HomeMy WebLinkAbout2015-0637.Daley.17-01-05 Decision
Crown 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#2015-0637, 2015-0820, 2015-1000, 2015-2498, 2015-2551, 2015-2756,
2015-2757,2015-2758, 2015-2945, 2016-0141, 2016-0142, 2016-0182, 2016-0354,
2016-0355, 2016-0765, 2016-0766, 2016-0801, 2016-0802
UNION#2015-0545-0003, 2015-0545-0005, 2016-0545-0006, 2015-0545-0013,
2015-0545-0014, 2015-0545-0015, 2015-0545-0016, 2015-0545-0017, 2016-0545-0001,
2016-0545-0007, 2016-0545-0008, 2016-0545-0009, 2016-0545-0013, 2016-0545-0014,
2016-0545-0016, 2016-0545-0017, 2016-0545-0018, 2016-0545-0019
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Daley) Union
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The Crown in Right of Ontario
(Ministry of Health and Long-Term Care) Employer
BEFORE Bram Herlich Vice-Chair
FOR THE UNION Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Roslyn Baichoo
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING November 17 and November 23, 2016
Decision
[1] The union has advanced 18 grievances (filed between March 2015 and
June 2016) on behalf of Kharl Daley (the “grievor”) to arbitration before me. This
decision deals with the employer’s preliminary motions seeking, on a number of
grounds, to have a dozen of these grievances dismissed without any further hearing.
The six grievances which have escaped the net of the employer’s motions are GSB File
Nos. 2015-2758; 2016-0182 and 2016-0802, which all deal with the just cause of minor
disciplinary sanctions (a letter of reprimand, a one-day suspension (of sorts) and a
three-day suspension, respectively). These grievances will remain as part of the
proceedings before me when the case continues on its merits. The parties also agreed
that a further three grievances (2016-0142; 2016-0765 and 2016-0766) would not form
part of the instant proceedings as they all deal with a unique subject matter (which the
parties described as “bargaining unit integrity” issues). Thus, on the agreement of the
parties, these latter three grievances are hereby (to again borrow the parties’
nomenclature) “de-consolidated” from these proceedings and remitted to the parties to
schedule in the normal course.
[2] The contest in the instant matter pits the general against the specific. So I
start with some general observations. The vast majority of the grievances currently
before me are ones that allege harassment, bullying, discrimination or other improperly
motivated conduct on the part of the employer. The grievances themselves are laden
with boilerplate legal conclusions asserting violations of, among other things, the
collective agreement, the Ontario Human Rights Code, the Occupational Health and
Safety Act, the Ontario Labour Relations Act, and the Canadian Charter of Rights and
Freedoms. However, while the grievances are dense with these legal conclusions, they
are largely devoid of any specifics that would allow the reader to discern what events or
conduct is the subject of the individual complaints. In the face of that lack of specificity
the employer requested particulars of the union’s case. These were provided.
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[3] However, despite the provision of 84 paragraphs of particulars in relation
to all of the 15 consolidated grievances (the original 18 minus the three de-consolidated
ones), the employer moved before me to dismiss twelve of these. The employer asserts
that, even if the facts asserted therein are assumed to be true and provable, the
grievances fail to establish a prima facie case for the relief they claim. In respect of a
few of the grievances the employer advanced alternative grounds for dismissal,
asserting in some cases that the grievances were moot or that the evidence the union
seeks to adduce should not be received as doing so would infringe upon the privilege
normally associated with discussions taking place in the context of settlement or
mediation efforts.
[4] I will deal with the employer’s alternative positions, as necessary. This
decision will focus primarily on the no prima facie case motions. For the purposes of this
decision, I will assume that all of the facts alleged by the union are true and provable.
These facts are gleaned from the grievances read together with the particulars and the
supporting documents filed by the union. In some cases, these were marginally
augmented by further facts and documents the parties asked me to consider.
[5] Before examining details of the grievances through the prism of the
employer’s objections, I note the following. The union acknowledged that, at least some
of the grievances, when viewed in isolation, may appear somewhat minor (a
characterization which, in my view, may be putting the union’s case at its highest). But,
the union continues, when all of the allegations, all of the impugned employer conduct is
considered in its totality, a continuing pattern of improper conduct becomes clear. In
other words, in the union’s view, the sum of all of its allegations is greater than and
qualitatively different from its aggregated components. This is where the macro view of
all of the allegations might diverge from the detailed examination of the individual
grievances. Still, while I note the union’s preference for the “big picture”, I must, of
course, consider, in turn, each of the grievances the employer seeks to have dismissed.
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[6] In that context, I will, with some occasional comments which apply more
broadly, review the grievances individually to see if, based on the pleadings (which, in
this case I take to include the grievances themselves; the particulars filed by the union;
various documents the parties agreed I might consider for the purposes of his decision;
and, in some cases further augmentation of facts provided by the parties during the
course of the hearing), a prima facie case of any violation of the collective agreement
has been made out. If necessary and to the extent I find (as I will) that some grievances
ought otherwise to be dismissed, that determination will be subject to a further final
consideration. I will, at the conclusion of this award, consider all of the grievances
together, given the union’s urgings about the picture that emerges when all (including
the “minor”) grievances are considered together.
I turn now to a consideration of individual grievances.
[7] The first two grievances (GSB File Nos. 2015-0637 and 2015-0820) can
be dealt with together. The facts pleaded in respect of these grievances are as follows:
1. The Grievor, Kharl Daley is a Warehouse Clerk 2. He has worked for
the OPS since approximately 1998, with the Ministry the entire time.
He has worked for the Ministry in his current position since 2009, and
came to his current position through the redeployment process.
2. The Grievor is also Chief Steward with his Local and has been active
with the union for approximately the past ten (10) years.
3. The Grievor’s current supervisor is Vladimir Yarosh. He became the
Grievor’s supervisor in and around 2014.
4. On December 5, 2014, the Grievor entered into an MOS regarding
several prior grievances.
5. That MOS provided, at paragraph 2, that no documents associated to
discipline that the Grievor received would be kept in his file.
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6. Beginning in January, 2015, the Grievor tried for months to see his
corporate personnel file but was not provided with dates from the
employer to do so until March, 2015.
7. Management provided taxi chits for the Grievor to attend at the
corporate office and view his personnel file but demanded that he
only tip the taxi driver $1.00, citing a policy that related to travel and
hospitality. Further, the policy itself called for a 10% tip, not a $1.00
tip.
8. The Grievor takes the position that management insisting that he tip
$1.00 was insulting, discriminatory and constitutes harassment.
9. When the Grievor did finally view his corporate personnel file in late
March, 2015, he found several documents in his file that should have
been removed per the terms of the December, 2014 MOS.
10. The Grievor filed grievances OPSEU#2015-0545-0003 and 0005 as
a result of the items that he found in his file and in relation to how
they handled his requests to view his file, in particular their insistence
that he tip $1.00.
[8] These asserted facts were augmented as follows. Shortly after the grievor
advised the employer that he had found documents in his personnel file which, pursuant
to the terms of the MOS, ought to have been removed, the employer, in turn, advised
the grievor that the documents had now been removed from his file.
[9] Two other points emerge from the documents relied on. First, the union
filed an extract from the employer’s “Travel, Meal and Hospitality Expenses Directive –
FAQs” which includes the following “FAQ”:
The Directive states that tips and gratuities may be reimbursed.
What is a “reasonable” gratuity?
The Directive provides some guidelines on reasonable tips and gratuities.
What is "reasonable" will depend on what is appropriate in the
circumstances. You should use good judgment. Since a receipt is not
always a possibility when tipping, provide a description of the situation
and the amount you gave as a tip with your claim for reimbursement of
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expenses.
As guidance, the Directive lists some examples of reasonable amounts
for gratuities, including:
- 10-15% on a restaurant meal
-10% on a taxi fare …
[10] I was also pointed, in particular, to the following portion of an email sent to
the employer by the grievor upon discovering the letters in his personnel file:
After seeing the two disciplinary letters, on my corporate file, I have felt
insulted, embarrassed, discriminated against, and it has affected me
mentally and physically. This has had a profound negative impact on my
personal, family and work life.
[11] The hyperbolic tone of this email is typical of the grievor’s abundance of
written communication with the employer.
[12] In that regard, it is also useful to set out, at least the first of these two
grievances in its entirety:
Statement of Grievance
I grieve that I have been singled out and I am being issue directives that
are not in accordance with the OPS Policies and Guidelines for Travel and
Hospitality Expenses.
The actions of Management are an insult and are discriminatory to me.
This action by Management is not only limited to harassment and
discrimination under section 3.2 of the Collective Agreement but also in
reprisal and in contravention of the Memorandum of Settlement arising
from the incident of February 20/2014.
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Management attitudes towards me are re-enforcing [sic] the long-held
stereotypes of racist tendencies that are within the findings of the OPS
polls conducted.
Management different treatment towards me has left me to feel belittled
and embarrassed and robs me of the basic dignities of the Canadian
Charter of Rights.
I grieve that:
1. Management has harassed and discriminated against me contrary
but not exclusive to Article 3 (No Discrimination) of the Collective
Agreement and the Ontario Human Rights Code(OHRC); that
2. Management has consistently displayed anti-union animus contrary
to Article 3.2 (No Discrimination) of the Collective Agreement; that
3. Management has continually harassed and bullied me and provided
me with an unsafe and poisoned working environment contrary to
the Occupational Health and Safety Act of Ontario, the anti-bullying
provisions of article 3.3 (No Discrimination) and Article 9.1 (Health
and Safety) of the Collective Agreement; that
4. Management has exceeded their authority is provided for in Article
2 (Management Rights) by these actions; that
5. Management is constructively dismissing me and has retaliated and
indirectly disciplined me without just cause, contrary to Article 21
(Discipline and Dismissal) and Article 2 (Management Rights) of the
Collective Agreement; and that
6. The cumulative effect of the above actions taken by Management
against me is that I have suffered a deterioration of my mental and
physical health and well-being. This poisoned and toxic work
environment has had a profound negative impact on my personal,
family and work life.
7. And any other related articles applicable statute or principle in law
that may apply
Settlement Desired:
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I ask that Management:
1. Ceases and desists in the harassment, discrimination and bullying
against me including the unfair and aggressive behaviors;
2. Ceases and desists in the constructive dismissal and discipline
against me;
3. Accommodates me and returns me to a safe working environment;
4. Makes me whole and includes redressing the form of monetary or
tangible compensation for the suffering and mental and physical
damage done to me;
5. Provides a written apology for the damage done to me and my
family, and
6. Disciplines the managers responsible and further provides them
with Workplace Discrimination and Harassment Prevention (WDHP)
training.
7. And any other compensation deemed to be fair at the Grievance
Settlement Board.
The second grievance begins with a Statement of Grievance as follows:
I grieve that Management has violated the Memorandum of Settlement,
dated at Toronto, December 5/2014, GSB No. 2013-3239/2013-
4377/2014-2988. I grieve that these actions by Management are an insult
and are discriminatory. This action by Management is not limited to
harassment and discrimination under section 3.2 of the Collective
Agreement but also reprisal in contravention of The Memorandum of
Settlement. I grieve that this is a clear breach of the employer’s duty to
carry out the terms of the MOS in good faith.
[13] The remaining two pages of the grievance (i.e. that which appears
following the headings “I grieve that:” and “Settlement Desired”) are identical to that
reproduced in the first grievance above.
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[14] I pause to observe that the form of these two grievances is largely typical
of the dozen here under consideration in that they are replete with pages of legal
assertions, theories and conclusions which provide little relevant information as to the
actual subject matter of the grievance. But these two grievances are also atypical in that
their opening sentences in each case do contain at least some limited reference to their
actual subject matter, although, again, without providing the specific details of the
event(s) said to constitute a violation of the collective agreement.
[15] In any event, it is now clear that the first of the two grievances pertains to
the “taxi tip” issue; the second relates more directly to the alleged breach of the MOS.
The employer asks that both be dismissed without a hearing. In relation to the first, the
employer argues that whether or not it provides reimbursement of a tip on a taxi journey
is not an issue addressed by the collective agreement. Whether or not it is even a
bargainable issue, the parties have chosen to include nothing in their agreement that
even remotely approaches the territory that would permit the filing of a grievance on the
subject. Further, neither does this Board have the authority to police compliance with
the employer’s Travel Directive.
[16] Insofar as the grievance more directly related to the alleged breach of the
MOS, the employer’s position is twofold. First, even if there was a breach, it has been
remedied (the employer warrants and the union does not dispute that the letters have
been removed from the file). Thus, there is no live issue extant in respect of this
grievance and no reason to proceed. Second, to the extent the union advances this
grievance as part of an effort to establish a pattern of improperly motivated employer
behaviour, there is simply nothing apart from the legal conclusions asserted that
supports any such conclusion. And even the portion of the email reproduced above is
nothing more than a subjective expression of the grievor’s claimed emotional response.
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[17] I am in agreement with the employer regarding the appropriate disposition
of these grievances.
[18] As regards the “taxi tip” grievance, the stakes involved are quite minor
(perhaps even de minimus). And I agree with the employer that there appears to be no
specific provision in the collective agreement which, on its face, permits the union to
challenge the amount the employer directs to be paid as a tip on a taxi fare. The
employer may have been less than generous in the quantum of the tip it directed, but it
was not made clear to me what contractual obligation the employer had (perhaps even
to provide the taxi fare at all, let alone any obligation) to provide a tip that meets the
grievor’s standards.
[19] I also agree with the employer that, as a general proposition, the union
does not have the right to directly challenge the application of an employer policy or
directive which is not part of the collective agreement. And even if such a challenge
could be made, there is nothing in the facts, as pleaded, to establish that the employer
applied its policy in a fashion that was improper or discriminatory. The parties’ facts do
assert that “the policy itself called for a 10% tip, not a $1.00 tip”. But a reading of the
FAQ submitted by the parties makes it clear that the Directive provides guidelines on
reasonable tips in various contexts. Guidelines are not invariable mechanical rules to be
applied in all cases without exception. And finally, as far as any claim that the directive
was applied in a discriminatory fashion, there is nothing in the pleadings to suggest how
these guidelines have been applied in any other cases, let alone anything to suggest
that it is uniformly applied in all (or even most) cases but the grievor’s.
[20] The grievance directly alleging a breach of the MOS is more readily
disposed of. The MOS clearly contemplated that certain documents were not to be kept
in the grievor’s file. When the grievor reviewed his file some months later, he discovered
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some documents were there contrary to the terms of the MOS. This would appear to be
a clear breach of the MOS. However, the evidence is equally undisputed that upon
having that dereliction brought to its attention through the grievance, the employer
promptly remedied the situation and cured whatever breach had occurred. Thus, that is
not a live issue between the parties.
[21] The only possible issue that might remain to be remedied is that of the
damage, if any, caused by the tardy removal of documents from the grievor’s personnel
file. No damages for economic loss were claimed. And the extent of any support for any
other damage claim is the paragraph cited earlier describing the grievor’s emotional
response. I agree with the employer’s submissions that these pleadings are little more
than assertions of the grievor’s claimed subjective response. It is not sufficient for a
grievor to simply plead that “I felt bad” or “insulted, embarrassed, [or] discriminated
against”, or that “it has affected me mentally and physically”. There must be some
pleadings, referring to objective evidence to support such conclusions. The claim that
seeing documents on his file (even if they ought no longer to have been there by virtue
of the MOS) had a “profound negative impact” on the grievor’s “personal, family and
work life” is insufficient, particularly when there are no objective facts pleaded to support
such conclusions.
[22] All in all, I see no labour relations purpose to be served by continuing the
hearing into this grievance. I am persuaded that it is moot, given the employer’s prompt
response to remedy the situation and there is no fundamental extant issue. And to the
extent that a damage claim might otherwise escape such a conclusion, I am equally
persuaded that the union has failed to make out a prima facie claim for any such relief. I
will not consider this grievance any further. It is dismissed.
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[23] The next grievance, Board File 2015-1000, was filed on May 1, 2015.
Once again it is impossible to discern from the grievance itself what event(s) are
asserted to constitute violations of the collective agreement. We were advised,
however, that Paragraphs 11-19 of the particulars filed are in support of this grievance.
They read as follows:
11. On April 14, 2015, the Grievor attended a GSB hearing in his
capacity as a Union Steward representing another member (OPSEU
#’s 2012-0545-0044, 2013-0545-0036). The member’s name was
Sevag Kaltagian.
12. Counsel for OPSEU was Rosie Basa of Dewart Gleason LLP.
George Parris was employer counsel.
13. When the hearing ended in the afternoon, Ms. Basa stated to the
Grievor that a manager who was also present that day for the
employer, Dean Donaldson told Mr. Parris to tell Ms. Basa to convey
to the Grievor that he should “get back to work”.
14. Mr. Donaldson is not the Grievor’s manager. The Grievor does not
report to Mr. Donaldson in any way.
15. The Grievor found Mr. Donaldson’s comment and directive to be
intimidating, insulting and humiliating.
16. The Grievor emailed one of his managers, Shelley Gibson, Director,
Supply Chain and Facilities Branch, outlining his complaint regarding
this incident.
17. Ms. Gibson responded approximately a week and a half later,
advising she had looked into the matter, and concluded that Mr.
Donaldson did not direct the Grievor in the manner alleged. Ms.
Gibson advised the direction did not come from Mr. Donaldson but
from the ERA who was present.
18. The Grievor was not satisfied with the response because, in part, it
did not seem there was any accountability for the individual who
purportedly did give the direction in question. Further, and
fundamentally the Grievor did not believe it was not Mr. Donaldson
who gave the direction in question.
19. OPSEU Grievance #2015-0545-0006 was filed regarding this
incident.
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[24] The employer seeks to have this grievance dismissed on either of two
grounds: as the impugned communications took place during the course of (or at the
conclusion of) a scheduled mediation between the parties, the Board should not receive
this evidence as it is protected by the privilege that attaches to settlement discussions,
including mediation; the employer also asserts that the union’s pleadings fail to
establish a prima facie case of any violation of the collective agreement.
[25] Some of the correspondence filed presents a more complete picture of the
events. An email the grievor forwarded to Shelley Gibson, Director of the Branch,
included the following:
Dean Donaldson is not my manager, nor is he my senior manager and I
do not report to him in any way shape or form. I feel that this comment
was a vexatious comment made by Dean Donaldson and he ought to
have reasonable [sic] known to be unwelcome and demeaning, given
issues related to him which are presently before the GSB and other
related Bodies. I also find that this form of harassment and intimidation
must never be tolerated. It only serves one purpose which is to continue
an unhealthy and unsafe work environment.
Ms. Gibson investigated the matter and responded, in part, as follows:
I have concluded that Dean Donaldson did not direct George Parris to
instruct you via OPSEU counsel to return to work at the end of the GSB
activities on Tuesday, April 14. George has acknowledged that he may
have erroneously attributed this direction to Dean in his conversation with
OPSEU counsel. As I understand the circumstances, the Employee
Relations Advisor participating in the GSB activities that day indicated to
George that it was common MOHLTC practice for management to expect
employees to return to the workplace if GSB business wraps up early.
While this may be the case in general in terms of MOHLTC
practice/expectation, it was unfortunately interpreted as MOHLTC
management direction in this particular circumstance and delivered to
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OPSEU counsel as such. At no time did Dean Donaldson in his role as
the MOHLTC Employer Representative for the GSB matter that day
provide any direction to counsel in relation to your return to the 99
Adesso Drive workplace.
On behalf of the Employer I apologize that comments were misconstrued
as management direction which led to the concerns you raised below.
You are entirely correct in that none of the parties present on behalf of
the Employer that day were in your direct management hierarchy and
therefore not responsible for your absence from and/or attendance in the
workplace.
I trust the clarification of facts provides satisfactory resolution. Thank you
again for raising your concerns and giving me an opportunity to look into
the matter.
The grievor was not satisfied and the grievance was subsequently filed.
[26] I deal first with the privilege issue. Settlement discussions are to be
encouraged: the parties ought to be able to engage in frank and candid discussions
without fear of the consequences of such candour. The union equally supported this
principle in its submissions before me. It may be, however, as the union submitted, that
the mere fact that a communication occurs in the location and during the time (or just at
its expiry) allocated for settlement discussions, is insufficient for it to be captured by the
privilege. In other words, the mere fact that a communication takes place at the time (or
contiguous thereto), place, and between people involved in settlement/mediation
discussions does not automatically confer upon it some privileged status. One would
expect there to be some nexus between the communication and the settlement efforts.
Not every comment, extraneous or otherwise unconnected to those efforts, is likely to
be caught by the application of privilege. The determination in any given case may
require some balancing between the conferral of privilege to encourage settlement
discussions and the exclusion of otherwise relevant evidence. I have significant doubts
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regarding the application of the asserted privilege to the facts at hand. But despite
those doubts, I am still persuaded that this grievance ought not to proceed.
[27] It is, as is generally the norm in these grievances, difficult to understand
what the precise subject matter of the grievance is. If the grievor was provided with a
direction to return to work, there is no evidence or suggestion as to whether or not he
followed that direction and, if not, whether any discipline resulted. However, as this is
clearly not a discipline grievance, it appears not. Rather, the grievor appears to have
been offended by the fact that someone who is not his supervisor and, in particular, Mr.
Donaldson, issued a direction to return to work. The grievor does not dispute the
expectation as described in Ms. Gibson’s email.
[28] In any event, Ms. Gibson investigated the grievor’s complaint and, while
advising of some factual inaccuracy, nonetheless apologized to the grievor for a
communication that originated with someone without specific managerial authority over
the grievor. The grievor was not placated.
[29] Quite apart from the issue of what specific provision of the collective
agreement is engaged by the grievance, it appears that, given the contrary factual view
expressed in Ms. Gibson’s email the pleadings do not appear to establish the facts
apparently complained of. To the extent that the grievor’s claim is centered on Mr.
Donaldson having issued the impugned direction, there is no direct evidence referred to
in the pleadings to establish who was the source of the impugned directive. There is
only a multiple chain of hearsay which is contradicted by information contained in Ms.
Gibson’s email.
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[30] But this examination may simply be too technical and detailed. The real
frailty of the grievance is much simpler. Even if some direction by an employer
representative was given to the grievor to return to work, I am unable to see what
possible contravention of the collective agreement exists. Once again, the grievor
asserts the anguish and emotional toll that this direction had on him and on his family,
without any pleaded objective facts or evidence to support such a conclusion.
[31] I am satisfied that this grievance fails to disclose a prima facie case of any
collective agreement violation or consequent required remedial response. This
grievance is dismissed.
[32] The next grievance, Board File 2015-2498 was filed over six months later
on October 21, 2015. Once again, it is impossible to discern from the grievance what
event(s) led to its filing. Paragraphs 20-49 of the union’s particulars deal with events
that took place between June 11 and October 21, 2015, when the grievance was filed:
20. On June 11, 2015, the Grievor attended another GSB hearing in his
capacity as a union steward (grievance of Rita Bartinlioglu). Counsel
for OPSEU was Sheila Riddell, formerly of Ryder Wright Blair &
Holmes LLP.
21. During the hearing day, Ms. Riddell conveyed a comment to the
Grievor, from management, that someone from management said that
“Kharl is supposed to be sick, so what is he doing here?”, or words to
that effect.
22. The Grievor found this comment insulting as it implied that he was
being dishonest about being sick. The Grievor also found it to be an
improper disclosure of his personal and private health information.
This information should not have been disclosed.
23. The Grievor also takes the position that this action constitutes an
example of the pattern of harassment he has been subjected to at the
hands of management.
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24. In and around June, 2015 [in all likelihood, the listed year is in error
and should read 2014], the Grievor suffered a workplace injury and
missed time from work. The Grievor could have worked, and did
attend at work, however, the employer asserted they were unable to
accommodate him and sent him home and insisted on applying STSP
credits to the day in question. The Grievor sent emails to management
noting he could have worked with accommodation and seeking full pay
rather than STSP since it was the employer’s refusal to accommodate
him that kept him out of work.
25. The Grievor takes the position that the employer’s failure to
accommodate him breached the collective agreement and Human
Right Code, and also constitutes a part of the same pattern of
harassment that management has subjected to him and which
underlies all of the grievances particularized herein.
26. For quite some time, the Grievor’s direct supervisor Vladimir Yarosh
has subjected the Grievor to bullying, harassment, and
micromanagement, all of which has poisoned the Grievor’s workplace.
27. Mr. Yarosh frequently seems to surveil the Grievor and closely monitor
his comings and goings, measuring the minutes by which the Grievor
arrives at and leaves work. Mr. Yarosh frequently emails the Grievor
regarding the Grievor’s comings and goings. These emails make clear
that Mr. Yarosh is watching the Grievor, and that he must be doing so
on a near-constant basis.
28. The Grievor has made management aware of Mr. Yarosh’s behaviours
on numerous occasions, and has also filed a WDHP complaint
regarding Mr. Yarosh and brought many of these behaviours to the
attention of the WDHP Advisor assigned to the file, Alison Hamer.
29. The Grievor also takes the position that management, including Mr.
Yarosh, discriminate and harass the Grievor because of his active
involvement with the Local Union.
30. On or around October 15, 2015, the Grievor arrived at work late. He
called Mr. Yarosh and advised he would be late due to traffic. There
were no discussions during that call or during the day with respect to
how he would make the time up, which he intended on doing.
31. The facility where the Grievor works has had an informal practice of
late arrivals being made up subsequently, or being deducted from
vacation or wages.
32. At 3:30pm that day, which is the Grievor’s usual end-of-shift, the
Grievor packed up and made his way to his car.
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33. The Grievor was approaching his car in the parking lot when Mr.
Yarosh ran up to the Grievor and ordered him back to work
immediately.
34. The Grievor advised that his workday was over and they could discuss
how and when he would make up the time another time, as his day
was over and he was heading home.
35. Mr. Yarosh angrily demanded that the Grievor return to work.
36. The Grievor stood pat that his work day had concluded and that they
could discuss at another time how the time would be made up.
37. The Grievor left and went home.
38. The following morning, October 16, 2015, the Grievor was engaged in
conversation with his coworkers and advised them of Mr. Yarosh’s
behaviours the previous day.
39. Mr. Yarosh’s manager, Gary Marchand approached the group and
entered into the conversation.
40. The Grievor shared with Mr. Marchand what had happened.
41. Shortly thereafter, Mr. Yarosh joined the conversation as well.
42. The conversation was not disorderly and the Grievor was focused on
how such situations, viz., making up time, should be handled in the
future.
43. At the end of the conversation, Mr. Marchand advised that, going
forward, if someone was late, they would inform their manager and the
employee and manager would determine how the time should be
made up.
44. Everyone seemed to accept this and Mr. Marchand accordingly
ushered everyone back to work.
45. Several days later, at end of day October 19, 2015, Mr. Yarosh
emailed the Grievor accusing the Grievor of creating a “disruption” in
the workplace that was “inappropriate and disruptive to the entire
warehouse”.
46. Mr. Marchand was copied on this email.
47. Further emails between the Grievor and Mr. Yarosh followed.
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48. Around this time, the Grievor approached Mr. Marchand regarding
these emails with his union representative Joseph DiFederico. Mr.
Marchand seemed shocked by Mr. Yarosh’s emails and advised he
was “going to have a talk with Vladimir and straighten things out”, or
words to that effect.
49. The Grievor filed a grievance on October 21, 2015 (now bearing
OPSEU# 2015-0545-0013) in relation to the ongoing of bullying and
harassment that management and Mr. Yarosh had subjected him to,
and in particular in relation to the allegations Mr. Yarosh made against
the Grievor in his email of October 19, 2015.
[33] Paragraphs 20-23 detail an incident which took place on June 11, 2015. It
bears some similarity to an earlier event canvassed above regarding statements
attributed to the employer during the course of a mediation at this Board which the
grievor attended in his capacity as a union steward. In this case the person alleged to
have made the statement is not identified and the comment was not directed to the
grievor (even indirectly). Neither, as in the previous case, is it alleged that any direction
was issued to the grievor. Rather, it seems the grievor is complaining about something
that may have been said about him in a conversation in which he did not participate.
And neither do I find it unsettling or even surprising that such a comment might be made
where the grievor attended at a GSB mediation on a day when he had claimed to be
sick (if that is what we are to glean from the pleadings).
[34] Once again, and regardless of the treatment of the employer’s privilege
argument, there is simply no basis for any grievance on the facts as pleaded.
Furthermore, I note, as well, that this may be the clearest example of “orphan”
particulars produced by the combination of the grievances and pleadings. The event
took place in June 2015. The next grievance following was filed in October. There is
absolutely nothing in the grievance, including any temporal proximity, to suggest any
link between that (or any other) grievance and these particulars.
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[35] To the extent this portion of the pleadings can be construed as part of any
allegation of an employer breach of the collective agreement, it fails to make out a prima
facie case and will not be considered further.
[36] Paragraphs 24 and 25 appear possibly to be taken up as part of a later
grievance. I will defer their consideration for now.
[37] Paragraphs 26-49 appear to be the heart of the particulars regarding
events resulting in the grievance filed on October 21, 2015. As will be clear it is not
necessary for me to deal with these assertions in intense detail. I begin by noting that
paragraphs 26-29 are devoid of the specificity normally associated with particulars and
that this defect is not cured by the documents filed.
[38] Before addressing the balance of these portions of the particulars to the
extent necessary for the current purposes, I note that about two weeks after filing this
grievance the grievor was issued a “Letter of Counsel” dated November 5, 2015. That
letter prompted the filing of a further grievance dated November 16, 2015 (GSB File
2015-2551). The grievance itself does not provide any information as to what event(s)
gave rise to its filing (it makes no reference whatsoever to the letter of counsel).
However, paragraphs 50-53 of the particulars make it clear that the grievance
challenges the propriety of the letter of counsel:
50. On November 5, 2015, the Grievor was issued a letter of counsel.
The letter contained a number of gross inaccuracies that asserted
the Grievor had behaved inappropriately and with hostility towards
Mr. Yarosh. It is not clear that the employer conducted any
investigations into the allegations set out in the letter, and seems as
though Mr. Yarosh’s assertions and accusations were accepted.
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51. Further, the letter chastised the Grievor for several emails in which
he asserted his rights under statute and the collective agreement,
and in which he complained that he was being bullied and harassed
by Mr. Yarosh.
52. The Grievor takes the position that this letter of counsel constitutes
further evidence of the harassment and discrimination that
management has been subjecting him to.
53. The Grievor filed a grievance dated November 16, 2015, now bearing
OPSEU# 2015-0545-0014
[39] In respect of this grievance, the employer asserts that as the letter is not
disciplinary in nature, this Board ought not to inquire into it.
These latter two grievances need to be considered together.
[40] Indeed, perhaps nothing else in the materials more clearly delineates the
real “dispute” between the parties, both in respect of these two grievances and in the
“big picture”. There is a very substantial overlap, if not virtual identity, in the events
which give rise to these two grievances. And each of the parties point to these events
for very different reasons. The grievor claims that these provide examples of
harassment or improperly motivated (i.e. contrary to any one of a number of possible
statutory and collective agreement provisions) employer conduct, part of the “big
picture” of the harassment, discrimination and bullying that typifies the employer’s
treatment of him. The employer, pointing to the very same events in its letter of counsel,
which is the subject of the second of these grievances, asserts that these are examples
of poor conduct by the grievor which warrant some minimal non-disciplinary intervention
on its part to advise the grievor of its legitimate expectations.
[41] To be clear, the union did not dispute the employer’s position that the
letter is not disciplinary in nature. Thus, in the normal course, such a letter would not be
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open to challenge through a grievance (and certainly not on a “just cause” standard).
However, if the union can establish that the employer acted with improper motives or
otherwise engaged in conduct amounting to harassment, it may well be that some
remedial response would be warranted. Again, it is important that the nature of this
contest is clear. The union bears the onus in respect of both grievances. The ultimate
question may be: did the grievor’s conduct merit the attention it received from the
employer or did the employer’s response amount to harassment or was it otherwise
tainted by some improper motive. The employer need not establish that its response
met any standard of just cause and the union cannot succeed unless I am persuaded
that there was some improper conduct or nefarious motive on the employer’s part in the
events related to these two grievances. However, notwithstanding the able submissions
of employer counsel, I am not prepared to dismiss these grievances without a hearing.
Thus, the employer’s motion in respect of these two grievances is dismissed.
[42] The next grievance, GSB File #2015-2757 was filed on November 26,
2015 (again the grievance form itself affords no indication of the specific event(s) giving
rise to its filing). The particulars relating to this grievance are as follows:
54. On a number of occasions in November, 2015, Mr. Yarosh appeared
to be surveilling and micromanaging the Grievor, emailing him when
he was minutes late or approaching the Grievor the moment he
arrived at the warehouse demanding to set a day and time when the
Grievor would make the time up.
55. The Grievor felt as though he was under a microscope and that all of
his actions were being monitored by Mr. Yarosh in a way that was
not the case for other employees.
56. The Grievor emailed Mr. Yarosh and Mr. Marchand regarding his
concerns, with Mr. Marchand eventually referring the issues to a
WDHP Advisor.
57. The Grievor filed a grievance regarding the ongoing issues on
November 26, 2015 (now bearing OPSEU# 2015-0545-0015).
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[43] The employer asserted that these particulars provide little more than the
grievor’s subjective feelings and theories and little in the way of any indication of actual
facts supporting these theories. In large measure I agree. The union conceded that
these pleadings are “broad” but also referred to a number of emails that were filed. In
my view, these emails may provide more of a view of the grievor’s combative and
uncooperative manner than any employer improprieties. The grievances as augmented
by the pleadings and the few emails referred to do not establish any case for the
employer to answer. This grievance is dismissed.
[44] The next two grievances (GSB Files 2015-2756 & 2015-2758) were filed
on December 2, 2015. These can be disposed of quickly. While, unlike many of the
other grievances, these two grievance forms do contain some information as to the
relevant events which gave rise to them, there is but a single paragraph of particulars
pertaining to both of these:
58. The Grievor received a letter of discipline on or around November 30,
2015 and filed and two further grievances on December 2, 2015 (now
bearing OPSEU#’s 2015-545-0016 and 0017), on[e] relating to the
ongoing bullying, harassment and discrimination he was suffering,
and the second against the discipline that he been imposed upon
him. The Grievor takes the position the discipline was without just
cause and holds the employer to the strict proof of establishing that it
had just cause to discipline him.
[45] These two grievances were the subject of some confusion. The employer
acknowledges that the grievance challenging the discipline (which appears to be 2015-
2758) is properly filed and must proceed to the merits. However, the employer also
asserts that the other grievance (2015-2756) must be dismissed since, given the lack of
meaningful particulars, it fails to disclose a prima facie case. The union does not dispute
the absence of any specific particulars with respect to this grievance. It is therefore
dismissed.
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[46] The next grievance (GSB File 2015-2756) was filed on January 8, 2016.
Paragraph 59 of the particulars reads as follows:
59. In and around late December, 2014 or early January, 2015, the
Grievor was advised that he had entered Stage 2 of the employer’s
attendance management program. The Grievor filed a grievance
regarding this (dated January 8, 2016, OPSEU# 2016-0545-0001),
as the employer did not properly take into account the reasons for
certain of his absences, as he was away due to a disability for
approximately six days due to his workplace injury, discussed above.
The Grievor also takes the position that they included him in the
program as retaliation for his activities as a union steward and his
efforts to enforce his rights under the collective agreement and
statute. The employer did not, for example, bundle the six days he
missed as a result of his workplace injuries, as discussed above.
[47] Although there is no mention in the grievance of the employer’s
attendance management program, the above paragraph makes clear that it was the
grievor’s inclusion in the program (at Stage 2) which is the subject of the grievance.
And, in that respect, the reference to “as discussed above” in this portion of the
particulars may be a reference to paragraph 24, which, for convenience, I reproduce
again:
24. In and around June, 2015 [in all likelihood, the listed year is in error
and should read 2014], the Grievor suffered a workplace injury and
missed time from work. The Grievor could have worked, and did
attend at work, however, the employer asserted they were unable to
accommodate him and sent him home and insisted on applying
STSP credits to the day in question. The Grievor sent emails to
management noting he could have worked with accommodation and
seeking full pay rather than STSP since it was the employer’s refusal
to accommodate him that kept him out of work.
[48] I say paragraph 24 “may” be related to paragraph 59 because there is
some potential thematic link. However, no further information or submissions clarified
the precise nature of this grievance. It is not clear that the apparently single day referred
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to in paragraph 24 relates to or overlaps with the six days of absence referred to in
paragraph 59. And neither were any of these six days enumerated. In the
circumstances, I am satisfied that the union’s materials fail to disclose any prima facie
case. This grievance is dismissed.
Paragraphs 60 and 61 of the union’s particulars provide as follows:
60. In mid-January, 2015, Mr. Yarosh demanded that the Grievor work in
an area that was filled with gas fumes.
61. In late January, 2016, and in advance of the first GSB date set for
these matters, the Grievor, consistent with past practice, sought taxi
chits in order for he and his union representative to attend the GSB
hearing. Mr. Yarosh advised that they would have to take the TTC.
This was a break from past practice and a different process was
applied to the Grievor and his union rep. The Grievor takes the
position this constitutes harassment and discrimination.
[49] These appear to be more orphans (particulars unrelated to any specific
grievance). The union described paragraph 60 as “stand alone”. The event referred to
does not appear to be linked temporally or thematically to any of the grievances filed.
Similarly, neither do the events described in paragraph 61 appear linked to any
particular grievance. And in neither case is it clear that any possible collective
agreement violation is made out by the pleadings. Like the “taxi tip” grievance, which I
have earlier dismissed, the facts here pleaded fail to disclose any violation of the
collective agreement, nor even any irregularity or discriminatory application of the
employer’s travel policy.
[50] The remaining grievances can be dealt with more easily. It is not
necessary for me to set out the particulars.
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[51] Between March 3, 2016 and June 8, 2016 nine further grievances were
filed. Three of these relate to the issue the parties have described as bargaining unit
integrity. As noted, the parties have agreed to remove these from consideration in the
instant proceedings. An additional two of the nine remaining grievances challenge the
imposition of discipline on March 21, 2016 (a letter of reprimand with the loss of one
day’s pay through the denial of use of vacation credits) and on June 7, 2016 (a three-
day suspension). There is no dispute that these two grievances are properly before me;
they are not included in the employer’s motion.
[52] Thus, there remain four grievances the employer seeks to have dismissed
without any further hearing.
[53] First, I note that one of these (GSB File 2016-0355), challenges a letter of
counsel issued to the grievor on April 20, 2016. The subject matter of the letter pertains
to the manner in which arrangements are to be made for the grievor to attend to union
business. On its face, this letter is non-disciplinary and is therefore, presumptively, not
subject to grievance, and certainly not to one alleging the absence of just cause. It is
clear, however, that the manner in which arrangements are made to facilitate union
business is a matter of some dispute between the parties (indeed, it enters into at least
some of the discipline imposed between March and June). And, as in an earlier pair of
grievances, both parties point to the same events as ones which (according to the
union) are examples of the employer’s harassment and improper motive and (according
to the employer) are circumstances where the grievor’s conduct warrants the measured
response of a non-disciplinary intervention. (These are, of course, views which are
difficult to reconcile.)
[54] This pattern persists in respect of the other remaining grievances (Board
Files 2016-0141; 2016-0354; and 2016-0801). These all include the familiar generic
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assertions of employer impropriety. However, when these grievances are considered in
the context of the particulars and documents that are said to support them, it is clear,
once again, that there is a significant overlap of the events the parties rely upon to
establish (in the union’s case) that the employer harassed the grievor and harboured
improper motives or (in the employer’s case) that the grievor’s conduct warranted the
discipline that was imposed and which led to the grievances that all agree are properly
before me.
[55] In the circumstances and even were I prepared to grant the employer’s
motion in respect of the last four grievances it seeks to have dismissed, it appears to
me that there would be little efficiency to be gained as there would likely be little
difference in respect of the evidence that needs to be adduced in respect of the
discipline grievances. Notwithstanding the force of the employer’s arguments to support
its motions, I am not persuaded that it would be appropriate to dismiss the remaining
grievances at this time.
[56] I have, to the extent necessary, reviewed the individual grievances and
determined that six of the twelve identified by the employer ought to be dismissed
without a further hearing. Before formally dismissing those grievances, however, I will
return briefly to the “big picture”, in view of the union’s submissions that it is important to
do so and that apparently “minor” grievances may take on greater significance when
they are viewed as part of the larger context of harassment and discrimination which
emerges when one considers the total context. I must observe, however, upon
examining the materials before me, there is a significant disparity between the picture I
see and the one the union claims emerges.
[57] First, I see (excluding the disciplinary grievances which the employer
agrees must be litigated) a dozen grievances filed over a period of less than 14 months.
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With very few exceptions the wording of each grievance is virtually if not entirely
identical. I have already set out the text of the very first grievance in full earlier in this
award. It may be useful to review the text of one of the later grievances in this regard
(GSB File No. 2015-2551, dated November 16, 2015). The wording of this grievance is
typical of the later grievances, which become more economical but maintain their
boilerplate quality and lack of specificity:
I hereby grieve: Management has discriminated and harassed me for my
union activity. This contrary to Article 3.2, but not exclusive to article 2
(Management Rights), 3 (Harassment and Discrimination), and Article
3.1 (No Discrimination) of the Collective Agreement and the Ontario
Human Rights Code (OHRC), that 2. Management has intimidated and is
attempting to discipline me without just cause, contrary to Article 21
(Discipline and Dismissal), and Article 3.3 (No Discrimination) of the
collective agreement, that 3. Management has failed to provide me with a
safe working environment free from harassment including bullying and
differential treatment contrary to Article 3.3 (No Discrimination) and
Article 9.1 (Health and Safety) of the Collective Agreement.
The Union reserves the right to rely upon any other applicable article.
Settlement Desired I asked that Management: ceases and desists in the
intimidation, harassment and bullying against me; 2. Ceases and desists
at the attempt at discipline against me; 3. Returns me to a safe working
environment; 4. That Management makes me whole and includes
redress the form of monetary or tangible compensation for the suffering,
mental stress and physical damage done to me; 5. That Management
provides a written apology for the damage done to me. And any other
compensation deemed to be fair at the Grievance Settlement Board.
[58] These grievances are so generic in nature as to be of little practical value.
Union counsel is certainly to be congratulated on his effort to weave together the
particulars that might have given life to the empty vessels that were the grievances. But
even that effort could not escape all of the frailties of the grievances. It was not unusual
during the hearing in this matter for there to be a communal difficulty accompanying
efforts to marry particulars with grievances or vice versa. And there were orphans:
particulars which found no grievances and grievances without particulars. The “big
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picture” associated with the filing of all of these grievances and their dramatic, but
seemingly (in at least the six grievances I have identified for dismissal) unsubstantiated,
allegations is one of a futile search for facts to vindicate claims.
[59] Further, I have set out some of the grievor’s missives to the employer. A
full review of that correspondence demonstrates that, whatever the ultimate disposition
of the remaining grievances may be, the “big picture” is not one of a frightened,
intimidated, silenced victim of harassment or improperly motivated employer conduct.
The facts and documents, as pleaded, perhaps display a poor relationship between the
grievor and at least one of his managers. And while that relationship is obviously a
difficult one, the events referred to (again, apart from the exceptional instances where
any actual discipline was imposed) frequently evince little more than the daily thrust and
parry one might have expected in the circumstances. And neither is there any
consistency as to who is doing the thrusting rather than the parrying at any particular
moment. But the grievor appears to be of the view that, even where there is otherwise
no collective agreement violation, the slightest disagreement with his employer or any
instance where the employer’s solicitousness (a commodity which, on the union’s facts,
is not in scarce supply) is insufficient to his taste, is a fresh invitation to file another
generic grievance protesting the alleged violation of every conceivable labour related
statute. This is neither a viable labour relations strategy nor an efficient use of this
Board’s limited resources. No matter how high the pile of such grievances becomes, a
mountain they do not make.
[60] In view of the foregoing, I am satisfied that the six grievances I have
identified, whether considered individually or as part of a larger constellation, make no
significant contribution to the union’s overall case. Our inquiry will therefore be limited to
a shorter temporal window (roughly 8 months from October 2015 to June 2016 rather
than the full 14-month period over which all of the grievances were filed). An
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examination of the events during that time period will afford the union a full and fair
opportunity to attempt to make its case and vindicate its theory.
[61] Having regard to all of the foregoing, the following grievances are hereby
dismissed:
• GSB Files 2015-0637; 2015-0820; 2015-1000; 2015-2757; 2015-
2756; and 2015-2945.
[62] The remaining grievances (as well as the three discipline grievances that
were not part of the employer’s motion) will continue to a hearing on the merits, as
presently scheduled.
Dated at Toronto, Ontario this 5th day of January 2017.
Bram Herlich, Vice Chair