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HomeMy WebLinkAbout2014-3136.Groves.16-07-22 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2014-3136, 2014-3137 UNION#2014-0517-0026, 2014-0517-0027 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Groves) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Gail Misra Vice-Chair FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Cathy Phan Treasury Board Secretariat Legal Services Branch Counsel HEARING July 7, 2016 - 2 - Decision [1] The parties referred this Grievance to mediation/arbitration in accordance with Article 22.16 of the collective agreement. At the outset of the proceeding the parties agreed that I had the jurisdiction to deal with these matters. They asked that I issue a decision without precedent or prejudice, and without written reasons. [2] Michael Groves, a long service Correctional Officer at the Toronto West Detention Centre, filed a grievance dated August 6, 2014, alleging breaches of Articles 2, 3, and 9 of the collective agreement, along with the Employer’s Workplace Discrimination and Harassment Policy (WDHP), the Poison Work Environment Policy, Bill 168 and the Human Rights Code, section 5(1) (the “Harassment, Discrimination and Reprisal grievance”). The grievance alleges in particular that the Employer has engaged in ongoing harassment and discrimination against the grievor, and that it has taken a reprisal against him for a previous human rights complaint. He seeks $1 million in damages, among other redress. [3] On September 14, 2014 the grievor filed a second grievance, claiming breaches of Articles 2, 3, and 21 regarding a ten (10) day suspension he received (the “Ten-Day Suspension grievance”). He seeks full redress in that grievance. [4] At the hearing the grievor also wished to add to his grievances that in late September 2014 he had written an Occurrence Report in which he complained about being called a “retard” by an individual in the workplace, and being given an article two days later, from the same individual, with that word in it. The grievor had asked for mediation, but no action was taken by the Employer. No grievance was filed regarding that matter. In the grievor’s view, all of the issues that have arisen and that are complained of in the two grievances, and the third incident relied upon, are as a result of his having filed a grievance in February 2009 alleging discrimination due to his learning disability, and the Employer’s failure to protect him in the workplace (the “Discrimination grievance”). That matter was litigated before this Board, and a decision in the grievor’s favour issued on October 14, 2014. The grievor therefore maintains that all that has followed the filing of the Discrimination grievance is in reprisal against him for his earlier complaint. [5] Having heard the Employer’s submissions objecting to the Union’s reliance on the Occurrence Report, I ruled orally that in the absence of a grievance regarding that matter, I had no jurisdiction to address it as it was a different matter, which had arisen after the filing of both of the grievances that have been referred to me. [6] The parties made their submissions on the two grievances based on an Agreed Statement of Facts, and documents that were jointly submitted. - 3 - [7] The Discrimination grievance was heard between February 27, 2013 and June 11, 2014. One of the scheduled hearing dates was November 22, 2013. On November 20, 2013 the grievor was given an allegation meeting letter advising that certain allegations regarding his personal use of social media would be discussed with him on December 11, 2013. He was also advised of the policies and procedures he was alleged to have violated, and in particular, the OPS Social Media Guidelines on Personal Use of Social Media and the Statement of Ethical Principles for OPS employees. As well, copies of the various policies and guidelines were provided to him with the November 20th letter. [8] The Employer was concerned about a tweet sent by the grievor in March 2013 in which the commentary regarding a car was sexually suggestive, and the car had been anthropomorphized as female. The grievor received a Letter of Counsel dated December 8, 2013 regarding that tweet, and was advised that inappropriate and disrespectful comments on social media, even if communicated outside the workplace, could have serious negative consequences in the workplace. That letter was not disciplinary in nature, but was intended as counseling to clarify the grievor’s responsibilities under the Employer’s various policies. [9] In January 2014 the grievor was called to another allegation meeting regarding two tweets he was alleged to have sent. However, the Employer ultimately found no violation of the OPS Social Media Guidelines on Personal Use of Social Media in that instance, and the grievor was cleared completely. [10] On June 17, 2014 the grievor received a letter dated May 29, 2014 from the Employer. He was advised of another allegation meeting regarding his use of social media. This letter was received after the last day of hearing (June 11, 2014) in the Discrimination grievance. At issue were an April 14, 2014 and a May 17, 2014 posting on the grievor’s Twitter account, both of which he was alleged to have re-tweeted. [11] At the allegation meeting, held on July 15, 2014 the grievor denied having any involvement with one of the messages, and indicated that he had accidentally re- tweeted the other message. The first message used the “retard” word, and the grievor was therefore particularly offended that the Employer was ascribing the use of that word to him in light of the lengthy litigation he had been engaged in because he felt that he was being discriminated against based on his learning disability. [12] It is the second message that is the basis of the 10 day suspension. The second message was identified by the grievor to the Employer as spam which he had received in his Twitter account, and which he had inadvertently re-tweeted. It contains an extremely offensive picture of a woman in a compromising position (the “US Airways tweet”). The grievor acknowledged at the allegation meeting that the tweet was inappropriate, and noted that he had two daughters, so he would not have intentionally re-tweeted material that would so be offensive to women. - 4 - [13] In the period of July 9 to 16, 2014 Kacy Cumming, Labour Management Liaison, and Sandra Partridge, the Deputy Superintendent at the facility, had an email exchange in which Ms. Partridge noted that the alleged re-tweets were not within the scope of the WDHP, and that she had been unable to verify if the tweet had come from an OPS work computer. She also indicated that one could not identify that the sender was a Correctional Officer, and the person had not used an Ontario logo or any Ministry identification. [14] The grievor went off work sick after the July 15, 2014 allegation meeting, and did not return to work until August 6, 2014. He filed the harassment grievance thereafter. [15] On August 20, 2014 the grievor was given a ten-day suspension for the US Airways tweet. The Employer concluded that the other tweet was unsubstantiated. It apparently did not come from the grievor’s Twitter account at all. The Ten-Day Suspension grievance before me was therefore filed on September 3, 2014. [16] Throughout the periods in question above, the grievor maintained an open and public Twitter account, with no privacy settings. He did so despite the earlier counseling letter of December 2013, and having received copies of the Employer’s policies regarding the use of social media. However, there is no dispute that nothing in the grievor’s Twitter handle or profile summary suggested that he worked for the Provincial government, or as a Corrections Officer. There is no evidence before me regarding how the US Airways tweet harmed the Employer’s reputation. [17] Having considered all of the evidence before me, the parties’ submissions, and the jurisprudence, the Ten-Day Suspension grievance is upheld. I direct that the ten-day suspension be removed from the grievor’s record, and that he should be made whole with respect to any losses he incurred as a result of having served the suspension. [18] With respect to the Harassment, Discrimination and Reprisal grievance, the Union has not met its onus of proving on the balance of probabilities that the Employer was bringing its concerns regarding the grievor’s use of social media to his attention as a reprisal for his having filed and pursued to arbitration his original Discrimination grievance. There is no evidence before me to suggest such an intention on the part of the Employer. [19] It is not harassment for an employer to bring to an employee’s attention concerns it may have regarding that employee’s use of social media, especially where that employee has an open account that may be subject to scrutiny by anyone, including the employer. In this instance, the grievor knew that the Employer was following the tweets of at least some of its employees, and he could have conducted himself accordingly. - 5 - [20] I further find that it was not a discriminatory act on the part of the Employer to bring to the grievor’s attention the tweet that contained the word “retard”. While it would have behooved the Employer to have more closely checked the tweet to ensure it was one sent by the grievor before it brought that, or any, tweet to his attention, it was apparently a mistake, and the Employer conceded that. It did not rely on that tweet when it meted out the discipline given in August 2014. [21] The Harassment and Discrimination grievance is hereby dismissed. [22] I will remain seized in the event that any issues arise out of the implementation of this decision. Dated at Toronto, Ontario this 22nd day of July 2016. Gail Misra, Vice Chair