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HomeMy WebLinkAbout1989-0087.Pires.92-08-07 ONTARIO EMPLOY£S OE LA COURONNE CROWN EMPLOYEES ' DE L 'ONTA RIO GRIEVANCE C,O~MISSION DE SETTLEMENT REGLEMENT BOARD ~ DES GRIEFS DUNDAS STREET WEST, 5UITE 2100, TORONTO, ONTARIO. MEG lZ8 TELEPHONE/T~LEPHONE: (JIG) 326-1388 RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO)~ M5G ~Z~ FACSI~iLE,'TELEcoPiE . (4~6] 325~3'96 87/89 Under ~ C~ ~P~YEES cOL~CTI~ B~G~N~NG ~CT Before T~ GRIEV~CE SETT~~ BO~- BE~EN · · OPSEU (P~res) erievor The Cro~n ~n Right of Ontario (H[n[st~ off Revenue) Employer BEFORE: M. Gorsky Vice-Chairperson I. Thomson Member M. O'Toole Member FOR THE T. Hadwen GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR THE J. Knight EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HE;%RING November 1, 1991 April 3, 1992 June 24, 1992 DECISION '~his matter originally came before us on May 27,' 1991, and an interim decision was made on July 25, 1991. In order to place the issues before us in perspective, we will quote from certain portions of the interim decision: The Grievor, John Pires, was at ali material times classified as a tax auditor 1 in the Ministry of Revenue. He filed two grievances: 1. Grievance dated December 7, 1988 '(Exhibit 1) which~ stated: I grieve that I am being harassed and discriminated by my employers namely Mr. Larry Wilson and Mr. K. Siddiqi - Manager Desk Audit Operations for reporting working hours on a daily basis. The settlement desired.was: That management rescind and remove from all files their request and letter dated December 7, 1988 that my working hours will be monitored. Harassment and discrimination to cease immediately and a written apology from both. 2. Grievance dated March 15, 1989 stating.: I grieve that I am improperly classified as a Tax Auditor 1. The~settlement desired was: I be properly classified to Senior Auditor with full retroactivity of all money benefits and seniority from the date first due. At the opening of the hearing counsel agreed that only the first grievance would be dealt with by this panel of the Board, with the classification grievance to be dealt with by another panel. The grievance before us relates to an order given to the Grievor that he was to report to supervision at the beginning and end of each working day in order that his attendance could be monitored. The order is contained in Exhibit 2 which is as follows: "December 7, 1988 "MEMOTO: Mr. John Pires Tax Auditor "SUBJECT: Monitoring of Hours Worked "As there has been some concern regarding your attendance, your hours of work will be monitored for a period of time. "Effective immediately and until further notice, you are to advise me of your starting. time and finishing time on a daily basis. If I am absent~ when you arrive in the morning, th~n you are to advise Fred Berg of your starting time. "Your cooperation ~ith regard to this matter will be appreciated. (signed) ~ ' "Larry Wilson Supervisor, Tax Return.Centre" The Union's position was that the reporting requirement had not been implemented for legitimate management purposes arising out of a bon~ fide concern about the Grievor's attendance record, but that it had been introduced for the purpose of harassing him so that his working life would become more difficult and unpleasant, and that it represented a form of discrimination as ~o other employees had been subjected to this treatment. The position of the Employer is set out in its reply to the grievance (Exhibit ~3): "December 12, 1988 "MEMO TO: Mr. John Pires Tax Auditor "S~BJECT: Grievance dated December 7, 1988 3 "Receipt is acknowledged by Branch Management of your grievance dated December 7, 1988 in which you claim that you are being harassed and discriminated against by both myself and Mr. K. Siddiqi as a result of being required to report your daily starting and finishing times, as outlined in my memo of December 7, 1988. "As indicated in my memo of December 7, 1988 your starting and finishing time each day is being monitored for a period of time as there has been some concern (as a result of observations) regarding your attendance. This monitoring is not being done to harass or discriminate against you, but to satisfy ourselves that 3ou are spending the required time at work. "Accordingly, I must deny your grievance. (signed) "Larry Wilson Supervisor Tax Return Centre" It is the position Lof the Union that the reasons stated for monitoring the Grievor's attendance as set out in Exhibit 3 are a pretext to disguise management's real reasons which were said to be to harass the Grievor in his employment and to treat him in a different way from other employees. The Union indicated: 1. That it would be adducing evidence to demonstrate that the Employer was guilty of carrying out certain of its management functions in bad faith. That is, not for the ostensible reason set out in Exhibit 2. 2. That the Employer had failed to carry out-its obligations under art. 18.1 of the collective agreement requiring it to maintain a healthy and safe workplace. Its representatives were said to have engaged in discriminatory conduct in issuing Exhibit 2, amounting to harassment, which resulted in the Grievor's mental health, and to a lesser extent his physical health, being adversely affected. The actions of the Employer in this regard were said to have been carried out in bad faith; the evidence of bad faith to be adduced was said to have its origin in an irrational dislike of the Grievor by his long term supervisor, Fred Berg, to whom he had reported to the end of November 1988. At that time, the Grievor was transferred' and his supervisor became Mr. Wilson, and to a lesser extent Mr. K. Siddiqi. In support of the Grievor's allegation of discrimination and harassment, it was the Union's intention to adduce evidence of the Grievor's earlier relations with Mr. Berg. 3. Although not specifically stated ~in the grievance, it was the intention~of the Union to rely on an additional incident which was said to demonstrate an animus directed against the Grievor. The last mentioned incident is said to have occurred around the. same time as the issuance of Exhibit 2. Counsel for the Union ,.stated ~that although the second incident was not referred ~to. in the grievance, it had been raised during the grievance- procedure and during the pre-hearing so as to furnish the Employer with timely notice of this part of the Grievor's complaint. Counsel for the Employer stated that the Employer had indicated to the representatives of the Union, during' the grievance, procedure and at the pre- hearing stage,' 'that' as the latter matter had not been 'raised in the grievance, it might take the position at the ~earing that~ allegations with respect to it were inarbitrable. The incident was said to have arisen on the first day of the Grievor's transfer to Mr. Wilson's supervision (December 1, 1988). At that time, the Grievor was assigned a desk and complained to management that it was located in an area where there was a good deal of cigarette smoke which he could not tolerate for health reasons and, also, that he had not been supplied with a telephone which he needed in order to carry out his duties. The Grievor complains that was not until December 5, 1988, five~ days~ (three working days) after his transfer, that he was moved to a desk in an area which he found suitable and where he had a telephone. He relies on this incident as further evidence of bad faith {discrimination and harassment) on the part of the Employer amounting to a violation of art. 18.1 of the collective agreement. The position taken on behalf.of the' GriAvor was that the original assignment of the desk was a form 5 of harassment intended to make his work environment less pleasant and that there was no legitimate. management reason for doing so. Evidence intended to be relied upon by the Union was that the Grievor had been told that further approval was required from a manager, who was then absent, in order to change the location'of his desk, and that the only other available desks had been reserved for students and certain temporary staff. It was alleged that the reasons given were a pretext for the real reason: because of the animus directed against the Grievor by his supervisors, to harass him and to make his work environment unpleasant. Counsel for the Union advised us that as the Grievor had taken early retirement from the Ministry and from the public service on April 30, 1989, certain portions of the settlement desired were no longer 'being- requested. However, the Grievor intends to ask for damages in the amount of fifty thousand dollars ($50~000) for mental and physical pain and suffering, both said to have resulted from the alleged acts of harassment and discrimination. Counsel for the Union indicated that the evidence of pain and suffering, both physical and mental, would be based on the Grievor's evidence alone, and that there would be no'expert medical testimony adduced on his behalf. After counsel for the Union had completed his opening statement, counsel ~for the Employer raised a number of preliminary objections to our jurisdiction to hear the grievance, which are, as follows: 1. The collective agreement has no provision relating to "harassment" and the Board cannot consider a grievance not based on such a breach or on the three rights of grievance provided for under S.18(2) of the Crown Employees Collective BarGaining Act R.S.O., 1980 cap. 108. 2. That the Grievor ought to have followed the requirements of art. 27 of the collective agreement, and in particular art. 27.2.1, which is as follows: "27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of fArst becoming aware of the complaint or difference." There 'was no indication that the Employer had raised this objection prior to the hearing, and it would appear that it had notice of the'allegations of discrimination and harassment arising out of the issuance of Exhibit 2 from the grievance as filed, and that the Grievor objected to the reporting and wished to have it withdrawn and a written apology issued.~ A subsequent claim for damages, above referred, to, was made and the only objection to its arbitrability is as a result of the amount claimed being raised at the hearing from $20,000 to $50,000. The significance of this change as it relates to our jurisdiction to award damages may be addressed further at the continuation of the hearing. Counsel for the Employer argued that the facts relating to the Grievor's previous relations with Mr. Berg, and, as well, with respect to the desk incident ought not to be dealt-with by the Board unless they had been clearly raised in accordance with arts. 27.2.1, 27.2.2 and 27.2.3 of the collective agreement: "27.2.2 If any complaint or difference is not satisfactorily settled by the ' SuPervisor within seven (7) days of the discussion, it may be processed within an additional ten {10) days in the following manner: "STAGE ONE "27.3.1 The employee may file a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing seven (7) days of the submission of the grievance." Having failed to comply with the three sub-articles, any allegation other those clearly set forth in the grievance are said to be out of time and, hence, inarbitrable. It was submitted that only the matter dealt with in Exhibit 2.had been raised~ in the grievance and that the other allegations raised before the Board represented an invalid attempt to expand and later the nature of the original grievance. Counsel for the Employer was frank in acknowledging that the Employer had been informed, during the grievance procedure and at the pre-hearing stage about the additional facts now being relied upon by the Grievor. It was the position of the Employer that its representatives had indicated; on both occasions, that there would likely be an objection at the hearing to the raising of those additional matters as part of the grievance. It was-the position of the Employer that merely giving notice to the Employer during the grievance procedure or at pre-hearing of additional matters to be relied upon as part of the grievance could not overcome the Grievor's failure to comply with arts. 27.2.1, 27.2.2 and 27.3.1. In the case of art. 27.2.1, if it had been adhered to, the lowest level of supervision would have had an opportunity to consider the Grievor's position and endeavour to resolve the basis for the complaint. This is something that the p~rties had .determined in the collective agreement and in order to pursue-a complaint it was necessary for the grievor to have adhered to the provisions of arts. 27.2.2 and 27.3.~1. In the case of the additional allegations, unlike the case of the complaint about the order set out in Exhibit 2, there was nothing in the grievance to alert the Employer to the facts relating to it which the Grievor now wishes to rely upon. 3. Counsel for the Employer argued that in order for there to be a violation of' art. 18.1 of the collective agreement, it would have to be demonstrated that the Employer had failed to take reasonable steps to provide for the safety and health of the Grievor and that bald assertions of discrimination and harassment are not within the purview of that article. Art. 18.1 provides: "18.1 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." Counsel for the Employer, while denying that there had been any discrimination or harassment by the Employer, asked to find that art. 18.1 does not deal with such acts of discrimination and harassment as are being alleged here. Counsel for .the Employer requested us, if we find the matter to be arbitrable, to make the same ruling in the case of the desk assignment incident, and to find that even if the actions complained of were discriminatory and amounted to harassment, ~hich allegations were denied, they could not be characterized as a failure to make reasonable provisions for safety and health of employees. Counsel for the Employer argued, in any event, that in the absence of expert medical testimony as to the effect of the alleged acts of discrimination and harassment on the Grievor's health, it represented an "unreasonable stretch" to try to apply the facts alleged with a view to finding a breach of art. 18.1's.obligation on the Employer. 4. The Employer also 06jected to any evidence being. adduced relating to the Grievor's previous relationship~with Mr. Berg, which, it was argued, could have been the subject of an earlier grievance. The Union indicated 'that a grievance had previously been filed arisin~ out of the grievor's past relationship with Mr. Berg, but that it had not been proceeded with. Counsel for the Employer argued that the only evidence that can be adduced relating -th the discrimination and harassment grievance arises out of what is contained in Exhibit 2, and should the Board permit the expansion of %he grievance to include the desk assignment incident, the facts surrounding that incident. Counsel for the Employer indicated that its position would be that Exhibit 2 is concerned solely with monitoring the Grievor's attendance at work and is tantamount to a system of punching in and out. This is said to be non-disciplinary and to amount to a legitimate investigatory and monitoring technique to deal with certain perceived problems relating to the Grievor's attendance. The procedure is said to have imposed no particular hardship on the Grievor and would not hold him up to public embarrassment or ridicule, and, more specifically, did not violate any provision of the collective agreement. It was said that theaction of the Employer represented exactly what an employer ought to do if it had concerns relating to an employee's regular attendance: gather objective facts in order to be able to fully assess the situation and, if necessary, take further action. Counsel for the Employer indicated that evidence 9 would be called to demonstrate that whatever difficulties existed in making a proper assignment of a desk, desk space and a telephone for the Grievor when he was transferred at the beginning of December, 1988, the Employer had behaved in good faith and without any intention to discriminate against, harass or otherwise cause problems for the Grievor. We were asked to bear in mind that the public sector is not noted for speed and that the Grievor's concerns were addressed within a reasonable period of time and that, in all of the circumstances, the Employer's actions could not amount to a failure to take reasonable steps to protect the health of the Grievor. Counsel for the Employer argued that an allegation of discrimination and harassment represented an insufficient basis for th9 Board to assume jurisdiction tohear the grievance, and referred us tQ the case of VaB Der Akker, 2542/87 {Fisher), award dated January 17, 1989, where a similar preliminary objection was allowed. In that case the union's position that art. 10 of the collective agreement entitled "Shift Schedules" applied to the case was rejected by the Board which found that the content of the employee's work was (at p.2): "...an exclusive management function insofar as it properly forms part of the job description of the position." The board went on to say (ibid.): "Similarly, there is no terminology with respect to 'harassment' in the Collective Agreement and this allegation itself cannot form the basis of a grievance unless there is a specific violation of the Collective Agreement upon which a grievance is based." tt is significant to note that in Welsh, 122/89 (Watters), at p.27, the Board observed that: "... There is no reference in Van Der Akker to article 18.1 of the collective agreement. .We therefore assume that the Union did not make a claim similar to the one advanced in this case. The question was therefore decided on an interpretation of the management rights clause without reference to health and safety. Counsel for the Employer also argqed that as Exhibit 2 r~presented a non-disciplinary letter the Board has no authority to order its removal. However, he also stated 10 that as the Grievor is no longer employed by the Ministry of REvenue or in the public service, having resigned his position, he .was prepared to advise the Ministry to remove the letter from the Grievor's file on a without prejudice basis. If the Board decides that' it has jurisdiction to deal with the discrimination and harassment grievance, counsel ~for the Employer acknowledged that we had jurisdiction to make a declaration that the actions of the Employer amounted to discrimination or harassment, to order the apology requested, and to award damages. We were asked to note, however, that the request of the Grievor for damages, as transmitted to the Employer~after the grievance was filed, was in the amount of $20,000. We were also asked, in the event that damages were a~arded, that they be nominal in the. absence of medical evidence supporting them. If we did otherwise, it was· submitted that we would be awarding damages on the basis of the Grievor's subjective assessment as to how the alleged acts of discrimination and harassment affected his physical and. emotional health. In reply to the preliminary objections of the Employer, counsel for the Union stated: ..... 1. The eu~e~ce relating to the preuiou~ relations between the Grievor and Mr. Berg was not being tendered for the purpose of raising a new complaint, but by way of explanation to enable the incidents of December 1988 to be understood and interpreted; these incidents being the reportin9 requirement and the desk assignment incident. . 2. In responding to the objection that the desk incident was not properly before us, counsel for the Union argued that the Board, in determining the scope of a grievance, ought not to be too technical. We were asked to find that the grievance, as framed, was broad enough to cover both incidents and that the incident with respect to the desk assignment occurred at approximately the same time as the reporting requirement was imposed, and that the two matters were inextricably intertwined. It was submitted that the factual characterization of the grievance more properly envisaged the events complained of as a single incident having two components. We cannot agree with this characterization. The evidence with respect to discrimination and harassment was said to be a manifestation of the 11 Employer's bad faith in the purported exercise of its discretion in carrying out its management functions under. s.18(t) of the Crown Employees Collective Bargaining Act which had health and safety consequences within the contemplation of art. 18.1 of the collective agreement. That is, the allegations of discrimination and harassment were said to be based on a violation of a specific provision of-the collective agreement. Cf. Welsh supra, at po18. In support of his argument, counsel for the Union relied on the case of Bous~uet (541/90 etc.), decided by a panel of the Board chaired by the present Vice- Chairperson, the award being dated March 1, 1991. At page 19 of the interim decision, we state: Counsel for the Union, in responding to the preliminary objection of counsel for the Employer, amended an earlier position taken by him. He indicated that he was relying on the alleged actions of discrimination and harassment on the part of the representatives of the Employer as evidence of bad faith which had the effect of undermining of the Grievor's rights under art. 18.1 of the collective agreement. He emphasized that he was not claiming that the actions of the representatives of the Employer, which he intended to rely upon, represented a bad faith exercise of some right of the Employer under section 18(1) of the Crown Employees Collective Bargaining Act which was, in reality, a disguised form of discipline. Rather, his argument was that the bad faith exercise of the Employer's management rights violated the Grievor's rights under art. 18.1 of the Collective Agreement to have a safe and healthy work environment. At page 20 of the interim decision we state: What we will have to decide is whether "the thrust of [the] grievance is a health and safety issue under article 18.1." If the Employer issued Exhibit 2 in good faith for the legitimate purpose of monitoring the Grievor's attendance., counsel for the Union acknowledged that art. 18.1 could not apply. If the decision was made in bad faith for the purpose of discriminating against the Grievor and to harass him, we will still have to decide if that is the kind of conduct that was envisaged as being capable of amounting to a violation of art. 18.1. At pp.20 - 21 of the interim decision we state: The position of the Employer is that it was carrying out its exclusive function to manage under s.18(1) of the Crown Employees Collective B~rgaining Act. It would have been open to-the-Union'to show that the Employer was not carrying out its management function in a bona fide manner but was engaging in a disguised form of discipline, as was ultimately found by the arbitrator in Metro Police when the matter was remitted to her following the decision of the Court of Appeal. In the case before us, counsel for the Union disc]aimed any intention to establish that that was the case. At pp.23 - 24, we ~tate: Accordingly, in the case of the allegations contained in the grievance relating to discrimination and harassment arising out of. the implementation of the direction in Exhibit 2, although the Board ~is not now deciding the question of whether the alleged acts of discrimination and harassment could amount to a breach of the Employer's responsibilities under art. 18.1, it has concluded, as it did in Bousquet, that the Union should have the opportunity of adducing evidence at the continuation of the hearing with respect to that issue, and to endeavour to establish that, on the facts, there has been a violation of art. 18.1. At that time we'would expect to hear further argument as to whether art. 18.1 envisages protection for an employee from the acts of discrimination and harassment alleged to have been carried out~ by the Employer. That is, when stated in terms of the article: The provision for the safety and health of the Grievor that the Union wishes the Employer 'to make is not to use its management powers so as to discriminate against the Grievor or to harass him. As acknowledged by Counsel for'the Grievor, it would be unreasonable to expect the Employer to refrain from imposing a monitoring requirement on the Grievor, if it did so in good faith, even if this resulted in his becoming ill because of his erroneous perception that the Employer was acting in bad faith and was intent on discriminating against him and harassing him. What the Union says is that it would not be unreasonable for the Employer to refrain from the same conduct where it was not bona fide pursuing a legitimate management objective, and where ~ts actions "put at risk the [employee's] health and safety." 13 As was observe~ in Blaine Warden, at p.3, management cannot put an employee at unreasonable risk. In most cases good faith in the exercise of management rights would be irrelevant if there were a violation of art. 18.1. In cases such as the one before us, for the reasons explained above, the existence of good faith may affect a determination of whether the provision is a reasonable one. At pp.24 - 26 of the interim decision, we state: Close to the conclusion of the hearing, counsel for the Employer amended his preliminary objection to the enlargement of the grievance to include the desk incident. He did not now object to evidence being led with respect to this allegation, but. reserved the right to r~ise the matter again at the continuation of the hearing, if, in his view, the facts with respect to the treatment of the matter by the parties during the grievance procedure and at the pre-hearing was not as has been represented by the Union. That is, that the Employer had not objected to the matter being raised and treated as the real grievance. Counsel for the Union agreed to this procedure. To the extent that the reference to the desk incident is intended to represent evidence of discrimination and harassment, and hence represents evidence of a bad faith interference with the Grievor's rights under art. 18.1 of the collective agreement, subject to the Employer's continued right to raise the issue of our jurisdiction to treat the desk incident as part of the grievance, our response is the same as that with respect to the allegations arising out of the issuance of Exhibit 2, To the extent that the Union alleges that placing the Grievor in a work area where he was subjected to breathing cigarette smoke for a period of three working days may constitut.e a failure on the part of the Employer to make reasonable provision for his safety and health during the hours of his employment, as is required under art. 18.1, the grievance is arbitrable, subject to the right of the Employer to argue, at the continuation of the hearing, that it never acceded'to treating the desk incident as part of the grievance, either during the grievance procedure or at the pre-hearing stage. That is, without any reliance on the alleged acts of discrimination and harassment. If we find that the Employer did not accede to the enlargement of the grievance during the grievance period or at the pre-hearing stage, then the wording of the grievance, ~'as it stands, is not broad enough to give notice to the Employer that the desk incident was being relied upon, and allegations with respect to it wo~ld be inarbitrable. We are ~prepared to hear evidence relating to the prior relationship of the Grievor and his previous supervisor Mr. Berg, not as raising a new grievance Which, if upheld, would permit the granting of appropriate relief, but only as contextual evidence bearing on the interpretation of the complained of conduct of the Employer's representatives which may be found to be properly before us. It may be that once we commence hearing the evidence dealing with the incidents properly before us, we w~ll be in a.better position to decide how much of the evidence dealing with the prior. relationship of the Grievor and Mr. Berg is sufficiently relevant to warrant our hearing it. This is a most unfortunate case involving a long term employee of the Ministry whose seniority dated from 1969. The evidence indicated that Mr. Berg was Mr~ PireS' supervisor from about 1970, and that for some time their relationship was not good. It is clear that Mr. Pires believes that Mr. Berg had an unfounded animosity towards him; that Mr. Berg had frequently harassed and belittled him; and that this resulted in his his physical and mental health being undermined. We are satisfied that the poor relationship between Mr, Pires and Mr. Berg was known to Mr. Siddiqi and Mr. Wilson. There was no evidence, however, to indicate that they had taken sides in the ongoing conflict. We are satisfied that the decision to place Mr. Pires under Mr. Wilson's supervision~was based on a genuine desire to defuse the situation. Our jurisdiction does not permit us to comment on whether it was the GrieVor or Mr. Berg who bore the responsibility for their poor relationship, and the evidence we heard on the'subject was by way of background to better understand the evidence relating to the grievance before us involving Mr. Wilson and Mr. Siddiqi. Mr. Pires'allegations were very fully explo~ed over a period of three days. We can see how, from his perspective, the actions which he complains of could be regarded as an attempt on the part of management to make his working life more difficult and uncomfortable. From his perspective, monitoring his attendance, the initial assignment of a desk near a smoker, the failure to provide him with a telephone, and the time that it took to assign him to a desk in an area where he Would not be bothered by second hand smoke and where he would have a telephone represented a continuation of the past harassment by Mr. Berg that he complained about. After examining all of the evidence, we are satisfied that Mr. Wilson and Mr. Siddiqi were insufficiently sensitive to Mr. Pires' feelings and the extent to which he might, in all of the circumstances, interpret what might appear to them to be innocuous behaviour as being something more sinister. Nevertheless, we are unable to find that either Mr. Wilson or Mr. Siddiqi had the motives ascribed to them b~ Mr. Pires when they engaged in the conduct complained of. Although concerns that management had 'with respect to Mr. Pires' attendance could have been addressed with more sensitivity, such insensitivity as existed was not a result of a bad faith exercise by management of its acknowledged right in this area. Management genuinely believed there was a problem, although its perceptions may have been inaccurate, and undertook what was believed to be a means of resolving the matter in a manner that was acceptable to Mr. Pires. The fact that they were wrong does not alter our conclusion that there was no bad faith in the decision to monitor Mr. Pires' attendance and the way it was carried out. Similarly, the way in which desk space was originally obtained for Mr. Pires, in an area where he might experience a problem from second-hand smoke, was also LinSen~tive. But the evidence also disclosed that management did not deliberately place Mr. Pires in an area where~its represehtatives believed he would be bothered by second-hand smoke. When he was first alloted desk space, management believed that he would not be affected by smokers in the area because of the existance of a well where smoke was expected to dissipate. A little more care in the placement of Mr. Pires, as well as consultation with him, would l~kely have avoided the problem. This is a case of creating a problem through a lack of sufficient forethought rather than through deliberate intention. We do not believe that the Employer deliberately placed Mr. Pires at a desk without a telephone with a view to harassing him. We also find that there was a belief, perhaps incorrect, that the work then being performed by Mr. Pires did not require a telephone. We also find that the few days that it took to relocate Mr. Pires was understandable. We might view the desk incident differently if no attempt had been made to accommodate Mr. ~ires within a reasonable period of time. Without ascribing blame for the poor working relationship between Mr. Pires and Mr. Berg, it i~ evident that the considerable period of time spent working under Mr. Berg was very hard on Mr. Pires. In his mind he had been emotionally abused by his supervisor and' higher management were turning a blind eye to the situation. Although transfering Mr. Pires to a new supervisor was intended to end a dark period in~ Mr. Pires' life; upon being transferred, he immediately perceived that his problems were not over,as his newLsupervisor Mr. Wilson, as well as Mr. Siddiqi, appeared to him to be intent on "harassing" him. How else could he interpret what he regarded as the unwarranted monitoring of his attendance and the shabby treatment given him when he was assigned to a desk in an inappropriate area without certain services that he regarded as ~tal to carrying out his responsibilities? As we have noted, when all of the evidence is examined, what emerges are a number of actions involving Mr. Wilson and Mr. Siddiqi which are equivocal, The decision to monitor Mr. Pires' attendance is shrouded in a welter of confusing facts, 18 nevertheless, having had an opportunity of seeing a~d hearing Mr. Wilson and Mr. Siddiqi, we are satisfied that they had no intention' to harass the Grievor, ~lthough we must conclude that they were somewhat insensitive to Mr. Pires' feelings. We are satisfied that they were not dissembling when they testified and that they were genuinely surprised that what they regarded as innocuous conduct had such a negative effect on Mr, Pires. In hindsight, they would, no doubt, have undertaken the attendance monitoring with more attention to Mr. Pires' feelings and they wou~d have, at least, postponed transferring Mr. Pires to a new work area until they were satisfied that it would create no discomfort for him because of the presence of second hand cigarette smoke. In the result, we are satisfied that the actions complained of were taken by Mr. Wilon and Mr. Siddiqui in good faith and for genuine business purposes and without any intention to harass Mr. Pires or to place him in a position.where he might suffer adverse health effects. We are also satisfied that the actions complained of could not be regarded as sufficient to amount to a violation of article 18.1 of the collective agreement. For these reasons we must dismiss the grievance. However, in doing so, we a6knowledge the very real injury to Mr. Pires' feelings. This is, however, not. a basis for our finding a violation of the collective agreement. Because of our findings, as set out above, it is unnecessary for us to rule (1) on the Employer's objection to arbitrability as 19 it relates to the desk incident; (2) on the argument that a claim for harassment is not arbitrable; or (3) on 'the objection to the attempt to raise the amount claimed for damages. .We would point out, however, that if we had allowed the grievance, such damages as may have been suffered by Mr. Pires would, to a considerable extent, relate to that period when he was under the supervision of Mr. Berg, and there is no claim before us that we could deal with relating to that period. We would also observe that it would have been most difficult to award any substantial amount for damages in the absence of expert testimony from a physician. In makingg these comments, we emphasize that it was unnecessary for us to rule on the question of damages nor have we, as a result of the denial of the grievance, done so. Dated at Toronto this 7th da~ of Au§u~t1992. M. G~orsk~y ~?V~ic~t/~hairperson - Member - Member