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HomeMy WebLinkAbout1989-0247.Homavazir.90-05-31 ONTARIO ! EMP£OY~S DE LA COURONNE CROWN EMPLOYEES DE L'ON TARtO GRIEYANCE C,OMMISSION DE SE'n'LEMENT ' REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARI0. MSG 1Z8. SUITE 2100 TELEPNONE/T£L~PNONE 180, RUE OUNDAS OUEST, TORONTO, (ONTARIO) M~G lZ8 - BUREAU 2100 (416) 598.068,9 ~.47/89 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SZTTLENENT BOARD OPSEU (Homavazir) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE: R.L. Verity , Vice-Chairperson M. Vorster Member A. Merritt Member FOR THE J. Bouchard GRIEVOR: Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Hewat EMPLOYER: Counsel Fraser & Beatty Barristers & Solicitors BEARINGS: November 8, 1989 March 7, 1990 DECISION In a grievance dated March 30, 1989, Dara Homavazir, a Property Administrator at the Pickering Land Management Branch of the ~inistry, alleges harassment by his supervisor.' The grievance reads as follows: Mr. Geoff Spring, Area Manager, ~ickering Office M.G.S. continues to harass and intimidate me both in the form of verbal and written memorandums. Contrary to article 18.1 of the collective agreement. The grievor requested the following remedial relief: The ~b~e refrain from this intimidation and harassment, and ' that he comply with the collective agreement. The grievor has been employed at the Green River, Pickering Office since February 18, 1982. The office was under the jurisdiction of the Ministry of Housing until a "merger" in April, 1987 when the current Ministry assumed responsibility for property administration. The grievor is one of several employees responsible for the maintenance and leasing of primarily residential properties, including a 25,000 acre parcel of land known as the North Pickering Land Assembly. The grievor's position requires that he does both field work and office work. The hours of work at the Pickering Office are 8:30 a.m. to 4:45 p.m. The grievor maintains that he took the position initially on the understanding that, because of family committments with two small children, he would be required to work from 7:30 a.m. to 3:15 p.m. Area Manager Spring testified that there was no such agreement or condition of employment. However, it is common ground that at the §rievor's request, at some point in 1982, he was authorized to work flexible hours from 7:30 a.m. to 3:15 p.m. The arrangement continued until the grievor received a memorandum from Mr. Spring advising that commencing December 5, 1988, his starting time would be 8:30 a.m. The reason given included shortgage of staff and increased workload in the afternoons due to the grievor's leaving work at 3:15. However, the memorandum authorized the grievor to leave the office at 4:15 provided that he took a one-half hour lunch break. According to the grievor, he was greatly inconvenienced by the change in working hours. The grievor alleges that his working relationship with supervisor Spring deteriorated when he returned late, as a result of illness, from a trip to India. According to the grievor, from that time forward~he has been harassed by Mr. Spring both verbally and through a series of inter-office memoranda. The Union alleges that the harassment memos are dated April 24, 1987 (Exhibit 4), July 4, 1988 (Exhibit 8), February 10, 1989 (Exhibit 9) and March 14, 1989 (Exhibit 10). Further, the grievor alle§es that the harassment adversely effected his health and which caused him to be off work as a result of illness from November 30, 1988 to January 25, 1989. The only evidence in that regard is the grievor's own testimony. There was no medical evidence adduced. Martha Rios testified on behalf of the Union that she worked at the Pickering office for a ten month period from December, 1985 to September or October, 1986. The thrust of her testimony was that she wasn't happy working for Mr. Spring who she believed was unduly critical of her work and subsequently requested a transfer to head office in Toronto. However, Ms. Rios filed no grievance while working at the Pickering office. Union Steward, Jim Glenny, testified with regard to a rather unpleasant encounter he had with Mr. Spring on the telephone in mid-November, 1988. Apparently this conversation occurred in connection with a prior grievance filed by Mr. Homavazir. The Union argues that the Employer is estopped from changing the 9rievor's hours of work and that the evidence supports a finding of harassment by Supervisor Spring against the grievor. The Union relies upon the following authority in support of an estoppel: OPSEU (Karen Brown) and Ministry ~f Community and Social Services, 513/86 (Barrettl. On the issue of harassment, the following authorities were submitted: OPSEU (Gerald Col~uhoun) and Ministry of Revenue, 129/84 (Jolliffe); and Dufour et al v. Roger. Deschamps Comptable Agree et al. 89 CLLC, 17,019 (Ontario Human Rights Board of Inquiry). The Employer contends that the Board has no jurisdiction to review a change in hours of work which is within the exclusive authority of management. The thrust of the Employer's argument was that the evidence did not support a finding of harassment and in the alternative, there was not sufficient evidence to find that the grievor's health was placed in jeopardy by the supervisor's conduct. The -5- Board was referred to the following authorities: OPSEU (A. Taylor-Baptist) 0163/87 (Kennedy); Haladay and Ministry of Industry and Tourism, 94/78 (Swan)~ OPSEU (Lee Whitehead et al) and Ministry of Natural Resources, 198/82, 199/82, 200/82, 201/82, 202/82 (Roberts); Joy Tsiang and Ministry of Industry and Tourism, 352/81 (Jolliffe); Doris Fournier and Ministry of Health, 86/76 (Beatty)~ OPSEU (Changoor), 526/82 (Verity); OPSEU (B. Maddock) and Ministry of Community and Social Services, 1947/87 (Deli'sle); OPSEU (Algerson et al) and Ministry of Government Services, 1942/87 (Watters); OPSEU (Bacchus) and Ministry of Correctional Services, 911/88 (Watters}; OPSEU (Van Der Akker) and Ministry of Correctional Services, 2542/87 (Fisher); OPSEU (Koh) and Ministry of Health, 1335/88 (Gorsky)~ and OPSEU (Gerald Col~uhoun) and Ministry of Revenue, 129/84 (Jolliffe). The grievance before us is based exclusively on a claim of harassment contrary to the health and safety provisions of Article 18.1 of the Collective Agreement. The issue, therefore, is whether or not the conduct complained of constitutes harassment and if so, whether such conduct violates the provisions of Article i8.1. ..We adopt the rationale of Vice-Chairperson Fisher in OPSEU (Van Der Akker) and Ministry of Correctional Services, supra, where he states at p. 2: ...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 also a specific violation of the Collective Agreement upon which a grievance is based. At the Board's request, following the hearing the Parties submitted briefs on the definition of harassment which included the Ontario Government Policy on Personal Harassment. The Ontario Manual of Administration makes it clear that it is the policy of the Government of Ontario that "every employee in the Ontario Public Service can expect to be afforded a work environment free of personal harassment". The Manual goes on to define harassment as follows: The Ontario Human Rights COde definition and its interpretation in A Guide to the Human Rights Code shall a~lyt Ontario Human Rights Code, 1981, definition: "Harassment means engaging in a course of vexatious comment .or conduct that is known or ought reasonably to be known to be unwelcome." . Interpretation from A Guide to the Human Rights Code, 1981: "Harassment is a course of comment or conduct consisting of words or actions that disparage or cause humiliation to a person in relation to one of the prohibited grounds." The Government's policy also states that "managers are responsible, upon becoming aware that harassment is occurring, for dealing with it even though no formal complaint is forthcoming". Further, the policy specifies that "the Human Rights Code provides that a person who has the authority to prevent and discourage harassment may be held responsible for failing to do so". A finding as to whether or not alleged 'conduct constitutes harassment must be made on an objective assessment of the evidence adduced and not on the subjective perception of the grievor. Obviously, in these particular circumstances, the grievor has convinced himself that he has been harassed by Area Manager Spring. In our opinion, the evidence viewed in its entirety fails to support any such finding. Ms. Rios' evidence does not assist the grievor during the relevant t~me period. SimPly stated, there was no evidence of vexatious comments or conduct towards the grievor. The four memoranda sent by Mr. Spring to Mr. Homavazir are non-disciplinary in nature and contain reasonable management enquiries and directives written in moderate language. We are satisfied that each memorandum was issued by Mr. Spring for legitimate business reasons and for no improper purpose. As a result of this finding, it becomes unnecessary to consider the nexus between the alleged conduct and the health and safety provisions of Article 18.1. Had we been required to do so, i£ is unrealistic to expect that any nexus would have been found in ~he absence of persuasive medical testimony. In all ~robability this ~rie~ance arises, at least in p~rt, from the grievor's general dissatisfaction with the change in his hours of work. In our opinion, this is not a case for the application of the doctrine of promissory estoppel. On the evidence adduced, we are satisfied that at no time did the Employer give any assurance or guarantee as to the grievor's hours of work. Admittedly, the Employer acquiesced in the grievor's request for flexible hours for 'a period of some 6 years to accommodate his 6oncern for his young family. The decision in November, 1988 to change the gri~vor's hours of work was a legitimate exercise of a management right based on an increased workload, the recent retirement of a Property Administrator, and the desire to provide the best possible service during normal business hours. Indeed, it can be said that the Employer was flexible to the extent that the grievor was permitted to leave work one-half hour early at 4:15 p.m. For all of the above reasons, this grievance is dismissed. DATED at Brantford, Ontario, this 31' day of May, 1990. M. VORSTER - MEMBER