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HomeMy WebLinkAboutP-2004-2738.Nancy Marshall.05-11-08 Decision CORRECTED Public Service Commission des Nj Grievance Board griefs de la fonction publique Bureau 600 ~ Suite 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 P-2004-2738 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Nancy Marshall Grievor - and - The Crown In RIght of Ontano (Mimstry of Health and Long-Term Care) Employer BEFORE Kathleen G O'NeIl Vice-Chair FOR THE GRIEVOR Nancy Marshall Eugene Marshall FOR THE EMPLOYER Rosalyn PnncIpe Counsel Mimstry of Government ServIces HEARING September 20 2005 2 DeCISIon ThIS deCISIOn deals WIth the employer s prehmman motIOn that the gnevance filed b, Nanc, Marshall should be dIsmIssed WIthout a heanng on the ments, as untImeh moot and/or outsIde the JunsdIctIOn of the Pubhc ServIce Gnevance Board (referred to below as the Board or the PSGB) both substantIveh and as to remed, Backzround The gnevor wrote a letter of complamt to her Depun Mimster on June 24 2003 and filed thIS gnevance on Juh 31 2004 allegmg that her manager Irene Medcof, engaged m harassment and created a pOIsoned work envIronment, and that thIS was condoned b, her DIrector MamIe Weber In order to facIhtate the dIscussIOn of the allegatIOns below the, are summanzed here m the order used b, the gnevor m her apphcatIOn to the Board. 1 Workplace harassment and poisoned }j,ork environment It IS alleged that the gnevor s manager subjected her to constant negatIve feedback and vmdIctIve harassment. The speCIfic matters complamed of are as follows A. The manager breached OPS gmdelmes for appropnate use of VOIce mall whIle the gnevor was on vacatIOn m Juh 2001 b, gIvmg her vOIce-maIl code to a subordmate whom the gnevor was m the process of documentmg B In and around December 2001 the manager IS alleged to have faIled to address problems associated wIth the monthh vanance reports, and together WIth the Financial manager constanth changed theIr mmds about who should produce them, and to have faIled to gIve the gnevor adequate support to prepare them. e It IS alleged that her manager s summan of a performance reVIew meetmg dated Januan 11 2002 IS not factualh correct, as the problems for whIch the gnevor was cntIcIzed were the result of structural problems m the orgamzatIOn, mcludmg a reqmrement that she supervIse employees m two dIfferent locatIOns D The manager constanth mterfered and dId not allow the gnevor to do her own Job as manager For example m or around Januan 2002, the gnevor comphed WIth the demotIOn of one of her subordmates at the manager s request, although she dId not agree WIth the demotIOn. E In Februan 2002, the gnevor s manager would not hsten to her as to whose responsibIht, a fire drill was, demonstratmg a lack of knowledge of government pohcIes and procedures, m the gnevor s VIew F The manager s summan of a Ma, 28 2002 performance reVIew meetmg IS not factualh correct as It does not record the gnevor s mput or her statements dIsputmg the manager s verSIOn. The gnevor 3 beheves that the manager s comments are vmdIctIve and overh negatIve and dIsputes the substance of man, of the cntIcIsms contamed m the manager s notes G The gnevor alleges that others have been subJected to her manager s constant harassment, and provIded the report of an mvestIgatIOn mto another employee s complamt of harassment and dIscnmmatIOn as an example The gnevor was one of the people mtervIewed m the mvestIgatIOn of that employee s complamt, and says that when she told the mvestIgatmg manager that she feared repnsals If she was frank, she was told that It was unlikeh she would have to return to Toronto RegIOn as other posItIOns were opemng up The gnevor notes that the complamt of the other employee was dIsmIssed as to raCIal dIscnmmatIOn Issues, but that the mvestIgatIOn report dId not deal wIth the harassment and pOIsoned work envIronment Issues H. The gnevor alleges that her manager could not functIOn m a team envIronment as exemphfied b, the fact that she contmued to mSIst on settmg up a meetmg wIthout provIdmg mformatIOn the gnevor had requested pnor to a meetmg bemg set up I. In Januan 2003 the manager contacted the gnevor to proceed wIth the performance reVIew whIch had not been fimshed m Ma, 2002, because the gnevor went off on a secondment. The allegatIOns set out m paragraph F above pertam to thIS aspect of the complamt as well 2 The gnevor complams that she was forced to return to her home posItIOn after her secondment ended on Juh 16 2004 even though she could not return to 'thIS dysfunctIOnal and unhealth, workplace envIronment for medIcal and health reasons Further It IS alleged that the gnevor never receIved a response to her complamt dated Januan 24 2003 although Ms Weber had been deSIgnated to respond. 3 Her request to be waived mto an AGM 18 posItIOn dated Januan 24 2003 was not responded to Those are the allegatIOns whIch are challenged m the prehmman obJectIOns whIch are dealt WIth m turn below Should the matter be dismissed for delav? The employer mamtams that all the events complamed of took place between 2001 and 2003 too long ago to be the proper basIs of a gnevance filed m 2004 eounsel for the employer sItuated her request for dIsmIssal wIthm the ambIt of prevIOUS Board decIsIOns on dela, whIch have consIstenth held that the decIsIOn m each case IS a matter for the dIscretIOn of the adJudIcator after consIdenng the reason for the dela, ItS length, the nature of the gnevance whether there IS a reasonable explanatIOn for It, and ItS effect m terms of preJudIce to the other pam It was submItted that some kmd of compellmg eVIdence would be necessan to JUStIf\ a dela, of over one year after the last event complamed of, and over three years after the first. It IS not sufficIent, m the employer s VIew that the gnevor dId nothmg to preserve her nghts whIle she pursued other avenues to resolve her complamts Further counsel asserted that the length of tIme that has elapsed preJudIces the employer m the 4 presentatIOn of Its case partIcularh WIth regard to conversatIOns that ma, or ma, not have taken place m the penod 2001 to 2003 eases cIted b, employer counsel deahng wIth dela, were Clavton and Blais and The Crown in Rizht of Ontario (Ministrv of the Solicitor General and Correctional Services) PSGB #P/6/99 P/12/99 (LeIghton) Camvbell and The Crown in Rizht of Ontario (Ontario Realtv Corvoration) PSGB #P/0032/99 (LeIghton) Dubash and The Croyt,n in Rizht of Ontario (Ministrv of Health) PSGB #P/001O/90 (Willes) Coccia and The Croyt,n in Rizht of Ontario (Ministrv of Communi tv Safetv and Correctional Services) PSGB #2003-3552 (LeIghton) as well as those of the erown Employees Gnevance Settlement Board (GSB) such as, OPSEU (Szabo) and The Crown in Rizht of Ontario (Ontario Realtv Corvoration) GSB # 1811/98 (Herhch) OLBEU (Wicken) and The Crown in Rizht of Ontario (Liquor Control Board of Ontario) GSB #2216/97 (Knopf) In Camvbell, cIted above the Board held that one must first consIder when the mCIdent, or event whIch gave nse to the complamt came to the attentIOn of the gnevor If It IS filed beyond the fourteen days stIpulated m s 34(1) of RegulatIOn 977 under the Public Service Act, the Board must then consIder whether to exerCIse ItS dIscretIOn to extend the tIme hmIt. Where a gnevance claImmg movmg expenses was filed some two and a half years later and the onh reason gIven was fear of repnsal, It was consIdered too late There was also eVIdence of preJudIce to the employer as people who would be needed as wItnesses had left the government. In Blais and Cfavton gnevances claImmg stand-b, pa, were dIsmIssed where the gnevors waited 16 and 18 months respectIveh to gneve because the, beheved the employer was consIdenng theIr requests The Board held that unless there IS a clear agreement between the partIes that no formal gnevance need be filed whIle the employer consIders the claim, gnevors must preserve theIr nghts b, filmg a tImeh gnevance SImIlarh m Coccia, where dIscIphne was not gneved untIl seven months later the gnevance was dIsmIssed for dela, The gnevor had filed an apphcatIOn for JudIcIal reVIew of the employer s actIOns dunng the dIscIplman process, and onh gneved when that avenue was unsuccessful SImIlarh m the GSB s decIsIOns m the Szabo and Wicken gnevances, rehance on legal advIce to pursue another avenue before gnevmg was not consIdered a sufficIent reason for a length, dela, despIte the fact that Wicken was a dIscharge case In Dubash, the gnevor pursued hIS complamt both b, wa, of gnevance before the PSGB and before the Human Rights eOmmISSIOn, and was found to be untImeh b, both tribunals, where the reason for the dela, mcluded makmg sure he had a strong case and fear of mtImIdatIOn from hIS supervIsors 5 What IS the length of dela, m filmg thIS gnevance? The gnevor mamtams that there was no dela, that the gnevance was filed m a tImeh wa, as shown b, the fact that she gneved as soon as she knew she would be returned to her home posItIOn, and at a pomt when she had not receIved a response to her mtemal complamt letter Further It IS Said that there IS an ongomg problem wIth harassment as shown m a report dated September 30 2002 ThIS report deals wIth an mvestIgatIOn mto a harassment complamt b, another employee agamst the same manager and does not deal WIth the mCIdents complamed ofb, the gnevor As well, the gnevor mamtams that the facts should be consIdered ongomg as she has not been gIven a permanent posItIOn m another office She explams the lack of an earher gnevance b, the fact that she was off on vanous secondments To summanze then, the specIfic mCIdents alleged to constItute harassment from the gnevor s manager range from Juh 2001 to Januan 2003 and were not gneved untIl Juh 2004 The mam reasons gIven for the dela, m gnevmg those earher mCIdents are that the gnevor was off on secondment and she thought her concerns were bemg dealt wIth. When she learned that she was gomg to be returned to her ongmal posItIOn despIte her request not to be she filed her gnevance These are the kmds of reasons for dela, that have been consIdered msufficIent m the Board s Junsprudence to extend the fourteen-da, statuton tIme hmIts for a penod as long as the year and a half mvolved here Even though It IS understood that managers ma, be reluctant to gneve penods of the length mvolved here have been consIdered Just too long a tIme gIven the dIfficult, of htIgatmg facts that have occurred man, months earher and the Importance of expedItIOn m deahng WIth workplace problems And although Issues of harassment represent senous workplace Issues, there IS nothmg about the nature of thIS partIcular complamt, or an, dIfficult, m knowmg the facts gIvmg nse to the gnevance that would set It apart from the approach normalh taken b, the Board to delays of thIS magmtude See Jones and The Crown in Rizht of Ontario (Ministrv of Correctional Services) PSGB #P/0009/92 (Willes) (also referred to below as to the mootness Issue) for an example of a gnevance mvolvmg an allegatIOn of harassment whIch was not heard b, the Board because It had not been gneved m a tImeh manner At the heanng, submIssIOns were made on behalf of the gnevor to the effect that problems stIll contmue m the present, and that the, are condoned b, the DIrector However these undetaIled allegatIOns are not part of the gnevance submItted m 2004 whIch IS the matter before the Board, and the subJect of the prehmman obJectIOns bemg consIdered here The gnevor s submIssIOns were to the effect that the dela, m gnevmg the earher mCIdents should be consIdered dIfferenth because she filed her gnevance once she was told that her secondments would be over and she would be retummg to her home posItIOn. In thIS regard, It IS Important to underlme that the last of the speCIfic mCIdents complamed of occurred m Januan 2003 The gnevance refers to no 6 mCIdents between then and Juh 2004 to suggest that the harassment had somehow contmued even though the gnevor was not workmg for the same manager In these CIrcumstances, there IS a clear gap of approxImateh 18 months, whIch IS not erased b, the news that the gnevor was to be returned to her home posItIOn. In her apphcatIOn to the Board, the gnevor hsts the fact that she was forced to return to her home posItIOn as an allegatIOn separate from the earher mCIdents, and It was sImIlarh mcluded m the gnevance letter whIch went to the Deput, Mimster on Juh 31 2004 The tIme lapse between bemg notIfied that she would return to her home posItIOn as Office Manager m the Toronto RegIOn Office and the gnevance IS not too long, that portIOn of the gnevance IS tImeh although It does not make the earher mCIdents tImeh once agam. As the gnevor had not yet returned to her home posItIOn when she filed the gnevance wIth the Depun Mimster employer counsel argued that It mIght have been premature to gneve about the return to her home posItIOn, especIalh smce the manager about whom she had earher complamed had left that workplace m April 2003 However gIven that the date of the gnevor s return to her home posItIOn had passed b, the tIme she filed her apphcatIOn wIth the Board, It would be unduh techmcal to dIsmIss the matter as premature In thIS context, and m response to the employer s submIssIOns about the fact that Ms Medcof was no longer the gnevor s manager when the gnevor was returned to her home posItIOn, It IS Important to underlme that for the purpose of the prehmman motIOn, the Board assumes that the facts alleged b, the gnevor are true and provable and Waits untIl an, eVIdence IS heard to Judge ItS weIght. Thus, the Board assumes, wIthout findmg, that the gnevor ma, be able to prove that there was a health reason whIch meant that she should not have returned to her home posItIOn, and that the employer was m breach of a term or condItIOn of her employment when It returned her nonetheless An, Issues and argument the employer ma, raise as to that eVIdence mcludmg ItS weIght, are left to a later date In the result, It IS m, VIew that the gnevance was filed too late m regards to the mCIdents between 2001 and 2003 The dela, of a year and a half after the latest mCIdent IS too much of a dela, to permIt the matter to go forward as to those Issues On the other hand, the gnevance IS tImeh m regards to the allegatIOn that the gnevor should not have been forced to return to her home posItIOn m the summer of 2004 because of her health. 7 Are the subject matter of the zrievance and the remedies requested yt, ithin the jurisdiction of the Board? Although It IS not stncth necessan gIven the decIsIOn above on dela, m that the employer dId not challenge the Board s JunsdIctIOn to hear the portIOn of the gnevance relatmg to the gnevor s return to work, It IS worth addressmg the JunsdIctIOnalIssues as well, m hght ofthe extent of the submIssIOns made b, the partIes on that Issue Employer counsel submIts that performance reVIews and evaluatIOns are at the heart of the gnevance as dIsclosed clearh b, several of the remedIes requested, such as the removal and shreddmg of all documents related to her manager s notes on her performance as well as a properl, conducted and unbIased performance appraisal and back ment pa, wIth mterest. It was submItted on behalf of the gnevor that she was not seekmg to dIspute the case law that says that evaluatIOns cannot be arbItrated at the Board, but that It was necessan to deal WIth comments contamed m the notes of the appraisal meetmgs that were of a fraudulent nature Further It was submItted that the manager s approach dId not conform to OPS pohcIes on the method of performance appraisals Further It IS Said that the evaluatIOns are examples of harassment, and It IS thIS fact that gIves the Board JunsdIctIOn over the evaluatIOn portIOn OfthIS gnevance For mstance It IS Said that the manager s omISSIOn of a number of the gnevor s dutIes m the performance reVIew shows the biaS of the manager towards the gnevor eoncemmg allegatIOns agamst the DIrector It IS the gnevor s posItIOn that the DIrector would have known what the manager was proposmg m terms of compensatIOn, as she does not act m IsolatIOn. Replymg to the employer s submIssIOn that there are no partIculars of an, specIfic actIOns alleged agamst the dIrector the gnevor refers to what she consIdered the ven problematIc dual reportmg SItuatIOn under whIch Ms Marshall, as the Office Manager managed the admmIstratIve support staff, as dId the umt managers, who respond to dIrectIOn from the DIrector In Tvrell et. al. and The Crown in Rizht of Ontario (Ministrv of Communi tv Safi;tv and Correctional Services) PSGB #P/2003-2687 (earter) the Board recent!, once agam made clear that gnevances relatmg to evaluatIOn of, or pa, for performance are outsIde the JunsdIctIOn ofthe Board because ofthe Board s mandate set out m Ontano RegulatIOn 977 R.R.O 1990 as amended b, Ontano RegulatIOn 59/03 whIch mcludes SectIOn 31 (4) as follows No gnevance shall mclude a complamt m respect of the followmg matters 1 A complamt that a posItIOn should be classIfied, 2 A complamt that a posItIOn IS m the wrong claSSIficatIOn. 3 A complamt relatmg to a release from employment under subsectIOn 22 (4 1) of the Act, 8 4 A complamt regardmg the method of evaluatmg an employee s performance 5 A complamt regardmg the evaluatIOn of an employee s performance 6 A complamt regardmg the compensatIOn provIded or demed to an employee as a result of an evaluatIOn of hIS or her performance Because of paragraphs 4 5 and 6 above all the portIOns of thIS gnevance that have to do wIth evaluatIOn of the gnevor s performance or pa, flowmg from that evaluatIOn, are outSIde the JunsdIctIOn of the Board. The Board was referred to no authont, suggestmg that the fact that the gnevor beheves her evaluatIOns from Ms Medcofto be so unfair as to constItute harassment could confer JunsdIctIOn on the Board m the face of such speCIfic statuton language In the result, the portIOns of the gnevance relatmg to Ms Marshall s dIsagreement WIth her performance reVIews of Januan 11 2002 and Ma, 28 2002, as well as the Januan 9 2003 Performance Development Plan and Appraisal form are dIsmIssed as outSIde the JunsdIctIOn of the Board. SImIlarh the portIOn of the complamt whIch deals WIth the manager s attempts to schedule an appraisal meetmg m Januan 2003 pnor to forwardmg mformatIOn requested b, the gnevor relates to the method of evaluatIOn, and IS also therefore outSIde the JunsdIctIOn of the Board. The remedIes requested such as the removal and shreddmg of all documents/correspondence related to the manager s notes on her performance and a properl, conducted and unbIased performance appraisal (Max Plus Ment) and all apphcable back pa, WIth mterest smce the, relate to the performance appraisals, are also outSIde the JunsdIctIOn of the Board. One of the other remedIes requested IS placement m a pOSItIOn at a hIgher claSSIficatIOn than the gnevor s home pOSItIOn. Employer counsel submIts that there IS no JunsdIctIOn to award a hIgher-rated pOSItIOn, as noted m Almeida and The Croyt,n in Rizht of Ontario (Ministrv ofMunicival Affairs) PSGB #P/0016/90 (Willes) The gnevor acknowledged that there was no authont, to grant the hIgher claSSIficatIOn and accordmgh It IS not necessan to address that partIcular remedIal request an, further As to the gnevor s requests for costs, employer counsel referred to Carter and The Crown in Rizht of Ontario (Ministrv of Correctional Services) PSGB #P/0014/92 (Descza) where the Board found that the facts alleged m a promotIOn case were not ones that would take It outSIde the range of cases normalh conSIdered b, the Board where legal and out-of-pocket costs are not awarded. Nothmg was presented on the argument of these motIOns that convmces me that thIS case IS sufficIenth dIfferent to depart from the Board s usual approach as to costs 9 Are the issues raised bv the zrievance moot? Employer counsel argues that the Issues are moot because the manager complamed ofleft the area where the gnevor s home posItIOn IS located m Apnl 2003 As well, the gnevor was not left m the sItuatIOn of bemg managed b, the person whom she alleged harassed her as she was gIven a senes of short-term assIgnments pnor to August 2004 Smce there IS no reference m the document to an, harassment b, the new manager or an, partIculars as to the condonatIOn of the alleged harassment b, the dIrector I am asked to dIsmIss on the basIs that there IS no longer a hve Issue between the partIes The employer rehed on the decIsIOn m, Jones and The Croyt,n in Rizht of Ontario (Ministrv of Correctional Services) PSGB #P/0009/92 (Willes) m whIch the Board dIsmIssed a case as moot where a dIscIplme letter had alread, been removed from the gnevor s file and the gnevance as to harassment b, a manager who no longer was her supenor was not filed m a tImeh wa, The gnevor says that the matter IS not moot because It tIes mto the contmumg condonatIOn of the harassment b, MamIe Weber the DIrector and the gnevor s assertIOn that the same condItIOns are present m Toronto RegIOn under the new manager as before An, Issues related to the reportmg relatIOnshIp between Ms Medcof and the gnevor would mdeed appear to be moot, as the gnevor was not m that reportmg relatIOnshIp when she was returned to her home posItIOn. As to current problems m the Toronto office these are not part of the gnevance before the Board, and therefore there IS nothmg to evaluate m terms of mootness There remams the allegatIOn that the gnevor was unable to return to her home posItIOn for health reasons, at a tIme when Ms Medcof would no longer be managmg her Although there IS not much detaIl m the gnevance about thIS portIOn of the complamt, It does not appear to be moot. In the result, the gnevance IS dIsmIssed for the reasons stated above wIth the exceptIOn of the portIOn of the gnevance that alleges that the gnevor should not have been returned to her home posItIOn m August 2004 for medIcal and health reasons, whIch I find to have been filed m a tImeh manner to be wIthm the JunsdIctIOn of the Board, and to be stIll a hve Issue between the partIes The matter wIll be reconvened to deal WIth thIS Issue on a date to be set b, the RegIstrar Dated at Toronto thIS 8th da, of November 2005