HomeMy WebLinkAbout2012-1012 Brydges et al 14-11-14 DecisionCrown Employees
Grievance Settlement
Board
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Commission de
règlement des griefs
des employés de la
Couronne
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Toronto (Ontario) M5G 1Z8
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GSB#2012-1012
UNION#2012-0506-0018
Additional Grievors in attached list
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Brydges et al) Union
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The Crown in Right of Ontario
(Ministry of Transportation) Employer
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNION Lesley Gilchrist
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Roslyn Baichoo
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING October 15, 2014
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Decision
[1] The Board is seized with 39 individual grievances filed by Transportation Enforcement
Officers employed at the employer’s Durham and Halton District offices. The grievances are
worded as follows:
Statement of Grievance: The employer’s “New Year New Outlook” presentation violates
article 3 of the collective agreement, the Human Rights Code and any other applicable
articles or legislation that may apply.
Settlement Desired: The employer cease and desist; the Employer publicly acknowledge that
the presentation contravenes the collective agreement and the Code; the employer implement
appropriate communication to be provided by an external consultant and selected jointly by
the employer and union; an investigation to determine any emails containing the presentation
or anyone that supported its distribution.
[2] The parties agreed that the grievances be heard together. Prior to the date of hearing the
employer gave notice to the union that it would be presenting a motion for the dismissal of
the grievances for failure disclose a prima facie case. The motion was argued on October 15,
2014 and this decision determines it.
[3] The particulars of the union are as follows:
Further to our emails and telephone conversation I am writing to provide particulars
regarding the Union's case. The Union has relied on statements from the Grievors as well
as the documents attached.
The Union explicitly reserves the right to raise further details and rely on additional
documents, facts or evidence. I will give you an opportunity to review any additional
material prior to introducing it into evidence.
1. In or around January 2012, Jabeem Khan, Regional Manager of the Central East
Region, delivered a power point presentation entitled “New Year New Outlook”
to her staff. These staff included the following grievors:
Andrew Brydges , Jason Brydges, Marsha Boileau, Michael Carr,
Douglas Davey, Paul Grapham, James Gray, Lori Letterio, Ron
Marchant, Glenn Murray, Jordon Whynot, Bradley Wiebe, Philip
Wilkinson, Darren Woodcox
2. All of the above Grievors are Transportation Enforcement Officers with the
Ministry of Transportation.
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3. The presentation contained graphic imagery of poverty in the developing world
and compared this imagery with “trivial” problems in the developed world. For
example, the third slide asks “If you think your salary is low, how about her?”
accompanied by a photo of a child.
4. The fifteenth slide asks “Why do we complain?” Ms. Strachan, when she
received this slide felt this was a direct comment on interaction with the Union,
and grievances, as well as health and safety complaints, filed by the members.
5. The sixteenth slide states “Let’s Have New Expectations!”. Ms. Strachan, when
she viewed this slide, again, felt it was a direct comment on interactions with the
Union and grievances, as well as health and safety complaints, filed by the
members.
6. Further, Ms. Strachan noted that 2012 was a bargaining year, and felt that the
presentation was a tool to disincentivize the Union from bargaining an
advantageous agreement. She felt the presentation was calling her, as well as
other members “lazy” and insinuating that they demanded too much.
7. The Grievors felt that the presentation was condescending and presumptuous.
Mr. Jason Brydges characterized the presentation as the employer telling him that
he was “lucky” to have to a job, and that he may not be doing it very well and he
should do it better in the new year.
8. Mr. Brydges also felt that the presentation was condescending in that it seemed to
say they had no appreciation for their privileges, as well as implying that any
problems they had were trivial, such as the thirteenth slide, which asked if
“someone gave you adidas instead of nike”).
9. Mr. Brydges felt that Ms. Khan had no insight into his life and any problems that
had arisen in the months prior to the presentation. In that time, Mr. Brydges had
experienced serious family problems, including the diagnosis of his father and
uncle with cancer, his sister in law vehicle accident, and the passing away of
family members. Mr. Brydges felt that this presentation deeply trivialized his
very real problems.
10. The Grievors felt that this presentation had no place in the workplace and was an
inappropriate motivational tool.
11. On or around January 16, 2012 Rob Gagne, who was at the time a regional
manager, forwarded the presentation to the staff of the entire Northern Region.
This email was copied to Tony Foster, the Director and Regional Operations, and
Ms. Kahn.
12. This presentation was freely emailed around by both management and staff. The
following grievors received the presentation by email
Mike Anderson, Daniel Bosher, Anas Bijabhai, Jacqueline Bush, Jennifer
Coit, Douglas Currie, Erik Eustace, Jim Fenton, Robert Grabar, Tyeone
Greenidge, Louise Kemp, Jason Leeman, Joanna Louks, Richard
McConnell, Guitri Mohammed, Ryan Nicals, Lisa Pulver, Lyle Reid,
Adriano Sanna, Corrine Santangelo, Dennis Singh, Suzanne Steblaj, Edie
Strachan, Michael Wozniak, Anna Zeeman
13. On or around January 27, 2012, at around 2.33 pm, Rob Fleming, the Assistant
Deputy Minister sent an email to all MTO Enforcement staff. This email states
that he is “confident that local management never intended to offend staff and did
not anticipate the negative impact that the material could have in the workplace”.
14. On the same date at around 3.05 pm Ms. Khan sent out an email. This email
states that staff “misinterpreted” the intent of the presentation and offers
apologies “if it was taken out of context and not received in the manner it was
genuinely intended to.”
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15. This email goes on to state that the presentation was to “broaden all of our
perspectives”. This was also perceived by the Grievor’s as condescending.
16. It is the position of the Union that showing this presentation violated article 3.1
of the Collective Agreement and Section 5 of the Ontario Human Rights Code.
The presentation is exploitative and insensitive and portrays people of colour as
objects of pity rather than as full participants in society.
17. It is further the position of the Union that showing this presentation violated
article 9 of the Collective Agreement, insofar as it was vexatious and should have
reasonably been known to be unwelcome to those who saw it.
18. Finally it is the position of the Union that showing this presentation violated
Article 3.2 of the Collective Agreement insofar as it sought to and had the effect
of shaming union members for seeking to uphold the collective agreement
through grievances, and seeking to improve the collective agreement at
bargaining.
[4] Recognizing that the union had reserved “the right to raise further details and rely on
additional documents, facts of evidence” in the preamble to its particulars, the Board inquired
from union counsel whether the union would be relying on any additional facts or documents.
She responded that the union would not be relying on any additional facts, but entered into
evidence the employer’s Workplace Discrimination and Harassment Prevention Policy
(“WDHP policy”) and a document entitled “New Year … 2012 New Outlook … Central East
Region RUS Operations”, (“The presentation”) which consisted of paper copies of the power
point presentation referred to in paragraph 1 of the particulars.
[5] Employer counsel noted that these are individual grievances. Therefore, each grievor is
obliged to present particulars, if accepted as true, would be capable of establishing a violation
of some provision of the collective agreement or a statute. Counsel noted that the only
grievors specifically mentioned in the particulars are Ms. Strachan and Mr. Brydges. The
union alleges that the presentation violated article 3.1, article 9 and article 3.2 of the
collective agreement and section 5 of the Ontario Human Rights Code. However, the
particulars do not set out the facts which could possibly be the basis for a finding that any of
the individuals who have grieved were personally denied rights under any of those
provisions. Ms. Strachan states that it was a collective bargaining year and sets out that she
felt that the presentation was used as a tool to “disincentivize” the union from bargaining an
advantageous agreement. However, apart from that bold statement about how she felt,
nothing is said about how Ms. Strachan’s rights to full union participation was impacted by
the presentation. Nor do the particulars even set out how the union itself would be impacted
in relation to its ability to negotiate with the employer as a result of the presentation.
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[6] Employer counsel noted that while the particulars assert violations of article 3.1 and section 5
of the Code, it does not say which grievor was discriminated against and on what prohibited
ground. She submitted that even assuming that the union’s assertion that the presentation
depicted people of colour as “objects of pity rather than as full participants in society” and
that the presentation was condescending, insensitive, had no place in the workplace and
inappropriate as a motivational tool is true, that could not possibly lead to a conclusion that
any of the grievors had been denied their rights under the collective agreement or the Code.
[7] With regard to the allegation that article 9 was violated, employer counsel argued that the
particulars only make the bold assertion that the presentation was vexatious and unwelcome.
They do not state how the health and safety of any of the grievors was affected by the
presentation.
[8] Counsel submitted that the particulars at best may be capable of establishing that the grievors
found the presentation to be offensive and condescending and was not an effective
motivational tool. That, however, could not possibly lead to a finding that any of the grievors
were denied their rights under the provisions of the collective agreement or the Code relied
upon. Numerous authorities were cited in support of the employer’s motion.
[9] Union counsel reviewed the images and captions in the presentation and submitted that it
contained graphic portrayals of impoverished people, most of who are coloured people in
developing nations. She suggested the presentation was inappropriate because it trivializes
and “bohemianizes” those people, and holds them as objects of pity. Comparing them to
employees of the Ministry, the message is that the employees should be happy with what they
have, and should stop complaining.
[10] Counsel submitted that the union is not required to particularize how each of the grievors
were impacted. It has asserted that the presentation created a poisoned work environment
based on race, and under the collective agreement and the Code every employee is entitled to
be free from negative stereotypes based on race. She submitted that it would be a step
backwards in human rights law, for example, to hold that it would be acceptable to stereotype
women negatively in a presentation, as long as there are no women in the audience. While
the union has not identified a prohibited ground with regard to each grievor, on its face the
presentation was racially insensitive and violated article 3 and s. 5 of the Code.
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[11] Counsel noted that the presentation was made at a mandatory work related meeting. It refers
to wages earned by the employees, as compared to what they produce. The message
conveyed was that these grievors “are paid too much, produce too little and complain too
much”. This presentation was made during a collective bargaining year. Union counsel
argued that to constitute a violation of article 3.2, the law does not require that the union
establish that the employer’s anti-union activity had successfully achieved the desired result
of discouraging employees and the union from seeking favourable terms and conditions of
work. All it needs to show is that the employer activity was capable of having that effect.
[12] The union submitted that the presentation contravened article 9 of the collective agreement
and the Occupational Health and Safety Act in that it constituted harassment and bullying.
The ADM’s e-mail set out in the particulars, she submitted, acknowledges that the
presentation had a negative impact on the workplace. The particulars about the grievors
finding the presentation to be inappropriate and offensive, that it trivialized and
bohemianized people of colour, and that it conveyed a message to the employees that they
produce too little and ask for too much, would be sufficient to establish a prima facie case of
harassment and bullying. She argued that the presentation was an act of “intimidation by a
condescending attitude and by policing the conscience of the employees”.
[13] Union counsel presented a large number of authorities to support its position that the
employer’s motion ought to be dismissed. Counsel submitted that in dealing with this
motion, it is not necessary that the Board be able to find that the alleged violations are
established. All that is required is, the Board must be able to conclude that if all of the facts
asserted are established by the evidence, it is possible that violations may be found.
[14] In reply, employer counsel reminded that the Board’s jurisdiction is constrained by the four
corners of the collective agreement and the statutory provisions relied upon. Therefore,
considering that these are individual grievances, the Board must ask itself whether any of the
39 grievors had asserted facts that are capable of establishing a violation of any of those
collective agreement and statutory provisions. She submitted that the particulars relied upon
by the union make specific reference only to two of the grievors, Ms. Strachan and Mr.
Brydges. There is nothing about how the presentation impacted on the collective agreement
or statutory rights of any of the other 37 grievors. Even with regard to Ms. Strachan and Mr.
Brydges, the particulars only assert their opinion about the presentation, and how they felt.
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There is no mention of on what prohibited ground either of them were discriminated against
or how their health and safety rights or right to engage in union activity were impacted.
[15] The provisions of the collective agreement and the Human Rights Code the union relies on
are as follows:
Collective Agreement
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 disability, as defined in
section 10(1) of the Ontario human Rights Code (OHRC).
3.2 There shall be no discrimination or harassment practised by reason of an
employee’s membership or activity in the Union.
9.1 The Employer shall continue to make reasonable provisions for the safety
and health of its employees during the hours of their employment. It is
agreed that both the Employer and the Union shall co-operate to the fullest
extent possible in the prevention of accidents and in the reasonable promotion
of safety and health of all employees.
Human Rights Code
Employment
5.(1) Every person has a right to equal treatment with respect to employment
without discrimination because of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex sexual orientation, gender identity,
gender expression, age, record of offences, marital status, family status or
disability.
Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment
in the workplace by the employer or agent of the employer or by another
employee because of race, ancestry, place of origin, colour, ethnic origin,
citizenship, creed, sexual orientation, gender identity, gender expression, age,
record of offences, marital status, family status or disability.
[16] Employer counsel relied on the provisions of the employer’s WDHP policy including its
definitions of “discrimination” and “harassment” and submitted that the union had not,
through its particulars, made out a prima facie violation of that policy. As the document
itself clearly identifies, the WDHP policy is a “Management Board of Cabinet
Directive”. It is a tool the employer has unilaterally developed to assist its managers to
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comply with its legal obligations. It is not part of the collective agreement nor jointly
signed off. The policy sets out its purpose at p. 3 as follows:
The purpose of this policy is to:
. establish a framework for the prevention of workplace discrimination and
harassment and effective response to issues of workplace discrimination and
harassment.
. provide direction to ministries and commission public bodies on compliance
with statutory requirements for human rights and health and safety regarding
workplace discrimination and harassment.
[17] The provisions of the employer WDHP policy may certainly become relevant in
proceedings before the Board in various ways. However, in a no prima facie case
motion, the union is not required to even assert that the employer did not comply with its
own WDHP policy. The violation that must be established on a prima facie basis is of
some collective agreement or statutory right of the grievors. Whether the employer
complied with its own policy is not relevant to the determination of the motion.
[18] The union relied on a discussion by the Board in Re OPSEU and Ministries of
Community Safety and Correctional Services and Children and Youth Services, 2009-
0167 and 2009-0810 (Harris) where the Board states that the purpose of particulars is to
enable the employer to know “what the case is about” in order to permit it to prepare its
defence. Counsel submitted that the union’s particulars meet that requirement. Vice-
Chair Harris was, however, not faced with a “no prima facie case” motion. The Board
was merely commenting on what constitutes adequate particulars, in dismissing the
employer’s objection to calling of evidence not captured by the particulars provided. At
para. 54 the Board wrote “The purpose of particulars is to permit the employer to know
which facts are claimed to be part of the alleged breach of the collective agreement.
Particulars do not include evidence nor do they include argument. In harassment and
discrimination matters it is only fair to individually itemize the various actions alleged to
be part of the course of conduct that amounts to the alleged breach”.
[19] The observations of the Board in that case about the purpose of particulars are consistent
with other authorities and are not controversial. However, the general adequacy of
particulars is not a complete answer to a “no prima facie case” motion. The Board
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jurisprudence has developed principles that govern such motions. In Re Couture et al
2008-3329 (Dissanayake) at para 6 the Board wrote :
The decision in Re Difederico, 2008-0868 (Dissanayake) illustrates that prima facie
motion would succeed if the facts asserted in support of a grievance, if accepted as true,
are not capable of establishing the elements necessary to substantiate the violation
alleged. There the grievance alleged a violation of article 3.2 which provided that “There
shall be no discrimination or harassment practised by reason of an employee’s
membership or activity in the union”. The grievance alleged that the employer had
exercised its management right to investigate a WDHP complaint in a manner that
harassed the grievor and that this was done as retaliation for the grievor’s filing of three
grievances some years earlier. At para. 16 Board wrote:
[16] Given the manner in which the grievance has been framed, in order to
establish a prima facie case, the facts asserted by the union must
establish that (1) the employer conducted itself in the exercise of its
management rights in a manner discriminatory or harassing of the
grievor, (2) that such conduct was motivated in whole or in part,
because of the grievor’s filing of grievances some 17 years ago. I find
that the union has not made out the first element of articles 3.2 above, so
that the second element becomes moot.
[20] The union in the instant case took the position that the Board ought not determine the
merits of the grievances in a preliminary motion, but should do so only after hearing all
of the evidence. In Re Couture et al (supra) at paragraph 13, the Board addressed that
concern as follows:
[13] Here the employer explicitly invited the Board to accept the facts
alleged by the union as true for purposes of determining the motion.
The union has not presented, and I am not aware of any authority for the
proposition that a “prima facie motion” ought not be decided where it
would require the Board to interpret provisions of the collective
agreement and/or decide legal issues, or where such motion would
require the Board to determine the merits of the grievance. To the
contrary, numerous decisions including Re Difederico (supra) illustrate
that the Board does exactly that when faced with a motion of this sort.
[21] The Board has stressed that in determining a “no prima facie case” motion, the facts
asserted are to be accepted as true and that the Board would not engage in assessing the
quality of evidence. Thus in Re Evangelista et al, 2009-1091 (Harris), the grievances
alleged that “the inequitable assignment of these shifts to the Old City Hall court
reporters is contrary to article 2.1 Management Rights, article 3 No
Discrimination/Employment Equity, and article 60.1 Health and Safety”. The union
asserted that the employer conduct impacted negatively on the grievors in different ways
including causing them to be ill and causing one grievor to forego his religious
observances. In dismissing the employer’s motion the Board at para. 11 stated:
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[11] In essence, the Board is being asked to weigh the quality of the Union’s evidence,
which is not appropriate at this juncture. For example, I am asked to reject the assertion
of Mr. Rubinoff that he has foregone his religious observances because the scheduling of
WASH court would make attendance difficult. The Employer also asks the Board to
weigh the quality of the medical evidence that the scheduling of Wash court has caused
illness. Rather, at this juncture, both of those allegations of fact are to be taken as true.
[22] In the instant case, the union was afforded the opportunity to make any factual assertions
it wished to rely on. The Board therefore has the task of determining whether all of the
facts asserted by the union in support of the grievances, if accepted as true, are capable
of establishing the elements necessary to substantiate the violations alleged.
Discrimination on the basis of race/colour
[23] The union asserts that the presentation contained graphic imagery of poverty in the
developing world and that the majority of those images depicted people of colour. Thus,
it contends that the presentation violated article 3.1 of the collective agreement and s. 5.1
of the Ontario Human Rights Code, because it was exploitive, insensitive, and portrayed
people of colour as objects of pity rather than full participants in society. The question
then is whether or not all of those assertions, assuming them to be true and provable, are
capable of establishing a violation of article 3.1 and S. 5.1 of the Code.
[24] Canada’s highest court has spoken on the requirements to be met to demonstrate prima
facie discrimination. In Moore v. British Columbia (Education), (2012) 351 D.L.R. (4th)
451 (S.C.C.) at para. 33, Abella J said:
As the Tribunal properly recognized, to demonstrate prima facie discrimination,
applicants are required to show that they have a characteristic protected from
discrimination under the Code; that they experienced an adverse impact with respect to
the service; and that the protected characteristic was a factor in the adverse impact. Once
a prima facie case has been established, the burden shifts to the respondent to justify the
conduct or practice, within the framework of the exemptions available under human
rights statutes. If it cannot be justified, discrimination will be found to occur.
[25] Similarly in Shaw v. Phipps, (2012) ONCA 155; 289 O.A.C. 163, the Ontario Court of
Appeal at para. 4 stated that to demonstrate a prima facie case of racial discrimination
the following three elements were required to be established: 1. That he or she is a
member of a group protected by the Code; 2. That he or she was subjected to adverse
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treatment; and 3. That his or her gender, race, colour or ancestry was a factor in the
alleged adverse treatment.
[26] In its recent unanimous judgement in Peel Law Assn v. Pieters (2013) 363 D.L.R. (4th)
598, the Ontario Court of Appeal per Juriansz JJA, following a review of the foregoing
authorities, stated at para. 126 as follows:
[126] To find discrimination, the Vice-Chair had to be satisfied, after considering all the
evidence, that the appellants were members of a group protected by the Code, that they
were subjected to adverse treatment, and that their race and colour were factors in the
adverse treatment.
[27] In Moore (supra) the claim was one of discrimination in relation to provision of a
service. The Board is cognizant of the fact that here it is dealing with a no prima facie
case motion. Applying the principles in the foregoing judicial authorities to the
circumstances in the present motion, each of the grievors here, whether his/her claim is
grounded on article 3.1 of the collective agreement or S. 5.1 of the Code, in order to
demonstrate a prima facie case of discrimination, is required to assert facts capable of
showing:
1. That he/she has a racial characteristic protected from discrimination under the collective
agreement and/or the Code.
2. That he/she experienced an adverse treatment with respect to his/her employment.
3. That his/her protected characteristic was a factor in the adverse treatment.
[28] Union counsel argued that it is inappropriate for any employer to “bohemianize” and
trivialize groups of people based on their race or colour. This is more so when the
disparaging of coloured people took place in the workplace at a mandatory staff meeting.
The Board agrees that disparaging of people on the basis of their colour, or any other
prohibited ground for that matter, is inappropriate. However, that inappropriateness does
not automatically result in the contravention of article 3.1 or s. 5 rights of each
individual who received the presentation. The law is clear that to claim discrimination,
the claimant – a complainant under the Code or grievor under a collective agreement – is
required to show that he/she has a characteristic protected from discrimination. Since
the allegation here is of racial discrimination, therefore, the grievors must have asserted
that they have some racial characteristic that is protected under article 3.1 and/or s. 5.1
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of the Code. None of the 39 grievors have done that. Therefore, their respective
grievances do not get off the ground, and the remaining two conditions, namely that they
suffered some adverse treatment with regard to employment, and that their protected
racial characteristic was a factor in the adverse treatment, become moot. In the result,
the union has not made out a prima facie case on that aspect of the grievances.
[29] Harassment and Bullying
The union claims that the presentation constituted harassment and bullying of the
grievors. Reliance was placed on s. 5.2 of the Human Rights Code. The issue therefore
is whether the union has asserted facts that are capable of establishing those allegations,
if accepted as true.
[30] In Re Toronto Transit Commission (2004) 132 L.A.C. (4th) 225 (Shime) the Board was
dealing with a grievance by an employee claiming that he was subjected to workplace
harassment by his foreman. The arbitrator concluded that even in the absence of any
explicit provision in the collective agreement prohibiting workplace harassment, he had
jurisdiction to determine the grievance because it was an implied term of the collective
agreement that the work of a supervisor must be exercised in a non-abusive, non-
harassing manner. At para. 249, he stated:
249 Harassment includes words, gestures and actions which tend to annoy, harm, abuse,
torment, pester, persecute, bother and embarrass another person, as well as subjecting
someone to vexatious attacks, questions, demands or other unpleasantness. A single act,
which has a harmful effect, may also constitute harassment.
[31] While the particulars in the instant case refer to harassment and bullying, the union’s
submissions were made generally, drawing no distinction between the two concepts.
Counsel referred to case law standing for the proposition that although usually
harassment involves a repeated pattern of conduct, in some cases where the conduct is
very serious and egregious, a single act may constitute harassment. It was submitted that
this was such a case. The fact that 39 individuals found the presentation to be
unwelcome and offensive is indicative of the gravity of the employer’s conduct. It was
argued that the union has asserted that the grievors were annoyed, bothered and
embarrassed by the presentation, and that it comes within the definition of harassment.
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[32] The definition of harassment is one based on an objective test. The question is not
whether the conduct was perceived subjectively by the employee to be annoying,
embarrassing etc. The test is whether a reasonable person would find it to be so. This is
implied in arbitrator Shime’s definition which refers to conduct “which tends to” annoy
etc. Assuming for the purposes of the instant motion that the presentation, when viewed
objectively, would tend to have the negative impacts on the grievors as alleged (annoy,
embarrass, offend, etc.), is that sufficient to possibly ground a violation of s. 5.2 of the
Code? It should be noted that in Re Toronto Transit Commission (supra) the grievances
were not based on a provision, statutory or collective agreement, prohibiting
discrimination based on protected grounds. The arbitrator concluded that the collective
agreement between the parties included an implied term prohibiting workplace
harassment generally. There was no issue of any protected grounds raised, and nor
discussed by the arbitrator.
[33] In contrast, the union here relies on s. 5.2 of the Code. It provides, inter alia, that every
employee has a right to freedom from harassment in the workplace by the employer.
However, the prohibition against harassment is not general or open-ended. Rather, the
right is to freedom from harassment “because of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression,
age, record of offences, marital status, family status or disability”. (Emphasis added).
Thus, for there to be a contravention of s. 5.2 of the Code, the harassment must have
been “because of” one or more of the protected characteristics. The case law is clear
that if the harassment was because of a protected ground even in part, that constitutes a
violation of the Code.
[34] The union has not asserted that the harassment alleged to have taken place was because
of a protected characteristic possessed by any of the grievors. This is consistent with the
Board’s earlier finding that the union has not asserted that any of the grievor’s belonged
to a protected group. It follows that the facts relied on by the union are not capable of
establishing harassment or bullying contrary to s. 5.2 of the Code.
Poisoned Work Environment
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[35] The provisions of the Human Rights Code, s. 5.1 and 5.2 and article 3.1 of the collective
agreement seek to prevent not only discrimination which targets particular employees,
but also discrimination which affects a workplace generally. In these individual
grievances the grievors claim that the employer created a poisoned work environment
when it made the presentation depicting people of colour in a disparaging manner. In
Ghosh v. Domglas Inc., Ontario Board of Inquiry decision dated June 5, 1992, 17
C.H.R.R. decision 16, at paragraphs 76-77, the Board wrote:
[76] It is now beyond question that the atmosphere in which an employee must work is a
condition of his or her employment, and should that atmosphere be oppressive or
“poisoned” for a minority group, that circumstance might amount to discrimination on a
prohibited basis. Management personnel who know, or ought to know, of that condition
but permit it to continue thereby discriminate against the affected employees even if they
are not themselves actively engaged in the production of that atmosphere. Where such
discrimination is based upon a prohibited ground it is caught by the Code. There is a
long line of cases to that effect decided under the previous Ontario Code and this same
reasoning has been found applicable in respect to the present Ontario legislation, see Lee
v. T.J. Applebee’s Food Conglomeration Hotels (1987), 8 C.H.R.R. D/3985. Amongst
the earlier decisions are the following: Fuller v. Candur Plastics Ltd. (1981), 3 C.H.R.R.
D/419; Dhillon v. F.W. Woolworth Co. (1982), 3 C.H.R.R. D/743; Ahluwalia v.
Metropolitan Toronto Board of Commissioners of Police (1983) C. H.R.R. D/1757.
[77] The importance of the “poisoned atmosphere” or “poisoned work environment”
principle under the present Code is that there may be known instances of harassment by
anonymous employees, or of known harassing conduct not caught by S. 4(2) because no
one perpetrator included in a “course” of such conduct, or the member of the minority
group discriminated against by having to work in that poisoned environment may not
have been the person harassed. In any event, as the Commission pointed out, the conduct
in the workplace of the respondents in this case was repetitious and public. One of them
was his supervisor from whom Mr. Ghosh received his daily work assignments, who had
the authority to evaluate his performance and who was called upon by the employer for
advice regarding promotional opportunities. It seems obvious to me on the evidence
already reviewed that the atmosphere in which Mr. Ghosh was compelled to work was
indeed “poisoned” for him and that this was because of his handicap. (emphasis added).
[36] The Board’s decision contemplates circumstances where the atmosphere in the
workplace is oppressive or poisoned for a “minority group”. The Board states that such
a circumstance “might amount to discrimination on a prohibited basis”. The Board’s
reasoning makes it clear that such discrimination must be based on a prohibited ground
to be “caught” by the Code. The Board goes on to consider the impact of the poisoned
work environment on the complainant. It concludes that “the atmosphere in which Mr.
Ghosh was compelled to work was indeed “poisoned” for him, and that this was because
of his handicap”. (emphasis added) In Ghosh (supra) the complaint was upheld. The
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Board concluded that (1) he was disabled and (2) that because of his disability he was
subjected to discriminatory treatment, such as denial of a promotion and salary increase,
derisive imitations of his pronounced limp, and comments that he was faking the limp
and had succeed in fooling the WCB to obtain a pension. That created a poisoned work
environment for him.
[37] In the present case, there is no assertion that any of the grievors were members of a
protected group or had a protected characteristic. Nor are any facts asserted that the
workplace became poisoned for any of them because of a protected characteristic. The
grievors may well have been offended by the presentation. However, there are no facts
asserted that any of them had a protected characteristic let alone exposure to a poisoned
work environment because of such a characteristic. Since the collective agreement and
Code provisions relied upon by the union prohibit discrimination on the basis of
specified grounds, there can be no contravention based on the asserted facts.
Anti-union discrimination
[38] Where a grievance alleges a violation of article. 3.2, the grievor and the union have the
onus of satisfying two conditions. First, that there was discrimination or harassment of
the grievors. Second, that such discrimination or harassment was practised by reason of
the grievor’s membership or activity in the union. With regard to the second condition,
the Board has held that a contravention of article 3.2 may be found where the employer’s
exercise of management rights was tainted in whole or in part by an anti-union animus.
[39] The primary basis for the union’s assertion that article 3.2 was violated is a picture of a
child with a bowl in hand, appearing to be begging on the streets. The caption states, “If
you think your salary is low, how about her?”. Union counsel suggested that there was a
general message in the presentation that the employees “should be happy with what they
have, should stop asking for more, and instead should be producing more”. From the
fact that this message was delivered during bargaining year, counsel urged the Board to
conclude that the presentation could have the effect of discouraging the grievors and the
union from pursuing more favourable terms and conditions during collective bargaining.
Counsel submitted that to constitute a violation it is not necessary for the union to
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establish that the presentation had the desired effect, that the grievors were in fact
dissuaded from pursuing their right to vigorously engage in union activity.
[40] The presentation was made by the employer in the purported exercise of its management
right to provide direction and training to employees. To be successful, the union must
assert that the manner of that exercise resulted in the denial of the rights under article 3.2
to the employees who have grieved. In order to do so, it is incumbent on the union to set
out facts as to how each grievor was impacted by the presentation. There must be a
disadvantage or penalty actually suffered, or at least threatened, because of his or her
union membership or activity. No such facts have been asserted.
[41] In Re Dobroff et al, 2003-0905 etc. (Dissanayake) (supra) at paragraphs 42-43 the Board
wrote:
42 The onus is on the union to establish that the employer’s decision not to
temporarily assign the grievors as Geoscientist 4, was tainted by anti-union animus.
Vice-Chair Briggs in Re Kerna, 2002-0944 observed at p. 38 that “… the onus was on the
union to establish anti-union animus. It has long been established that clear and cogent
evidence is needed for such a finding …”. Counsel for the union submitted that in
this regard arbitrators have recognized that employers usually do not advertise their anti-
union motivations, and that the union does not need “a smoking gun” to establish anti-
union animus. Counsel referred me to Re Horizon Operations (Canada) Ltd. (2000) 93
L.A.C. (4th) 47 (Coleman) where the arbitrator quotes from a decision of the B.C. Labour
Relations Board in Re Forano Ltd., [1974] 1 C.L.R.B.R. 13. In the latter decision at pp.
66-67, the Board wrote:
If the real purpose of a firing was the union involvement, an employer may
not search for some arguable justification in the employee’s earlier
behaviour and advance this as the cause, ex post facto. The crux of such an
unfair labour practice case is the employer’s motivation in the discharge,
something which rarely will be disclosed by admissions. Employers don’t
ordinarily advertise their anti-union activities. Such intention must be
pieced together from a pattern of circumstantial evidence.
43 I agree that an admission or “a smoking gun” would rarely be found in anti-union
animus cases or cases of discrimination on the basis of a prohibited ground. Thus in
appropriate circumstances, anti-union animus may be inferred from circumstantial
evidence. However, as Vice-Chair Gray observed in Re Damani, 1581/95; 1703/98,
proof is nevertheless necessary. Anti-union animus will not be inferred merely because a
grievor believes that it exists. At para: 17-18, Mr. Gray wrote:
[17] I accept as a general matter that racism “is out there”, as the grievor put
it at one point. I agree with union counsel’s submission that racism often is
latent, in the sense that those whose conduct is influenced by racist attitudes
may not openly acknowledge it. It is not necessary for the union to prove
that discrimination on the basis of race was the sole or even a major reason
for employer conduct detrimental to the grievor. If discrimination on the
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basis of race played any part in the employer’s treatment of the grievor, then
it breached the collective agreement provision that prohibited such
discrimination. The presence and effect of racist attitudes may be difficult
to detect and prove. It does not follow, and the union does not suggest, that
proof is therefore unnecessary, or that the mere allegation of racial
discrimination shifts the burden of disproving the allegation to those accused
of it. The same may be said about anti-union animus and discrimination on
the basis of union activity.
[18] The grievor says she cannot understand why she has not advanced in
the civil service unless it is because she is the victim of discrimination on the
basis of her race or union activity or both. Her subjective belief that she is
the victim of discrimination, however strong, is not proof that she is. This
would be so even in the absence of evidence that she is inclined to
exaggeration in labeling her experiences.
At para: 20-22 he stated:
[20] The failure of management to either do as Ms. Hill recommended or
explain why it would not or did not do so is perplexing. So is management’s
failure to either do as the Minister’s delegate directed or explain why it
would not or did not. In all the circumstances, however, these things are not
a sufficient basis for the inference the union asks me to draw. Certainly
there is no other basis for such an inference.
[21] There is no suggestion, and no evidence, that the grievor was the only
classified employee allegedly disadvantaged by the management practices
about which she and the union were complaining in 1995 and afterwards.
There is no evidence concerning the actual or apparent racial origins of other
allegedly disadvantaged employees, or of those members of management
responsible for the practices, or of those employees alleged to have benefited
from them. In so far as the employer had work opportunities to assign that
were not subject to posting and competition, the grievor asserts in a general
way that she was denied opportunities afforded other employees and that the
opportunities she got were not as advantageous as those that others got.
Again, the evidence does not identify the actual or apparent racial origins of
the decision-makers or of the other employees to who they allegedly gave
preferential treatment. I do not suggest that evidence of the matters just
referred to would have been necessary, or sufficient, for these grievances to
succeed. These observations are simply meant to illustrate and underscore
my conclusion that the evidence before me is not an adequate basis on
which to sustain the claims made.
[22] Disappointing as it undoubtedly is for Ms. Damani, the fact that an employee
with her years of satisfactory service did not get the sort of work opportunities she
sought during the period in question is not so surprising as to warrant, without
other objective evidence of it, an inference that discrimination played a part in the
outcome. The evidence put before me does not support the grievances.
[42] In each of the foregoing cases the union had claimed that the grievors had suffered some
disadvantage such as denial of temporary assignments (Re Dobroff); discharge (Re
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Forano Ltd); denial of advancement in the civil service (Re Damani), because of their
union activity. The respective Boards had the task of determining whether there was
evidence to support a finding that the denial of temporary assignments, the discharge and
denial of advancement were wholly or partially “by reason of their union membership or
activity”.
[43] In contrast, in the instant case, there are no facts asserted to show that any of the
individual grievors suffered any differential treatment, detriment or disadvantage
because of their union membership or activity. The employer’s “message” that they
should be content with their terms and conditions of employment by itself, with no
sanction, actual or threatened, attached in the event they seek more favourable terms and
conditions, does not infringe the right under article 3.2 to freedom from discrimination
by reason of membership in the union or union activity.
[44] Moreover, the only relevant facts asserted are that the presentation took place during a
collective bargaining year and that a message was conveyed to the effect that the
grievors should be content with their wage levels and should try to produce more
without complaining. Besides these assertions of fact, the union states that Ms.
Stratchan “felt that the presentation was a tool to “disincentivize” the union from
bargaining an advantageous agreement”. In Re Damani (supra) the Board found the
employer’s conduct and absence of an explanation to be “perplexing”. (para. 20). The
Board also acknowledged that the grievor strongly believed that she was a victim of
discrimination on the basis of her race or union activity or both. However, the Board
held that in the absence of any factual basis, it was not able to draw an inference of anti-
union animus, based on the grievor’s subjective belief. Similarly here, the Board finds
that if it is accepted as true that the presentation conveyed the “message” alleged and
that it occurred during a bargaining year, that is not a sufficient basis to draw the
inference that there was a motivation, in whole or in part, to discourage the grievors
from exercising their right to engage in union activity.
[45] Union counsel stated during her submissions that if the motion is upheld, that would
amount to the Board stating that what the employer did was “fine”. She urged the Board
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not to do so. With respect, that line of reasoning ignores the role and jurisdiction of the
Board in reviewing the employer’s exercise of management rights. It is not within the
Board’s authority to supervise whether or not the employer was exercising its
management rights appropriately, fairly or effectively. It is trite law that the Grievance
Settlement Board may intervene only where the employer’s exercise of management
rights results in the denial or abridgement of a right employees have, explicitly or
implicitly, under the collective agreement or a statutory provision. It has no free
standing jurisdiction to review the exercise of management rights for reasonableness or
effectiveness. (See, Re Dobroff, supra, and the authorities cited therein). The Board’s
acceptance for purposes of this motion that the presentation was offensive, distasteful
and inappropriate as a motivational tool, cannot possibly lead to a finding that any of the
collective agreement or statutory rights of the grievors were violated.
[46] The dismissal of these grievances on the basis of absence of jurisdiction is certainly not,
and ought not be seen as, a finding by the Board that the employer conduct was “fine” or
that the Board endorses such conduct. The fact that 39 individuals found the
presentation to be offensive to such an extent to cause them to grieve, speaks for itself.
The employer, through communications of regret/apology appears to have realized that
the presentation was negatively received by a large number of employees. The Board’s
determination is that as a matter of law, the grievors have not asserted facts, if accepted
as true, are capable of establishing that any of them had their rights under any of the
collective agreement and statutory provisions relied upon, denied or abridged. The
Board so finds. As a result the employer’s motion is upheld and all of the grievances are
hereby dismissed.
Dated at Toronto, Ontario this 14th day of November 2014.
Nimal Dissanayake, Vice-Chair
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Additional Grievors
Grievor GSB Number OPSEU File
Number
Brydges, Jason 2012-1013 2012-0506-0019
Boileau, Marsha 2012-1014 2012-0506-0020
Carr, Michael 2012-1015 2012-0506-0021
Davey, Douglas 2012-1016 2012-0506-0022
Graham, Paul 2012-1017 2012-0506-0023
Gray, James 2012-1018 2012-0506-0024
Letterio, Lori 2012-1019 2012-0506-0025
Marchant, Ron 2012-1020 2012-0506-0026
Murray, Glenn 2012-1021 2012-0506-0027
Whynot, Jordan 2012-1022 2012-0506-0028
Wiebe, Bradley 2012-1023 2012-0506-0029
Wilkinson, Philip 2012-1024 2012-0506-0030
Woodcox, Daren 2012-1025 2012-0506-0031
Anderson, Mike et al 2012-1071 2012-0506-0033
Bosher, Daniel 2012-1072 2012-0506-0034
Bijabhai, Anas 2012-1073 2012-0506-0035
Bush, Jacqueline 2012-1074 2012-0506-0036
Coit, Jennifer 2012-1075 2012-0506-0037
Currie, Douglas 2012-1076 2012-0506-0038
Eustace, Erik 2012-1077 2012-0506-0039
Fenton, Jim 2012-1078 2012-0506-0040
Grabar, Robert 2012-1079 2012-0506-0041
Greenidge, Tyrone 2012-1080 2012-0506-0042
Kemp, Louise 2012-1081 2012-0506-0043
Leeman, Jason 2012-1082 2012-0506-0044
Louks, Joanna 2012-1083 2012-0506-0045
McConnell, Richard 2012-1084 2012-0506-0046
Mohammed, Guitri 2012-1085 2012-0506-0047
Nichols, Ryan 2012-1086 2012-0506-0048
Pulver, Lisa 2012-1087 2012-0506-0049
Reid, Kyle 2012-1088 2012-0506-0050
Sanna, Adriano 2012-1089 2012-0506-0051
Santangelo, Corrine 2012-1090 2012-0506-0052
Singh, Dennis 2012-1091 2012-0506-0053
Steblaj, Suzanne 2012-1092 2012-0506-0054
Strachan, Edie 2012-1093 2012-0506-0055
Wozniak, Michael 2012-1094 2012-0506-0056
Zeeman, Anna 2012-1095 2012-0506-0057