from calling relevant evidence should not be ordered lightly. 4 [34] My hesitation to dismiss the grievance at this preliminary stage is heightened by the Union’s submission that it can provide further details of the allegations that would remedy any deficiencies in their current particulars. In my view they should be provided the opportunity to do so. [35] Additionally, I am not satisfied that the Union bears the sole burden of proof in this case. To the extent that the Board has addressed the issue of onus, it concluded that it should be borne, at least in part, by the Employer. Vice Chair Fisher in OPSEU (Agboka)5 issued the following preliminary ruling: It is the Ministry which must prove the defence of Section 22(5) of the Public Service Act, which includes proving that the Grievor was given a fair assessment, that it was done in good faith, and that there was a rational connection between the facts and the decisions. (Sheppard 2492/86 Slone). This information is clearly in the possession of the Ministry, thus the Ministry should go first. Furthermore, since we are examining the Ministry’s process, they should go first. [36] The Employer maintained that, at most, Agboka held that the Employer has an evidentiary onus with respect to some aspects of the case. Since the Board referred to the Ministry’s obligation as proving their “defence”, counsel for the Employer urged me to interpret this 3 OPSEU (Singh) v. Ministry of Community Safety and Correctional Services, [2005] O.G.S.B.A. No. 82, at para. 14. 4 OPSEU (Hall) v. Ontario (LCBO) (2013), GSB No. 2012-0551 at para. 28. 5 OPSEU (Agboka) v. Ministry of Finance (1993), GSB No. 729/90 (Fisher). - 13 - decision as implying that the legal onus remains on the Union. The Employer further relied on the decision of Vice Chair Dissanayake in OPSEU (Blanchette) where he concluded: … there may be evidence that leads to a conclusion that the purported release was in fact a disciplinary dismissal. However, it is up to the union to lead that evidence, if it exists. The Employer is not required to prove a negative.6” [37] In my view the Employer’s argument does not fully address all of the elements that the Board must ultimately consider. The issue on the merits is whether the Employer’s actions constitute a bona fide release or are more properly characterised as a disciplinary dismissal. If it is the former, the Board will not review the decision any further. If it is a disciplinary dismissal, the employer will be held to a just cause standard. [38] In determining this issue the Board has examined whether the Union has adduced evidence of bad faith or evidence to suggest that the purported release was actually a punitive response for culpable conduct. However, it has also required the Employer to call sufficient evidence to satisfy the Board that the release was not unreasonable and was rationally related to the pertinent facts. Thus, while the Union has the onus of proving that the Employer engaged in discrimination or that the release was a disguised disciplinary dismissal, in the sense that it was a punitive response to the probationer’s conduct, the Board has also been clear that the Employer has the onus of establishing that the release was valid. [39] The Board explicitly adopted this two-stage approach in Blanchette. Vice Chair Dissanayake first concluded that the Union had not established that the dismissal was disciplinary. He then went on to review the grievance relating to the release and, citing Agboka, found that at that stage of the analysis the onus of proof was on the employer to 6 OPSEU (Blanchette) v MNR, supra, at para. 8. - 14 - demonstrate that the release was a valid exercise of its rights7. That is, that it was made in good faith, was reasonable and rationally connected to the facts. [40] In light of my finding that the Employer has a limited onus of proof in this case, it would clearly be inappropriate to dismiss the grievance as a preliminary matter. The Employer’s preliminary motion is therefore dismissed and the Employer is ordered to call their evidence first. [41] However, based on the Union’s submissions that it can provide further details of the allegations at issue, the Union is also ordered to provide further particulars within 21 days of this decision. Dated at Toronto, Ontario this 23th day of December 2013. Reva Devins, Vice-Chair 7 Supra, at par. 28.