HomeMy WebLinkAboutTaurozzi 97-09-01 In the Matter of an Arbitration
Between
George Brown College
(Employer)
and
Ontario Public Service Employees Union
(Union)
And in the matter of Nick Taurozzi
Before: M. Brian Keller, Chair
Pamela Munt-Madill, Union Nominee
Kevin Mailloux, Employer Nominee
Appearances: George Richards for the Union
Steven Raymond for the Employer
Hearings in Toronto on October 3, 1996, April 3 and July 16, 1997.
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AWARD
This award deals with three separate grievances. The first was
filed by the griever alleging that his supervisors and the employer
through their failure to maintain order, have unjustly disciplined
him and failed to provide him with a safe working environment by
knowingly ignoring a clear and present danger. In grievance No. 2
the griever alleges that the College acted discriminaterily in that
they unjustly disciplined him by laying him off. In grievance No.
3 the griever alleges that the College had improperly assigned him
to a Technician "C" position in the Science and Technology
Department.
The grievor was an electrician at the 's St. James campus. At the
time of the grievance there was one other electrician, three
handymen, three mechanics and two plumbers also employed at St.
James. In 1994 Sonia Bartley was transferred into the work group.
What resulted from the transfer, according to the grievor, was
that the atmosphere in the shop turned into one of sexual innuendos
and alienation with the result that three factions were formed at
the work place.
One of those factions was the grievor and Ms. Bartley. According
to the grievor they stood alone against other employees who were
harassing Hs. Bartley directly and, as a result of the grievor
trying to assist Ms. Bartley, the grievor as well. Over a
relatively short period of time the atmosphere in the shop became,
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to put it mildly somewhat poisoned, and culminated with one of the
other employees in the shop posting a sign on his locker stating
"this bullet might be for you" along with a display of live
ammunition.
Towards the end of January 1996, the grievor raised the issue with
Mr. Alex MacGregor, his supervisor, and on January 26, the griever
wrote Mr. MacGregor a memo under the heading Health and Safety
asking that the situation be investigated and that the College
ensure that the Health and Safety of the employees in the shop be
protected. Mr. MacGregor responded on that same date indicating
that he had raised the issue with the individuals concerned, had
asked that the display be removed as it was found to be offensive,
and that as far as he was concerned he had investigated, addressed
the concerns of the griever and considered the matter closed.
On January 29, the grievor again wrote to Mr. MacGregor indicating
he was not happy with the response and did not consider the matter
closed. That was followed up on February 7, 1996 by a letter from
the griever to Mr. Frank Serechinsky, the president of George
Brown. In that letter the griever outlines in some detail, the
concerns he had with respect to harassment in the work place to
that point. A copy of the letter was sent to the Human Rights
Commission of Ontario.
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Two days later, the grievor received a memo from Mr. MacGregor
indicating that effective February 12, 1996 he was being
temporarily transferred to the Casa Loma Physical Plant Department.
The memorandum went on to state that the action was not to be
construed in any way as disciplinary, and was being taken without
prejudice to the complaint that the grievor may have made or may
make under policy. Mr. MacGregor indicated that the action was
being taken to facilitate the investigation of the serious
complaints that the griever made about his fellow employees.
Finally, the memorandum indicated that the St. James workplace
environment had to be stabilized so that a proper investigation of
the complaint could be undertaken. It was expected that the
investigation would take no more than five working days.
On February 19, 1996, Mr. Sorochinsky wrote back to the grievor
thanking him for his information, indicating that he was aware ef
the problem at St. James, equally aware of the College's obligatien
and responsibility to previde an envirenment free from
discrimination and harassment and indicating that an investigation
was being conducted.
On February 23, 1996, two memos were written by the College. One
was to all plant eperations staff, indicating that the
investigation had been completed and a preliminary report tabled
with the parties whe filed the complaint and also indicating that
two external facilitators had been engaged te "reconstitute and
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reconcile the work environment" and that process would start on
Honday, February 26. A second memo that same date was addressed to
the grievor who was told that, until the facilitation process had
been completed within the Plant Operations Department at St. James,
he was being given the option of returning to his temporary
assignment at Casa Loma or taking leave with pay. The grievor
chose the option of taking leave with pay.
Before the completion of the facilitation process and before the
grievor was able to return to work he received a memo from the
College, due to significant reduction in funding resulting from
financial constraints in the public sector, it was necessary to
reduce the number of employees of the College and unfortunately he
was one of those who was affected by the reduction process. He was
offered a new assignment at a lower pay band, an assignment which
he accepted. He was further told that his layoff date would be
June 6th, ninety days from the date of the memo received by him on
Harch 7th. The grievor was never laid off and prior to June 6th,
was recalled to a position at his substantive level.
The grievor recognized that the College was undergoing significant
financial constraints and was forced to lay off employees. He
further recognized that there was a joint union-management
committee responsible for determining where the layoffs would take
place and recognized that the layoffs in the Plant Operations
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Department had been identified prior to his writing his first memo
with respect to the issues of harassment and discrimination.
At the outset of the hearing the employer made a preliminary
objection with respect to grievance No. 1 arguing that the matter
was not disciplinary but was rather administrative and thus this
Board was without jurisdiction to deal with the matter. On
agreement of the parties evidence with respect to grievance No. 1
was reserved. Evidence was heard with respect to grievances 2 and
3 and this award deals with the preliminary objection as well as
the substantive issue raised by grievances 2 and 3.
Succinctly put, the union argues on behalf of the grievor that the
grievances should be maintained because everything that happened
following his first memo resulted from a desire on the part of the
College to discipline him. He was, says the union, the victim of
harassment and discrimination and in spite of that he was being
treated by the College as a perpetrator. His transfer to Casa Loma
was motivated by what was considered to be culpable behaviour on
his part, his subsequent notice of layoff was for that same reason
and his reassignment to a pay band 9 job, two levels below his
substantive position was motivated by the same reason. The Board
was asked to look behind what appears to be a simple administrative
matter and to find that the College considered his behaviour to be
culpable and that their actions following his memos were disguised
discipline.
For its part, the employer argues that it took the issue of health
and safety seriously and took steps at the earliest opportunity to
try to defuse the situation at St. James. On the basis of the
facts it had before it at that time it felt the easiest way to do
that was to temporarily transfer the grievor to Casa Loma while it
investigated the matter. The subsequent layoffs were layoffs that
had been identified prior to the College being aware of the
situation at St. James and could no way be construed as
disciplinary. Finally, it argues that the reassignment of the
grievor to a pay band 9 position was done simply because that was
the highest level position for which the grievor was qualified.
In dealing first with grievance No. 1, it is important to look at
the statement of the grievance. It contains two elements. There
is, first an allegation that the College failed to maintain order
and thus unjustly disciplined the grievor and, second that the
College failed to provide the grievor with a safe working
environment by knowingly ignoring a clear and present danger.
On the facts of this case, this Board cannot reach the conclusion
that what the employer did can be construed as discipline. First,
they did not ignore a clear and present danger. Although it might
be argued that Hr. HacGregor should have dealt with the matter more
quickly, certainly once the matter was brought to the attention of
Hr. Sorochinsky, matters were dealt with expeditiously. The
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grievor was, in fact, provided with a safe working environment by
being transferred to Casa Loma while the matters at St. James were
being investigated. The "clear and present danger" as
characterized by the grievor was not ignored by Mr. Sorochinsky.
In the same fashion, the grievor was not kept in an unsafe working
environment. That was dealt with by transferring him on a
temporary basis to Casa Loma. It should further be pointed out
that once that period was exhausted the grievor was given the
option of either taking leave without pay or returning to St.
James. The grievor chose leave without pay while the matters at
St. James continued to be investigated. Thus, the employer
continued to provide the grievor with a safe working environment by
allowing him to take leave without pay as opposed to returning to
St. James.
Similarly, it is difficult for the Board to accept that the College
failed to maintain order as, again, when the matter was brought to
the attention of Mr. Sorochinsky, he took immediate steps to have
the matter investigated and once the investigation was completed,
set up a facilitation process to ensure that the work relationships
at St. James would be normalized.
Accordingly, and on the basis of the documentary evidence viva voce
testimony of Mr. Taurozzi, this Board has to conclude that the
steps taken by the College were administrative in nature and were
in direct response to the memoranda written by Hr. Taurozzi and
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particularly the memorandum written by him to Hr. Sorochinsky.
It should be pointed out that had the transfer not been for a
temporary period pending the investigation then this matter might
have been viewed differently by the Board. However, the manner in
which the issue was handled, first on the basis of a temporary
transfer, and then on providing the grievor with the option again
temporarily of leave with pay while the matter continued to be
investigated by the College cannot be viewed as anything other than
administrative. At no time did the grievor lose any pay: at no
time did the grievor lose any seniority. He sought his safe
working environment and that was provided to him by the College.
With respect to grievance No. 2, the grievance whereby the grievor
alleges that he was justly disciplined by being laid off, again
this is not a grievance that the Board can sustain. The
uncontradicted evidence before the Board, acknowledged by the
grievor was that there was significant staff reductions taking
place at the College. In fact, most of the grievor's workforce was
laid off. A joint union-management committee met prior to the
issues raised by the grievor and identified the areas of layoff,
including the area in which the grievor was working. There is no
evidence to suggest that the decision to lay the grievor off took
place following his memoranda to the College. Rather, the evidence
is that such decisions were made prior to and for bona fide
business reasons. It was argued by the union that even where there
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are bona fide reasons if the issue is at all tainted that is
sufficient to find in favour of the grievor. There is no evidence
of such taint in this matter: there is only evidence of bona fide
business reasons and as such grievance No. 2 cannot be sustained.
The last grievance filed by the grievor was that he had been
improperly assigned to the Technician "C" position at pay band 9,
two bands lower than his substantive pay band 11 position. The
grievor indicated that he was effectively incapable of doing that
job and he therefore should have been assigned to a pay band 11
position because he was equally incapable of doing a pay band 11
position. The grievor testified as to his abilities to do the pay
band 9 job to which he was assigned and the pay band 11 job that he
sought. The evidence was clear that with respect to the skills,
abilities and knowledge required of the pay band level 9 job he had
all but one of the criteria required for the job. However, with
respect to the pay band 11 job, the grievor was lacking in five of
the seven skills and abilities required. On the basis of the
evidence, this Board concludes that the pay band 9 job was a job
for which the grievor was not necessarily unsuited whereas it was
clear on the basis of the evidence that the grievor was totally
unsuited for the pay band 11 job that he says he should have been
appointed to. The grievance, therefore, cannot succeed.
To recapitulate, grievance No. 1 is denied as the Board is lacking
in jurisdiction, the matter being administrative and not
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disciplinary. It should be pointed out that as the matter is
administrative and not disciplinary, no reference to the transfer
of the grievor from Casa Loma to St. James can ever be used by the
College with respect to the grievor in any future proceedings.
Grievances No. 2 and 3 are dismissed on their merits.
Nepean, this day of September, 1997
M. Brian Keller, Chair
I concur, see Addendum "Pamela Munt-Madill"
Pamela Munt-Madill, Union Nominee
I concur "Kevin Mailloux"
Kevin Mailloux, Employer Nominee
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