HomeMy WebLinkAbout2009-1268.Hottinger.14-06-25 DecisionCrown Employees
Grievance Settlement
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Commission de
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GSB#2009-1268; 2010-1518; 2010-1519; 2010-1520; 2011-0957;
2011-3211; 2011-3212; 2012-3211; 2012-3212; 2012-3213;
2012-3214; 2012-3215; 2012-3216; 2012-3217; 2012-3218
UNION#2009-0368-0090; 2010-0368-0064; 2010-0368-0065; 2010-0368-0066;
2011-0368-0071; 2011-0368-0226; 2011-0368-0227; 2012-0368-0173;
2012-0368-0174; 2012-0368-0175; 2012-0368-0176; 2012-0368-0177;
2012-0368-0178; 2012-0368-0179; 2012-0368-0180
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Hottinger) Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Mary Lou Tims Vice-Chair
FOR THE UNION John Brewin
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
Counsel
FOR THE EMPLOYER George Parris
Ministry of Government Services
Legal Services Branch
Counsel
HEARING June 11 and 12, 2014
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Decision
[1] I have before me fifteen grievances filed by the grievor, Mr. Michael Hottinger.
[2] The Employer advanced a motion asking the Board to dismiss four of the grievances,
arguing that particulars provided by the Union in relation to such grievances disclose no
prima facie violation of the parties’ collective agreement. Counsel both made full
submissions on this motion and my decision is set out herein.
[3] One of the four grievances (GSB 2009-1268), dated July 7, 2009, alleges that the Employer
violated the grievor’s rights under articles 2, 3, and 22.10 of the collective agreement “and
any other articles and policies.” Also addressed by the Employer’s motion are three
grievances (GSB 2010-1518, 1519, and 1520) each dated July 16, 2010, alleging in part the
violation of articles 2, 3, 22.10 and 60.1 of the collective agreement and “any other articles
or policies,” including, but not limited to the Workplace Discrimination and Harassment
Prevention Policy (“WDHP”). The July 2010 grievances assert in part that the Employer
“failed their duty of care,” “facilitated, condoned, and promoted sexual harassment against
the grievor,” was “intentionally blind and dismissive to ongoing/repeated harassment,”
“engaged in subversive reprisal damaging the grievor,” “depraved rights under colour of
sovereign authority” (sic), poisoned the grievor’s work environment, and “ignored their
obligations and responsibilities under their own policies.” The July 7, 2009 grievance and
the three July 16, 2010 grievances will be referred to herein as “the four grievances.”
[4] The Employer put the Union on notice that it would take the position in these proceedings
that alleged noncompliance with the WDHP process cannot form the basis for a grievance.
The parties did not seek to argue this on a preliminary basis.
[5] Those provisions of the parties’ January 2009 – December 2012 collective agreement
referenced in the four grievances are set out as follows:
ARTICLE 2 – MANAGEMENT RIGHTS
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2.1 For the purpose of this Central Collective Agreement and any other Collective
Agreement to which the parties are subject, the right and authority to manage the
business and direct the workforce . . . . shall be vested exclusively in the Employer.
It is agreed that these rights are subject only to the provisions of this Central
Collective Agreement and any other Collective Agreement
ARTICLE 3 – NO DISCRIMINATION/EMPLOYMENT EQUITY
3.1 There shall be no discrimination practised by reason of race, ancestry, place of
origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital
status, family status, or handicap, as defined in section 10(1) of the Ontario Human
Rights Code. . . .
ARTICLE 22 – GRIEVANCE PROCEDURE
. . .
22.10 SEXUAL HARASSMENT
22.10.1 All employees covered by this Agreement have a right to freedom from
harassment in the workplace because of sex by his or her Employer or agent of the
Employer or by another employee. Harassment means engaging in a course of
vexatious comment or conduct that is known or ought reasonably to be known to be
unwelcome.
ARTICLE 60 – HEALTH AND SAFETY AND VIDEO DISPLAY
TERMINALS
60.1 The Employer shall continue to make reasonable provisions for the safety and
health of its employees during the hours of their employment. . . .
[6] For purposes of the Employer’s motion, the parties referred to and relied upon an April 9,
2014 Statement of Particulars and a May 5, 2014 Supplementary Statement of Particulars
provided to the Employer by the Union. Incorporated in the particulars are a number of
documents. These largely pertain to alleged incidents taking place February 23, 2009 and
June 1, 2010, and the alleged historical context in which the grievances arise. For purposes
of the motion, the Employer accepted the Union’s particulars as proven fact.
[7] I reproduce in part as follows the Union’s April 9, 2014 particulars, having in some
instances substituted initials for names:
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1. The Grievor is a Correctional Officer. His start date was June 10, 1986. Since
March, 2003 he has been employed at the Central East Correctional Centre. Prior to
that he was employed at Millbrook Correctional Centre.
2. A series of grievances are before the Board. Most are related to a long history in
which the Grievor was subjected to persistent assaults on his personal reputation by a
number of co-workers and others including some individual members of the
management group. The Ministry wilfully or negligently failed to deal with the
harassment and defamation to which he was subjected and wrongfully denied him
access to information which would have permitted the Grievor to take the various
steps he had available to him to protect himself.
3. The story at the heart of the grievances began in 1998. A co-worker at Millbrook .
. . repeatedly made false statements about the Grievor alleging among other things
that he was stalking a female Correctional Officer . . . . The allegations were not true.
They hurt and defamed the Grievor.
4. For a number of years the Grievor was unable to get proof of who made the
statements. . . .
5. M had been a Correctional Officer at Millbrook. . . . While at Millbrook the
Grievor came to be on friendly terms with M. . . . M made a number of unwanted
sexual advances on the Grievor. When he rejected those advances, she turned on him
and with other employees . . . began circulating reports and statements that brought
the Grievor’s reputation into disrepute. When he tried to obtain information about
these reports, rumours and statements he was thwarted by management. Eventually
he obtained enough information to file a WDHP complaint. He was later met by a
counter-complaint. . . .
6. The grievances can be grouped on the dates they were filed as follows:
a. July 7, 2009: this grievance . . . alleges that the Employer was failing to deal with
his harassment complaint;
b. July 16, 2010: in these grievances . . . the Grievor focuses on his allegation that the
Employer was failing in its duty of care towards him and its continuing failure to
protect him from harassment, including sexual harassment;
. . .
11. Particulars of the July 7, 2009 grievance. . . .
a. This grievance alleges that the Employer failed to deal with his harassment
complaint;
b. On February 23, 2009 an incident occurred involving Correctional Officer B and
M. The incident and matters arising from the incident included elements of sexual
harassment of the Grievor. They formed the basis of a workplace harassment
complaint;
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c. Instead of dealing with the complaint and taking effective action, the Employer
took no action. This was initially reported to the Grievor in a letter to him dated April
28, 2009 from Dwight Goden, the Acting Deputy Superintendent;
d. The Grievor wrote to the Deputy Minister and the Regional Director on May 18,
2009 about the institution’s failure to act. He was advised by letter dated June 11,
2009 that no action was being taken at their level;
e. The Grievor then proceeded to launch this grievance.
12. Particulars of the July 16, 2010 grievances:
a. These grievances allege that the Employer failed in its duty of care towards him
and its continuing failure to protect him from harassment, including sexual
harassment;
b. On June 1, 2010, M reacted towards the Grievor’s presence in the general area of
her office during the performance of his duties in a way that continued her negative
behaviour towards him. This behaviour constituted harassment and included
elements of sexual harassment. It continued the humiliation of the Grievor in front of
management and his co-workers. Management did nothing to protect him.
c. An occurrence report was filed by the Grievor about the incident. Nothing was
done to the knowledge of the Grievor or the Union about M’s conduct.
[8] The Union’s May 5, 2014 Supplementary Statement of Particulars, with initials substituted
for names, is set out in part as follows:
1. . . . Throughout the years the Grievor was frequently made aware in many ways by
co-workers and staff of rumours that were constantly being circulated about him and
was exposed to negative graffiti about him. It was almost a daily occurrence for him.
. . .
7. Re Para 11: the incident on February 23, 2009 was described to the Employer in
the Grievor’s WDHP complaint of March 12, 2009 and described in the Employer’s
letter to the Grievor dated April 28, 2009. . . .
8. Re Para 12: the details of . . . M’s conduct were described in the occurrence report
filed June 1, 2010 . . . . Management generally failed to prevent her conduct as
outlined in these Particulars.
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[9] Incorporated in the Union’s particulars is an undated WDHP complaint regarding the
alleged February 23, 2009 incident. The grievor asserted in part therein that such complaint
was “submitted with my belief that this matter is a continuation extension of M WDHP
complaint IIU944-07-05 against me. . . .”
[10] April 28, 2009 correspondence from D. Goden, Deputy Superintendent Administration, to
the grievor, incorporated in the Union’s particulars, states in part:
I am writing you in response to your Workplace Discrimination and Harassment
Prevention (WDHP) policy complaint of March 12, 2009. You alleged that M
sexually harassed you contrary to the WDHP policy.
More specifically, you stated that on February 23, 2009 B informed you that he had
gotten into trouble with M because of personal interaction that you had with him
earlier in the day, while in the presence of M. You stipulated that on a separate
occasion that day you walked past B . . . while he was conversing with M and that M
later reported B for acknowledging/greeting you. . . . In your complaint, you stated
that in light of M’s actions you fear for your safety and security, however, during our
meeting of April 22, 2009 you could provide no actual incidents that had occurred to
support your safety and security were jeopardized.
During our meeting, you confirmed that since 2005 your previous duty assignment in
Unit #1 and current position of General Duty Officer has worked well to eliminate
interaction with M . . .
I have reviewed your concerns and the (WDHP) complaints. . . . I have found that
M’s interaction with B does not constitute sexual harassment towards you. I further
believe that this matter is not a continuation/extension of M’s WDHP complaint
IIU944-07-05.
[11] In May 18, 2009 correspondence to Mr. Goden, incorporated in the Union’s particulars, the
grievor stated in part as follows:
. . . My position regarding my complaint is that M’s behaviour was retaliation and/or
retribution for her IIU944-07-05 complaint. . . .
There has been no direct contact between M and I since 2005, yet she still
demonstrates an uncontrolled anger. Therefore, M’s behaviour has to be derived
from our last events together, her failed sexual solicitation, her unfounded criminal
allegations, her failed WDHP complaint . . . . Not talking to her friends because her
friends talk to me, is vile, vindictive, petty, a poisoning of my work environment . . .
this behaviour negatively alters my working relationship with me peers. (sic)
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. . .
There has never been an agreement, resolution or determination in these matters and
therefore all issues remain open. The judgement against the employer for failing its
duty of care does not release you from your obligations in this matter and all
subsequent matters.
[12] The grievor stated in part as follows in a June 1, 2010 Occurrence Report incorporated in
the Union’s particulars:
This report is submitted to identify and outline my General Duty assignment . . . on
Tuesday, June 01, 2010 as per OM-16 Campbell’s instructions.
At 1400 hours I attended the g-wing of three pod. . . . My assignment to this area
lasted from 1400 -1440 hours a total of 40 minutes . . . . M . . . left the area
approximately 10 minutes before my assignment was completed. . . .
At no time was there any interaction between M and myself. M has a history of
sexually harassing me; she has a history of making unfounded allegations both to the
police and my employer . . . .
M’s complaint to the employer on this date June 01, 2010 continues her continued
attempts to control and manipulate my workplace, poisoning my work environment,
and serving to re-victimize me. . . .
M should have been removed from this workplace after her initial attack against me
in July 2005. IIU-944-07-05, the employer has never had an explanation for why she
was not removed. (sic) . . . I do not have to tolerate . . . M’s repeated attempts of
bullying me….
[13] For purposes of the Employer’s motion, the parties filed the Board’s decision in OPSEU
(Hottinger) and Ontario (Ministry of Community Safety and Correctional Services) (July
16, 2008, G.S.B. 2006-2323, Briggs), referred to herein as “the 2008 decision.” The Board
had before it there a November 23, 2006 grievance filed by Mr. Hottinger alleging that the
Employer “failed their duty of care.” According to the decision, such grievance was filed
after a co-worker, who Counsel agreed was M, “attempted to institute a WDHP complaint.”
Counsel stipulated before me that a 2005 investigation of M’s complaint against the grievor
was at least “an aspect” of the grievance before the Board at that time. The Vice-Chair
noted that the parties agreed to participate in the Expedited Mediation-Arbitration process
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“in accordance with the negotiated Protocol.” She stated that such Protocol provides that
“decisions will be issued…without reasons,” and that “the decision is to be without
prejudice and precedent.” Vice-Chair Briggs commented that the grievor “made many
remedial requests.” She noted that the “parties had significantly disparate views of the
facts,” and ordered that “the Employer pay to the grievor $5000.00 with respect to his
various claims for damages,” stating that this “will dispose of this matter in full.”
[14] The Employer argued that the Board should dismiss the July 7, 2009 grievance and the three
July 16, 2010 grievances on the basis that the particulars provided by the Union disclose no
prima facie violation of the parties’ collective agreement.
[15] In Counsel’s submission, the facts asserted by the Union through its particulars and
incorporated documents, if accepted as true and proven, must demonstrate that the grievor
was harassed and that the Employer ought to have “done more than it did.” He emphasized
that it is not sufficient to merely allege sexual harassment, but that facts that prove such
allegation must be particularized.
[16] The Employer took the position that the July 2009 and the July 2010 grievances rest on the
particularized incidents of February 23, 2009 and June 1, 2010, and Counsel urged me to
assess whether the particulars of such incidents demonstrate sexual harassment as alleged.
In Counsel’s submission, even if B “got into trouble” with M on February 23, 2009 because
he interacted with the grievor, this cannot be regarded as sexual harassment of the grievor.
[17] Similarly, in the Employer’s submission, even if M “reacted” to the grievor’s presence in
the “general area of her office” and complained about the grievor on June 1, 2010, this does
not demonstrate a prima facie case of sexual harassment.
[18] The Employer was clear that it disputes in some respects the Union’s characterization of the
nature and scope of Employer obligations when sexual harassment is reported. Counsel
suggested, however, that we “don’t get there” in these cases, as the events reported to the
Employer in 2009 and 2010 do not “fit within a description of sexual harassment” and did
not “trigger” the need for an Employer response.
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[19] In the Employer’s submission, neither the 2009 nor the 2010 grievances disclose a breach
of the collective agreement, the Human Rights Code or any policy. It asked me to find that
the Union has failed to demonstrate a prima facie case, and to dismiss the four grievances.
The Employer relied upon the decision in OPSEU (Difederico) and Ontario (Ministry of
Attorney General) (November 25, 2009, GSB 2008-0868, Dissanayake) in support of its
position.
[20] The Union, in response, referred to the Board’s decision in OPSEU (Evangelista et al) and
Ontario (Ministry of Attorney General), [2011] O.G.S.B.A. No. 88 (Harris) and urged me to
accept that it is “in only the clearest of cases” that the Board should “decline to hear a matter
before concluding it has no jurisdiction.” (para 12) In Counsel’s submission, the
Employer’s motion should be denied.
[21] The Union addressed the July 7, 2009 grievance, and alleged that the Employer failed to
deal with the grievor’s WDHP complaint that the February 2009 incident set out in the
particulars was “experienced by the grievor” as “continued” sexual harassment. In the
Union’s submission, in these circumstances, the Employer was obliged to administer the
WDHP in an efficient and fair manner and failed to do so. The Union referred to and relied
upon the following authorities in support of its position that the Employer was so obligated:
Toronto Transit Commission and ATU (Stina) (2004), 132 L.A.C. (4th) 225 (Shime);
OPSEU (Ranger) and Ontario (Ministry of Community Safety and Correctional Services),
[2010] O.G.S.B.A. No. 18 (Leighton); OPSEU (Louis) and Ontario (Ministry of
Transportation) (June 3, 2014, GSB 2008-3753, Harris); Clarendon Foundation and
OPSEU, Local 593 (Mitchell) (2000), 91 L.A.C. (4th) 105 (Sarra) and Goodyear Canada
Inc. and United Steelworkers of America, Local 189 (Tompkins) (2002), 107 L.A.C. (4th)
289 (Goodfellow).
[22] The 2010 grievances arise out of a June 1, 2010 incident addressed in the particulars,
including the filing of a complaint by M against the grievor. This, in the Union’s view,
constituted an act of continued harassment, including “elements of sexual harassment” and
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the Employer both failed to prevent it and to deal with it once reported through the grievor’s
June 2010 Occurrence Report.
[23] The Union accepted that it must demonstrate that the Employer’s “obligation to respond”
was triggered on the facts particularized. It argued that the alleged February 23, 2009 and
June 1, 2010 incidents as particularized in and of themselves gave rise to obligations on the
Employer’s part which the Employer failed to meet. It asked me to deny the Employer’s
motion on this basis and to permit the Union to adduce evidence in support of the grievances
in issue.
[24] Further, the Union took the position that the particularized facts before me must be viewed
contextually, taking into account the grievor’s November 23, 2006 grievance, the facts
giving rise to such grievance and the Board’s 2008 decision in that matter. The Union
acknowledged that it is not open to it to relitigate matters decided by the Board in earlier
proceedings. It suggested, however, that the February 2009 and June 2010 incidents
reported by the grievor must be considered in the historic context in which they allegedly
arose. The Union argued that the Employer should have “recognized the Briggs award and
the history leading to it” in addressing the incidents reported by the grievor in 2009 and
2010, and that I must also do so here. Counsel submitted that the incidents reported by the
grievor, when considered in such context, demonstrate continued sexual harassment and a
failure of the Employer to respond as required.
[25] In Counsel’s submission, the Board’s 2008 decision is relevant “to support the grievances”
before me, and “the extent to which the Briggs decision” to award damages to the grievor
validates his claims is a matter of weight. The Union argued that the Board’s damages
award must be considered as important “context” here, and is relevant to assessing the
adequacy of the Employer’s response to the incidents reported by the grievor in 2009 and
2010. In the Union’s submission, the Employer was aware of problems between the grievor
and M, and of the Board’s 2008 award. Such context, the Union argued, should have been a
“flag” for the Employer when it received the grievor’s reports at issue here and should have
informed the Employer’s response at the time.
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[26] The Union acknowledged that the Board’s 2008 decision was described by the Vice-Chair
as “without prejudice and precedent,” and it accepted that the parties engaged in the
mediation-arbitration process without any admission of wrongdoing. In the Union’s
submission, the circumstances under which the decision was issued are ultimately a matter
of weight, however, to be determined in the context of a full hearing of the merits of the four
grievances.
[27] The Union therefore argued that the Employer’s motion must be denied, insofar as the facts
asserted through the Union’s particulars demonstrate a prima facie case that should be heard
by this Board. The Union took the further position that the Board’s 2008 decision is a
contextual factor properly considered and relied upon in determining the motion before me.
In Counsel’s submission, it should “stop the Board from dismissing the grievances out of
hand.” While Counsel was clear that the Union will seek in these proceedings to adduce “in
a limited way” evidence of the history leading up to the 2008 award, he urged me to
determine the admissibility of such evidence only as the hearing proceeds.
[28] The Employer reiterated in response its position that the particulars provided by the Union
demonstrate no prima facie violation of the collective agreement. It further argued that the
facts underlying the Board’s 2008 decision, the fact that an earlier grievance was filed, and
the 2008 decision itself cannot be used to “prop up subsequent events as meaning more than
they would mean on their own.” These are not, in Counsel’s submission, matters to be
determined only “as the case goes on.” Counsel referred to the following authorities in
support of the Employer’s position: Beausoleil v. Ontario (Community Safety and
Correctional Services), 2013 HRTO 1553; OPSEU (Ross) and Ontario (Ministry of
Municipal Affairs and Housing) (June 1, 2010, GSB 1981-0407, Gray); Lof Glass of
Canada Ltd. and CAW-Canada, Local 2225 (Hotrum) (1995), 47 L.A.C. (4th) (Petryshen);
and OPSEU (Patterson ) and Ontario (Ministry of Children and Youth Services) (December
5, 2006, GSB 1989-1546 et al, Abramsky).
[29] The Employer emphasized that the 2008 decision was issued in accordance with a
negotiated protocol in which the parties agreed to participate. As set out in the Board’s
award, the protocol contemplated that the decision issued would be without reasons and
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without prejudice and precedent. The Vice-Chair was clear that her decision disposed in
full of Mr. Hottinger’s November 23, 2006 grievance.
[30] In the Employer’s submission, the Union now asks me to “peer behind” the Board’s 2008
decision insofar as it suggests that such decision should have “informed” the Employer’s
response to the grievor’s reports giving rise to the 2009 and 2010 grievances before me.
Counsel argued that to permit the Union to refer to and rely upon a “without prejudice and
precedent” decision that fully determined the matter then before the Board to “bolster” later
grievances effectively invites the relitigation of matters already decided by the Board and
disregards the parties’ agreement that such decision would be of a without prejudice nature.
To accept the Union’s position here would, in the Employer’s view, do labour relations
harm, and discourage participation in the expedited mediation–arbitration process described
in the 2008 award. In effect, Counsel argued, the Union asks me to determine the issues
raised by the grievances before me, by revisiting matters addressed and determined through
the Board’s earlier decision. He suggested that “what permeates these grievances is the
grievor’s inability to accept that the matters before (Vice-Chair) Briggs have been disposed
of.” The Employer suggested that if the Union sought a decision relating to the grievor’s
2006 grievance that would be with prejudice and of precedential effect, it ought not to have
agreed to participate in the process described by the Vice-Chair in the Board’s 2008
decision.
[31] While the Employer alluded to the possibility that certain “historical evidence” may be
properly admitted in these proceedings for other limited purposes, Counsel argued that it is
not open to the Board to draw conclusions regarding the alleged events giving rise to the
2009 and 2010 grievances by revisiting matters already grieved and decided through a
decision that the parties agreed would be issued on a without prejudice basis. The Employer
asked me to find that the grievor’s November 23, 2006 grievance, the facts giving rise to it,
and the decision that fully disposed of such grievance are not properly considered in
determining its motion.
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[32] In deciding the Employer’s motion, I must determine whether the facts asserted by the
Union in support of the July 2009 and July 2010 grievances, if accepted as true, are capable
of substantiating the violations alleged by the grievor.
[33] The Union asserted through its particulars that the grievor experienced “elements of sexual
harassment” through incidents occurring on February 23, 2009 and June 1, 2010.
[34] The Employer argued that the alleged incidents particularized by the Union cannot be
viewed as constituting sexual harassment, and that therefore, the Employer’s alleged failure
to address and respond to the grievor’s 2009 and 2010 reports demonstrates no prima facie
violation of the collective agreement as alleged.
[35] The Union acknowledged that it must demonstrate that the Employer’s alleged “obligation
to respond” was in fact “triggered” on the facts, but argued that the February 23, 2009 and
June 1, 2010 incidents as particularized constituted sexual harassment and gave rise to
obligations on the Employer’s part which the Employer failed to meet.
[36] The Union’s particulars assert in part that the grievor filed a WDHP complaint in which he
reported to the Employer that a fellow employee advised him on February 23, 2009 that he
had “gotten into trouble with” M because of personal interaction he had with the grievor
earlier that day.
[37] The Union further asserted through its particulars that the grievor filed an Occurrence
Report on June 1, 2010 in which he reported that M left the work area to which the grievor
was assigned ten minutes before his assignment was completed and that M filed a complaint
against the grievor that same day.
[38] I accept the Employer’s submission that even when the Union’s particulars regarding the
alleged February 23, 2009 incident are viewed in their entirety and accepted as true, they do
not demonstrate prima facie sexual harassment or “elements of continuing sexual
harassment” as alleged.
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[39] I accept as well the Employer’s submission that even when the Union’s particulars
regarding the alleged June 1, 2010 incident are viewed in their entirety and accepted as true,
they do not demonstrate prima facie harassment, including “elements of sexual harassment”
as alleged.
[40] I therefore accept the Employer’s submission that the Union’s particulars, when viewed in
their entirety and accepted as true, fail to demonstrate that the Employer’s alleged “duty to
respond” was in fact “triggered” and do not demonstrate a prima facie case to be met.
[41] The Union, however, urged me to consider contextually the particulars of the grievances
before me.
[42] I recognize and accept that context may be properly considered in appropriate circumstances
and within appropriate parameters in addressing a complaint of harassment.
[43] The Union here suggested that the Employer’s response to the grievor’s 2009 WDHP
complaint and 2010 Occurrence Report should have been “informed” by the Board’s 2008
decision, and that I too must consider such decision as context in deciding the motion before
me.
[44] It may well be, to the extent that this was argued before me, that the bare fact that a
November 23, 2006 grievance was filed in which the grievor alleged that the Employer had
“failed their duty of care” and the bare fact that such grievance was “disposed of in full”
through the Board’s July 16, 2008 decision may be properly referred to and relied upon as
“context” in determining whether the grievances before me disclose a prima facie case.
[45] It is not open to the Union, however, to refer to and rely upon the Board’s 2008 decision
itself, to provide “context” as the Union suggests, or to “bolster” the 2009 and 2010
grievances before me.
[46] The Board clearly set out in its 2008 decision that the parties agreed to participate in an
expedited mediation-arbitration process in accordance with a negotiated protocol. The Vice-
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Chair noted that such protocol provided in part that the decision issued was to be without
prejudice and precedent. The decision was rendered accordingly, “disposing fully” of the
matter before the Board.
[47] I accept the Employer’s submission that to permit the Union in these circumstances to even
in part “ground” the 2009 and 2010 grievances before me in the Board’s 2008 decision
would be to disregard the parties’ agreement that such decision was to be rendered on a
without prejudice basis. I agree with the Employer that there are compelling labour
relations reasons to hold the parties to their agreement in this regard. If either party sought a
precedential decision issued with prejudice, it ought not to have agreed to participate in the
expedited mediation-arbitration process described by the Vice-Chair in her 2008 decision.
Having done so, however, it is not open to the Union to now assert that the Employer’s
response to the grievor’s 2009 WDHP complaint or his June 2010 Occurrence Report
should have been “informed” by such decision or should be judged here on such basis.
[48] The Union was clear that it would also seek in these proceedings to rely on “factual history
leading to” the Board’s 2008 decision and that it would argue that this should have informed
the Employer’s response to the alleged incidents reported by the grievor in 2009 and 2010.
The Union argued that the parties’ dispute as to whether it is open to the Union to rely on
such evidence would be best determined as the hearing proceeds, and that the Employer’s
motion should be denied.
[49] To the extent that the Union asks me to defer a decision as to whether it may rely “in a
limited way” on the “history” giving rise to the grievance decided by the Board in 2008 in
support of the grievances before me, and to dismiss the Employer’s motion at this time, I am
not prepared to do so.
[50] Rather, I accept the Employer’s position that inasmuch as the Union seeks to support the
four grievances in issue here through reliance on such “history, it is not open to the Union to
do so where the Board considered and disposed in full of the matter before it.
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[51] While I recognize that the Board in OPSEU and Ministry of Children and Youth Services
(Patterson), supra, was asked to determine whether the Union could rely on settled matters,
the Vice-Chair’s comments are nonetheless apt in the circumstances here as well:
Based on the facts and case law, I conclude that the Union may not rely on the settled
matters in the manner proposed. The conclusion is based on the critical importance
of settlements. In OPSEU (Waraich), supra at p. 15, the Board refused to admit
evidence regarding settled matters because to do so “could serve to undermine the
parties’ confidence in final settlement and their legitimate expectations that settled
matters will not reappear in some different guise.” Similarly, in OPSEU (Dale),
supra at p. 8, the Board stated that “once a matter is settled, the expectation is that the
matter is resolved and will not reappear in some different guise.”
This reasoning applies even though the Union is seeking to rely on the settled matters
solely to provide the Board with the nature and extent of her earlier grievances and
history. In my view, this is a back door approach to introducing evidence which
might then prejudice the Employer or require the Employer to defend its actions. If
the Union is allowed to lead evidence on the details of these settled matters, there is a
real risk that the Employer will be prejudiced by leaving such claims unanswered, or
it will have to defend itself. This would significantly prolong the hearing, and, even
more importantly, negate the benefit of the settlement for the Employer. . . . It is, in
my view, a back door approach to the introduction of contentious evidence which the
settlement of these matters precludes. (pp. 10 and 11)
[52] In deciding the Employer’s motion, I accept that my determination must be made on the
basis of the Union’s particulars in their entirety, accepted as true. It may be that such
particulars are properly viewed in the context of the bare facts that the grievor filed a 2006
grievance alleging that the Employer “failed their duty of care” and that such grievance was
disposed of in full by the Board’s 2008 decision. In the circumstances before me, however,
it is not open to the Union to “bolster” the grievances before me through reliance on the
Board’s 2008 decision itself or the “history leading up to the decision.”
[53] Having so considered the Union’s particulars in relation to the four grievances in issue here,
I find that they disclose no prima facie case to be met by the Employer.
[54] Accordingly, the Employer’s motion is upheld and the July 7, 2009 grievance and the three
July 16, 2010 grievances are dismissed.
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[55] The hearing will continue as scheduled with respect to the other eleven grievances before
me, over which my jurisdiction is retained.
Dated at Toronto, Ontario this 25th day of June 2014.
Mary Lou Tims, Vice-Chair