HomeMy WebLinkAboutBartley 99-06-25 uto ....
BETWEEN'
GEORGE BROWN COLLEGE
The College
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Umon
AND 1N THE MATTER of the grievances of Soma~/~.. )
Boa_rd of Arbitration:
LG. Thome, Chairman
Robert Galliva_n, College Nominee
Pamela Munt-Madill, Umon Nominee
A~earances for the Colleee:
Stephen C. Raymond, Counsel
Regina Lupworth, Manager, Labour Relations - Support
Shantam Roy, Student-at-La,v
Mary Hofweller, Manager of Compensation Benefits
Ric Ho, Controller
Mike McGee,
Bushax Amer, Director, Facilities Management
A~t>ear_art._.~:es for the union:
Diane C. Roberts, Counsel
Soma Bastley, Grievor
A hearing in this matter commenced on June 1999, at Toronto, Ontario.
2nd,
PRELIMINARY AWARD
Two grievances are before us. The first is dated December 18th, 1997, and asserts that
the College has unjustly exercised its rights under Article 3.1 (the ~management functions" clause)
in that a letter from a supervisor containing a written warning ~ . . . is another form of harassment,
in violation of Article 2.3 . .," (which prohibits dis crimination). That grievance asks that "all
harassment . . . be stopped" and that the letter be removed from the grievor's personnel file.
The second grievance is dated March 5th, 1998. It again claims that the College has
unjustly exercised its rights under Article 3.1 in that the College has denied the grievor sick pay #
... as another form of its continuous harassing and intimidating practices against me .... ~, The
grievance asks that the harassing and intimidating practices complained of be stopped, that the
grievor receive fill compensation and also asks for punitive damages of 1 million dollars.
When the heating opened it quickly became apparent that the pasties differed greatly as to
the scope of the case which could be put l/Vote this board. From some of the opening remarks of
counsel and the exhibits introduced on consent, some indication can be given of the evidence
which the Union proposed to call regarding the facts immediately surrounding the grievances.
With respect to the warning letter, the Union's evidence would be that the incidents complained of
against the grievor did not take place. With respect to the grievance regarding a denial of sick
pay, the evidence would be that the grievor had been unable to cope with stress related to
workplace problems and that the College had at first taken the position that the 8;rievor's claim,
being work-related, must be the subject of an application to the Workplace Safety and Insurance
Board. The evidence would also be that the WSIB had denied the grievor's claim on the basis
that the Board's current policy did not provide entitlement for work stress or workplace
harassment. In the meantime, however, the College had provided the grievor with sick benefits.
Beyond this, the extent of the evidence which the Union proposed to call was vigorously
opposed by counsel for the College. Counsel for the Union maintained that the matters raised in
the grievances were the latest incidents in a long pattern of harassment, which had contributed to
a poisoned work environment of which the most recent effect was the grievor's stress-related sick
leave. The College objected that the incidents in which the grievor had been involved before the
present grievances had been resolved by a settlement (whose terms the parties had agreed would
remain confidential) which had been the basis for the award of another board of arbitration. In
the College's view it was inappropriate for the Union now to raise these matters again.
Counsel for the Union took the position that the pasties' prior settlement did not prevent
the grievor from raising again the facts which had given rise to the previous disputes. It would be
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absurd, she suggested, if the evidence of a long period of harassment could be ignored while the
College continued the pattern of harassment.
At the board's urging the parties made considerable efforts to try to resolve the present
grievances in a mutually agreeable manner. Unfortunately these efforts were not successful and
when that became apparent we reconvened. The College then made certain stipulations, which
counsel argued should effectively dispose of the grievances. So far as the written warning was
concemed, the College would exercise its discretion under Article 16.4 to remove the written
warning from the grievor's file. With respect to the claim for sick leave, the College took the
position that the grievor had received everything that she was entitled to under the collective
agreement. In these circumstances, counsel argued, there was nothing substantial which the
board could usefully do to respond to the grievances.
It was the Union's view that such an outcome would provide no redress for the 8;rievor*s
main concern, which was to have the alleged harassment stopped. In that regard the Union would
seek a declaration that the harassment complained of had taken place, and it would also seek
damages for the grievor which would provide her with the difference between the sick pay
benefits and her regular remuneration, on the grounds that her illn,~ and her loss had been
caused by the poisoned work environment for which the Employer was responsible; the punitive
damages mentioned in the grievance would not be pursued.
The incidents which prompted these grievances, in and of themselves, appear not to be
complicated and might readily be resolved along the lines proposed by the College. However
both grievances also plainly allege that the incidents form part of a series of incidents of
harassment which amounts to a distinct violation of the collective agreement. It is perhaps not
unusual for a decision to grieve an alleged period of harassment to be prompted by a single
incident, and in such circumstances the resolution of the incident which gave rise to the complaint
may not necessarily resolve the whole grievance. We have heard no evidence about the alleged
pattern of harassment, but on the face of it that appears to be the sort of situation raised by these
grievances.
It is said that issues ~vhich have arisen in the past betwveen the grievor a-nd the College
have been resolved by a settlement arrived at between them and also by the award of another
board. We have not yet seen the settlement and award referred to. We do not know whether
they dealt with matters which the Union now wishes to raise. Depending on their terms, the
settlement a_nd award may preclude us from considering events that took place in the past, and it
is quite possible that some or all aspects of those matters may be within the jurisdiction of the
other board of arbitration rather than our own.
In these circumstances and at this stage of the proceedings, we cannot decline to consider
the broader aspects of the grievances before us. However it is essential that the pasties should
first deal with the settlement and award which the College says prevent us from proceeding. If, as
we understand, the Union maintains that it has the right to call evidence of the facts involved in
the settlement and award, we would expect that issue also to be argued between the parties.
Our preference, is to deal with these issues by way of written submissions from the parties.
We propose that the College, which raises the prior settlement and award as depriving us of
jurisdiction, should proceed first, with the Union responding and the College having a fight of
reply. We would expect the College to provide its submissions to the members of this board and
to counsel for the Union within three weeks of the date of this preliminary award. The Union
would then have a further three weeks following delivery of the College's submissions in which to
respond. The College would have three weeks from that time in which to make any appropriate
reply. If counsel see any diiculties with these arrangements, we trust that they will rase them
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with us promptly.
Dated at Kingston, Ontario, this 25th day of June 1999.
LG. Thorne, Chairman
I concur/~
Robert Gallivan, College Nominee
Pamela Munt-Madill, Union Nominee