HomeMy WebLinkAboutTarek 10-09-05IN THE MATTER OF AN ARBITRATION
SEP 13 2010
UNIVERSITY HEALTH NETWORK
The `Employer'
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 571
The `Union'
GRIEVANCE OF MR. MORRIS TAREK- Allegations of Discrimination and harassment.
Alleged violation of the Human Rights Code R.S.O. 1990, [as amended] "The Code"
Heard in Toronto, August 5, 2010
APPEARANCES
FOR THE EMPLOYER
Andrew Zinman, Counsel -et al.
FOR THE UNION
Tim Mulhall, Staff Representative, O.P.S.E.U. et.al.
I am appointed sole mediator/arbitrator under Section 50 of the Labour Relations Act,
R.S.O. 1995 [as amended] "the Act" to hear and determine a grievance that has arisen
between the Union and Employer and which has failed to be resolved through the
grievance procedure or mediation.
FACTS
The grievor, Mr. Moms Tarek, has been employed at University Health Network `UHN'
and its' predecessors for approximately twenty-five (25) years. At all relevant times, he
was employed in the laboratory performing various duties and responsibilities throughout
this period.
The grievor is also very active in his union. He has held a number of positions, the most
recent one being that of Steward.
I commence my award by first stating that I am extremely troubled with the egregious
conduct that two members of management have engaged in, in this matter. The Employer,
to their credit, acknowledged this misbehaviour occurred and offered its regrets to the
Grievor thus avoiding a prolonged and very difficult hearing. I am thankful for that, not
the least because it avoided a public rendition of what the Grievor earlier endured.
In 2006 the Grievor's son suddenly died. The Grievor, required time off from work to
mourn this loss, a decision that anyone with a sense of compassion would both
understand and encourage. However, some six months later, the Grievor was called in to
his Manager's office and asked to provide a note explaining his absence at the time of his
son's death, because it exceeded two days. The Grievor, needless to say, was very upset
about the request and the concomitant lack of sensitivity it demonstrated.
What the evidence revealed during the mediation was a subsequent and systematic
pattern of harassment directed at the grievor by two members of management. I heard of
examples where the grievor was `hauled in' to a supervisor's office for allegedly abusing
his break time when it was clear that he was committing no such offence.
When the grievor had a brief and, by all accounts, insignificant dispute with another co-
worker, another member of management required that the two attend a mediation session.
This seemed an over -reaction to the situation according to the Union. The Union also
brought forth an allegation at this point that and then to compound the problem, the
Grievor was subsequently denied funding for educational courses because the mediation
session had "devoured the monies" that were budgeted for him.
The statements also revealed that at one point his Manager told the him "he had a chip
on his shoulder owing to his son's death." I see no reason why anyone would resort to
this type of conclusion after reviewing the statements from that period and prior to same.
The Union stated that the statement reflected the cruelty the Grievor suffered during this
period and asked me to view the callous and cruel comment as a clear breach of the
Grievor's rights under the Code. The Grievor informed me in an emotional exchange that
he continues to struggle with the loss of his son.
Finally, in 2008, the Grievor was again brought to an office by management for allegedly
leaving work without permission to attend to Union business. The Grievor had earlier
secured permission to absent himself from his duties from another Manager. I am
informed that the Manager who initially sought to discipline the Grievor was extremely
reluctant to let the matter rest and accept the fact that the Grievor was absent with leave.
The matter was not settled until this Manager was overruled by his own Manager
I could go on at length citing other examples, particularly with respect to certain
Managers interfering with the Grievor's union activities; however, I believe the evidence
described above establishes a picture of what the Grievor's allegations amount to.
The Employer does not dispute the allegation that two of its Managers engaged in
unprofessional, unwarranted and insensitive behaviour that clearly ran counter to the
legislated rights the Grievor possesses under the Code and under the collective agreement.
They are truly sorry for what the Grievor has had to endure. They have demonstrated this
remorse not only by accepting responsibility but also by removing the two key
protagonists' from their employment at the Hospital_.
REMEDY REQUESTED
The Grievor and his Union take the position that the Employer should be made pay
substantial punitive and general damages for violating the Human Rights Code. The
Grievor raised an amount of over one hundred and fifty thousand dollars as being both
compensatory and an aid to prevention in the future.
The Employer stated that the amount sought by the Grievor was far too high and did not
reflect what had occurred in the workplace. Counsel stated that he acknowledged that
there had been movement upwards in matters of damages awarded under the Code both
by the Commission's procedures and by labour arbitrators, this case was sufficiently
distinguishable to make an Award of the amount requested as being totally unfair. Mr.
Zimman stated that the purpose of the Code's penalty provisions should be instructive and
preventative and should be designed to put the parties back to a position they would have
been in had the violations not occurred, he said the facts of this case indicate that the
Employer has done everything in its power to assure this has occurred.
DECISION
The question before me is clearly one of remedy. The Union, on behalf of the Grievor,
seeks general and punitive damages under the appropriate provisions of the Code. It is
argued that I have the jurisdiction as an arbitrator appointed under Section 50 of the Act
to fashion my own remedy, and, furthermore, under Section 48 (12) 0) of the Act, to
interpret and apply certain statutes such as the Code.
I agree with these submissions. I now tum, therefore, to the issue of the quantum of
damages to be awarded.
I have reviewed the jurisprudence that has emerged on this topic over these past few
years. I note that arbitrators have tended to escalate the amount of damages if the
Employer denies responsibility and is subsequently found to have engaged in the alleged
misconduct.
In making my determination I have reviewed the following authorities:
1) `G.T.A.A. v P.S.A. Canada, Local 0004 (C.B. Grievance)[20101C.L.A.D. No. 127'
Shime Award
2) `St. Catharines General Hospital v O.N.A.[1998]O.L.A.A. No. 257'—Chaney Award
3) `Hamilton Health Sciences v O.N.A. [2009] O.L.A.A. No. 493'— Harris Award
4) `North Bay General Hospital v O.P.S.E.U., 2006 Can LIF 53942'— Randall Award
5) `Tennco Canada Inc. (c.o.b. as Walker Exhausts) v USWA Local 2894 (La Grievance)
2006] O.L.A.A. No. 688'— Samuels Award.
In addition, I have reviewed other authorities but believe that the above five represent the
various approaches that arbitrators have fairly recently taken in determining the issue of
damages.
These awards provide me with a variety of remedies ranging from Tennco, where the
arbitrator declined to award damages, to North Bay, where minimal damages resulted to
the remaining three authorities, where significant dames were provided to the grievors. I
suggest that the range of awards rest on three criteria;
1) The severity of the misconduct of the Employer;
2) The Employer's admission of responsibility;
3) Whether or not the Grievor was subject to discipline at the time.
I am left with somewhat of a hybrid set of facts in this matter. On one hand, there is no
doubt that the behaviour of certain members of management was egregious, unwarranted,
malicious, and wholly inappropriate.
On the other hand, the Employer voluntarily accepted responsibility for the behaviour of
its Managers then sought to make amends to the Grievor. It took a further and unusual
step, of ensuring that this conduct would cease by removing those seen as responsible for
this matter from the Hospital.
In one sense, no amount of damages can make up for what the Grievor has endured. It
would have been difficult enough carrying on at work after the sudden loss of a child.
Even if the request for proof of the necessity for the absence came several months after
the loss, it matters not; this type of request is wholly unacceptable at any time. It is
difficult to imagine how the Grievor was able to take instruction from these Managers
after this comment was made.
That said there must be an award here that goes beyond the principles and amounts set
out in North Bay. The Grievor suffered unnecessarily. To paraphrase arbitrator Chamey
in St. Catharines General Hospital, the Hospital's Managers harassed the Grievor,
discriminated against him and made his time at work extremely difficult.
Therefore, and after much thought, I am ordering the Employer to pay forthwith to the
Grievor the amount of $12,500.00 in general damages said amount is to be paid on or
before two weeks have passed from the date of this Award and I so order. There is to be
no income tax or other governmental statutory deductions taken from the amount
awarded and I so order.
I wish to indicate that had it not been for the Employer's immediate contrition and the
steps it took to ensure the behaviour would never be repeated: the amount would have
been significantly higher. This response mitigated a terrible standard of behaviour by
certain members of its management group. I believe the amount is consistent with
comparable jurisprudence and serves as a deterrent to other Employers and Managers
who may feel inclined to behave in the same fashion.
I have purposely omitted the names of the Managers involved in these matters, as nothing
would be gained by identifying them. They no longer work for the Employer. Therefore,
they have been sufficiently dealt with and adequately punished and I so find.
Finally, I further order that the following letter of apology be issued to the Cnievor by the
University Health Network forthwith:
September 2010
Mr. Morns Tarek
Dear Mr. Tarek.
Re: Your Harassment Grievance
The University Health Network wishes to offer its sincerest apologies to you
and your family for the treatment you have had to endure these past four years as a result
of the unprofessional and insensitive actions of certain members of management towards
you.
The behaviour of these individuals was completely unwarranted. We recognize
that it has been hurtful to you particularly what occurred following the sudden loss of
your son.
As you may be aware, we have taken steps to ensure that this conduct will not
only cease but will not be repeated in the future. We hope that you
view our response to the actions of certain Managers as being designed to assist you to
move forward in your working relationship with members of management who are now
responsible for your supervision. We also ask that you accept our promise to you that
such behaviour that you endured will never be repeated. We also ask that you view our
responses in this matter in a positive light and as a sincere attempt to rectify the
Damage that was done.
Once again, we trust that you will accept our apology in the spirit that it is given
and see it as a step towards rebuilding our relationship with you.
Sincerely,
On Behalf of the University Health Network
I would also order that this letter be placed in the Grievor's employment file and to
remain there in perpetuity.
I am hopeful that this will represent a permanent end to the conduct that brought about
this grievance. However, if this does not turn out to be the case or the parties encounter
difficulties in implementing this award, I remain seized of the matter as long as I am able.
In order to assist the parties to move on with a new relationship and to ensure that any
prior agreement entered into by the Hospital and the Managers involved remains
confidential, I will not report this matter to the Ministry or other reporting agencies and I
so declare.
I thank both parties for their able submissions in this matter.
Dated this 5th Day of Septemter 2010, in the Village of Bayfield, Ontario.
ri4x2e
F eilly, Mediator/ orator