HomeMy WebLinkAbout2001-1829.Barillari.06-10-10 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2001-1829, 2002-2390
UNION# 2002-0211-0005, 2002-0211-0044
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Barillari)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Employer
BEFORE Vice-Chair
Nimal V. Dissanayake
FOR THE UNION
Nelson Roland
Barrister and Solicitor
FOR THE EMPLOYER Ferina Murji
Counsel
Ministry of Government Services
HEARING March 13, November 6 & 7, 2003; March 16,
17, 23, April 22, May 4, 13, July 9, 2004;
June, 1, 2, 20, July 14, 15, 20, September 30,
November 18, December 12 & 19, 2005;
July 12, 13 & 18, 2006.
2
Decision
The Board is seized with two grievances file d by Ms. Rosie Barillari (?the grievor?). The
first dated February 7, 2002 states:
I feel that I have been harassed and discriminated against by my employer under
article 3:1 of the Collective Agreement. I was told that I could not give out
Christmas gifts with scripture reading a ttached. The employer around the same time
handed out manuals containing a religious quote and other philosophical and political
quotes. I feel I was unnecessarily harassed as a result of a fellow employee?s
complaint to the manager about my gift w ithout: (1) discussing it with me personally,
(2) not knowing if the complainant(s) wa s from another religion known within the
office or one that did not practice the Christmas holiday in any form.
The settlement desired is set out as follows:
(1) I want to be able to continue to give out similar gifts in the future to parties
that find them acceptable w ithout fear of reprisal.
(2) I want the right to be excluded from any future wo rkshops or training that
includes a philosophy or creed that is offensive to me and emotionally
disturbing to me.
(3) I want the poisoned work place atmosphere to be corrected.
The second grievance is dated December 13, 2002 and reads:
I have been denied my right s under Article 2 and 3 of the Collective Agreement and
any other applicable article by my manager?s refusal to remove any and all letters of
counsel, caution and any other ma terial that is negative&/or derogatory in nature on
any file held by the Ministry of Communit y, Family and Children?s Services. This
has been a constant barrage that has affected my health and attendance.
The settlement desired is set out as follows:
That the above material be removed i mmediately and that there be no further
reprisals, reprimands or harassment. That I be allowed to perform my duties without
the above impediments. That I no longer be directed to supervise my peers or police
their actions as part of performance management.
3
The evidence and submissions on the merits of the two foregoing grievances were
received over 22 hearing days. The grievor?s religious belie fs formed a central theme throughout
the proceeding. The grievor became a permanen t full-time employee of the crown effective
December 1, 1980. She has held the same position w ith the Ministry of Community and Social
Services since, although her title changed several times. At the time of the grievances, her title
was Income Support Specialist (ISS). She worked at the St. Cath arines local office, which was
one of several local offices under the jurisdiction of the Regional Office located in Hamilton. It
suffices to note that the role of the office wa s to provide support and various benefits to
individuals and families under the Ontario Disability Support Program. In that position, she
reported to Income Support Manager (ISM), Ms. Rebecca DesRoches. Below the level of
Income Support Specialist (ISS) were a group of Client Service Representatives (CSR). The
CSR?s essentially gathered the necessary informati on on a file and escalated the file to an ISS.
The CSR?s reported to a different ISM, Mr. Gary Norris.
The grievor testified that she was born in Cana da to immigrant Italian parents. She grew
up in a multicultural neighbourhood in Niagara Falls, attended a private Catholic girls school and
practiced Roman Catholicism. Following high school she went on to obtain a BA (Psychology)
from Brock University. In 1975, she became a ?Born again Christian? and in January 1994
started attending a non-denominati onal church. She testified that the non-denominational church
emphasizes ?outreach? with the goal of making every person a disciple of Christ, which she
stated was the mandate given by Christ himself. Sh e testified that she subscribed to that mandate
and that her pastor was an ?evange list?. Initially the Ministry had local offices at Niagara Falls,
St. Catharines and Welland. In November 1999, these three offices were amalgamated and in
July 2000 were relocated in one la rge office in St. Catharines.
4
The grievances before the Board stem fr om the grievor?s action on December 11, 2001 of
distributing pens to her co-worke rs as Christmas gifts. That day, the office had a ?Christmas
luncheon?. The grievor had purch ased approximately 40-45 pens as well as gift tags with
Christmas designs and colours. On one side of the tag were the printed words ?To? and ?From?.
The reverse side was blank. On the reverse side of each tag, she wrote in her own hand, a
quotation of scripture from the ol d and new testaments of the bible, which she had randomly
picked. A sample of these tags was filed as an exhibit. On the reverse side, the following was
written:
I will instruct you and teach you in the way that you shall go. I will guide you with
my eyes.
Psalm 32:8
The grievor testified that she prepared the tags with different scriptures and attached a tag
to each pen. She testified that she carried the pens to work on December 11, 2001 in a bag, went
around the office handing one to each of her co-wor kers she could find. If a co-worker was not
at the workstation, she left a pen on the desk. She testified that she di d that out of goodwill.
Although not certain, she thought that she distribut ed the pens mostly during lunch break. She
stated that she did not force anyone to accept her gi ft, that if someone did not like her ?gesture?,
they could have given the gift back or ?stated so mething?. She testified that she was aware that
three of the colleagues she gave these gifts to we re from ?different religious?. She recalled
specifically telling them that if the gift offended them, they could give it back to her. Of the
three, one (a Muslim) gave the pen to someone else. The second, (a Jehovah?s witness) returned
the pen to the grievor. The thir d (a Buddhist) simply put the pen away in a drawer. The grievor
testified that the three co-workers expressed to her that they we re not offended by her gift ?but
because of their religious beliefs, they wanted to take this line of action?.
5
The grievor testified that the first indi cation of a problem was when Ms. DesRoches
advised her during the luncheon th at someone had made a complain t that she had found the gift
offensive. The grievor asked Ms DesRoches why they did not personally approach her rather
than complain to management. Ms. DesRoches rep lied that may be they did not feel comfortable
approaching the grievor. The grievor testified that she was not given the opportunity to meet
with whoever complained and no facilitator or me diator was provided to clear the situation. She
stated that she had no desire to end up cau sing bad feelings, and did no want someone
misconstruing her gesture. She testified that Ms. DesRoches advised her that in future she could
hand out pens or pencils as gifts, but not with scriptures attached.
The first grievance dated February 7, 2002 relates to that verbal direction. The grievor
testified that she grieved because the direc tion she received was inconsistent with her
observations of what other employees were allowe d. She stated that her colleagues were allowed
to give out Christmas cards with scripture, to display religious symbols and paraphernalia on
their person and at their workstations, and to ex change gifts of a religious nature. She named
three co-workers who had in the past given he r Christmas cards which had the word ?god? or
had religious symbols. She stated that in the past, every year at Christmas she had given out gifts
with religious tags attached. Some retained the tags and read the scripture on it ?as a source of
comfort, wisdom and encouragement, while another co-worker displayed the tag at her
workstation.?
The grievor testified that a co-worker regular ly wore a 1½ inch Christian cross on a chain
around her neck. Another wore an angel pin to work. She also had observed a co-worker who
had a screen-saver with scriptur e or quotations. Others had scr een-savers with serine scenery
such as mountains or meadows. She considered the employer?s tolerance of that conduct to be
6
inconsistent with the direction she received that she should not hand out pens with scripture
attached as gifts.
The grievor testified that she was moved to a workstation which had been previously
occupied by another employee prior to her retirement. Once she moved, the grievor found a
2002 calendar and a 2001-2002 day planner which ha d been left behind by the previous
occupant. The page for February 2002 from the cal endar, and the front cover page of the planner
were filed as exhibits. Above the dates, the ca lendar depicts a painting of a teacup with a floral
design, along with the signature of the artist. Above the painting appear the words ?The fruit of
the spirit is love, joy, peace, patience, kindne ss, goodness, faithfulness, gentleness and self-
control. Against such things there is no law - Galatians 5:22?. On the back of the front cover
page of the personal planner appear the words ?E ach day is a day that god has given us, and each
moment of that day is in his hands? ? Roy Lessin - .
The grievor named another employee, who she testified had a government pass key band
around her neck, and another who wore a wristband. The bands contained the letters ?WWJD?,
which the grievor believed stood for ?what woul d Jesus do?. She referre d to a gift another
employee had given her after she had received th e direction from Ms. De sRoches about handing
out pens. The gift came with an accompanying tag w ith the statement ?I will bless the Lord at all
times. His praise shall continually be in my mouth ? Psalm 34:1?. Th e grievor was concerned
that by accepting the gift, she may be accused of violating Ms. DesRoches? direction. Therefore,
she inquired from Ms. DesRoches whether she coul d accept the gift. Ms. DesRoches advised her
that if she wished she could accept it and could al so display the gift at her workstation provided
the tag with scripture was hidden from view.
7
The union also claimed that the employer had itself engaged in religious activity which
was contrary to the direction given to the grievor. Filed as an exhibit was a Ministry issued
manual titled ?ODSP Competency Re ference?. It was developed by the South-West Region as a
reference and training tool on applying skill an d knowledge. On the back of each of 42 pages
various quotations were printed. For example ? ?You can?t build a reputation on what you are
going to do ? Henry Ford?; ?You cannot shake hands with a clen ched fist _ Indira Gandhi?;
?Remember that you can miss a lot of good thi ngs in life by having the wrong attitude ? H.
Jackson Brown Jr.?. the grievor cited one of the 42 quotations th at appeared in the manual as
demonstrating that Ms. DesRoches? direction to her was ?two-sided?. That quotation reads:
?Knowledge is the most precious tr easure of all things because it can never be given away nor
stolen nor consumed ? Sanskrit proverb?. The grievor?s objection was not about the quotation
but its source. She testified that based on her res earch of dictionaries, Sanskrit is only used in
relation to the Hindu religion. Thus she argued that anything th at comes out of the Sanskrit
language is related to the Hindu religion.
As further support for her claim that the empl oyer singled her out because of her religious
beliefs, the grievor filed a card she had receiv ed at home by mail in December 2001, from M.P.P.
and then Minister of Community, Family & Ch ildren?s Services, Mr. T ony Clement. It was
signed by each member of the Clement family and contained the words ?From our home to
yours, our best wishes for peace and joy?.
The grievor was asked by her counsel to e xplain the second remedy she was seeking i.e.
?I want to be excluded from any workshops or training that incl udes a philosophy or creed that is
offensive to me and emotionally disturbing to me.? The grievor testified that she was directed by
her manager to attend a workshop called ?Colour me?, conducted by local trainers from the
8
ministry. It involved pegging each employee to a particular colour an d treating that employee
based on the colour assigned to her. She made inquiry from Brock Univ ersity and was advised
that those training methods had not been scientifically tested but was based on a philosophy
developed in the 1950?s by two wome n. She found that objectionable. She said ?I don?t want to
be involved in anything not scie ntifically proven. I felt that people were being profiled?.
The grievor was asked to explain her refere nce in the grievance to ?poisoned workplace
atmosphere?. She stated that in the peri od between the December 11, 2001 incident and the
filing of her grievance on February 7, 2002, the wo rk environment was ?horrible?. She stated
?you worry that someone may be offended. You cannot do anything. You can no longer
exchange ideas with colleagues about other religi ons, cultures, customs or family backgrounds?.
She referred the Board to the minutes of the St. Catharines Local Office Employee Relations
Committee meeting held on December 12, 2001. The Committee is a joint committee consisting
of employer and union representative s. The grievor pointed to item 3 of the minutes as part of
the poisoned work environment she was speaking of. It reads
2.Workplace ?environment?.
A number of staff have e xpressed to Managers a level of discomfort around certain
topics of discussion in the workplace in general and the office common room in
particular. There is some feeling that certain conversational themes, and related
symbols, are becoming more predominant a nd may not be appropriate in a workplace
setting. Sensitivities have become heightened in the office and all staff are asked to
be mutually tolerant and respectful of thei r colleagues as we attempt to manage this
issue. Staff are reminded that the workpl ace is a non-religious setting and the need
for awareness of that fact when interviewing clients deskside in th e office, which will
be a routine part of business practice shortly.
Action
: Managers will consult with the Regional Office on this issue and will also
seek advice from Regional HR staff. Employees are aware of WDHP (Workplace
Discrimination Harassment policy) require ments. A suggestion that a Regional
statement [reminder] to all offices on this issue would be helpful, with local office
follow up, would be the proper course of action.
9
The grievor understood that after the minutes came out, ?now we were not allowed
discuss anything of a religious nature even in the common room where we go for lunch.?
The grievor also referred to a memo randum dated June 20, 2002 from Mr. Terry
McCarthy, Regional Director for Ha milton/Niagara, addressed to all staff. It related to ?World
Youth Day 2002? and reads:
Ontario will be hosting World Youth Day from July 18-28, 2002. World Youth Day
is the biggest intern ational event ever st aged in Canada, and hundreds of thousands
of young people from around the world ar e expected to visit Ontario to
commemorate this special occasion.
The ministry recognizes that, for many reas ons, there may be a higher-than-normal
volume of requests for vacation/use of accu mulated credit and requests for unpaid
leaves during the month of July.
While we would like to accommodate staff re quests as much as possible, we may not
be able to approve all requests for the month of July should they compromise
government operations. For this reason you are encouraged to submit your requests
to your manager as soon as possible.
World Youth Day 2002 is expected to bri ng significant economic benefits and an
opportunity to showcase our province to the world. At the same time, it is important
to keep our offices open and running during this time. I would like to thank you in
advance for your cooperation and extra effort.
For more information on World Youth Da y, visit the Ontario World Youth Day
home page at www.wydontario.com or the event organizers? official website at
www.wyd2002.org.
Also filed was a pamphlet th e grievor received with a pay cheque. She believed that
every employee of the Province rece ived a copy of this pamphlet. It contained the logo of the
Province of Ontario at the top and a Christian logo which included a cro ss at the bottom. The
pamphlet reads:
10
ONTARIO WELCOMES THE WORLD
JULY 18-28, 2002
This summer, Ontario will host the largest international conference ever held in
Canada, when hundreds of thousands of dele gates from 150 countries join Pope John
Paul II for World Youth Day 2002.
This event will showcase Ontario to the world. Up to 35,000 volunteers are needed
to host delegates and help stage events.
To find out more about the many opportunities resulting from this historic event, visit
the Province of Ontario?s World Youth Day web site at www.wydontario.com.
The grievor testified that ?this shows how the employer has treated me differently by
saying I cannot hand out scripture. The employe r has shown favouritism and has invited staff to
a religious event, whereas I was advised to refrain from giving out scripture.?
On the same subject, the union also filed a page that appeared in the Ministry?s web site.
It is dated June 27, 2002 and reads:
June 27, 2002
Ontario prepares to welcome the world
World Youth Day ? July 18-28-2002
The world is coming to Ontario in July, and staff at the Ministry of Municipal Affairs
and Housing?s Provincial World Youth Day Secretariat are getting ready.
They are preparing for World Youth Da y activities on two fronts ? supporting the
overall government commitment to provide co untless thousands of guests with a safe
and memorable visit, and helping to recru it Ontarians to act as volunteers and hosts.
?World Youth Day is the biggest international event ever to be staged in Canada?,
says Minister of Municipal Affairs and Housing Chris Hodgson, the minister
responsible for World Youth Day. ?It give s us an opportunity to showcase Ontario
to the world. But it also challenges us to work smoothly as a team to make sure that
World Youth Day 2002 goes well. We are asking everyone across government to
pitch in.?
Scores of activities are being staged in On tario communities. They are part of an
extensive program developed since Pope John Paul II confirmed Toronto as host city
two years ago. ?Days in the Dioceses? will be held across the province July 18 to 20.
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The main program focuses on Toronto from July 22 to 28, incl uding a papal Mass at
Downsview Park on Sunday, July 28.
The biggest international event ever stag ed in Canada, hundred s of thousands of
people are expected to attend World Youth Day. That number could increase for the
Papal Mass. While it is a major event in the calendar of the Catholic Church,
members of all faiths are welcome to attend World Youth Day events.
?This will highlight Ontario as a perfect venue for major world gatherings?, Minister
Hodgson said. ?But it will require a lot of work on our part. I am asking everyone?s
support in planning, organizi ng and delivering on Ontario?s commitment to make
WYD a resounding success.?
?Our goal is to maximize the long-term econo mic benefits that fl ow from a safe and
memorable event. A study by the City of Toronto, based on at tendance of 500,000
people, suggests the economic spin-off for Ontario could exceed $ 300 million. We
have made a commitment to the success of the event within the bounds of our
jurisdiction and resources.?
Visit the web for more information:
Official World Youth Day 2002 (Catholic Church) www.wyd2002.org
Province of Ontario www.wydontario.com
City of Toronto www.city.toronto.on.ca/wyd2002
Finally, the union filed as evidence of th e employer?s inconsistency, a pamphlet she
found sometime in November 2002 in her mail slot at work. It was an invitation to attend
sessions held every Thursday evening at the Chri st Anglican Church in St. Catharines by ?the
Anger Management Self-Help Support Group?. She testified that she had no idea who placed the
pamphlet in her mail slot.
The grievor testified that in January 2002 she went to Ms. DesRoches? office and told her
?that people had died in world wars one and two so we can have freedoms here in Canada. I said
it?s an affront to the memory of those people when I am persecuted and denied my freedom of
expression?. She testified that she brought to the attention of Ms. DesRoches that a co-worker
who was a Muslim had brought some ?baked goodies? for her the day after Ramadan day and
12
asked why Ms. DesRoches was allowing that. The grievor could not recall whether Ms.
DesRoches responded.
Under cross-examination, the grievor agreed that prior to December 2001, employees had
freely exchanged Christmas gifts as well as Christ mas cards. She agreed that she had never been
previously told by management that she could no t do that. Employer counsel referred the grievor
to her evidence about her observing at the wor kplace Christmas cards with scripture on it,
jewellery such as crosses and angel pins, the tag a nd bracelet with ?WWJD?, and the religious
screen-savers. She was referred to her evidence about the Chri stmas luncheons that had been
held in the past. She was asked whether she found any of that to be offensive. She replied ?not
at all?. She also stated that she had not made any complaint about any of that.
The second grievance dated December 13, 2002 rela tes to two letters given to the grievor.
The first dated August 23, 2002 was signed by Ms. DesRoches and reads:
Letter of Counsel
Further to our conversation on Tuesday, A ugust 20, 2002 this letter is to advise you
to refrain from any religious based convers ations/invitations within this workplace.
Your continued co-operation in this matter is greatly appreciated.
The second letter dated October 16, 2002, and also signed by Ms. DesRoches reads:
Re: Letter of Counsel
This is a letter of counsel resulting from discussions with you and your union
rd
representative regard ing an incident that occurred on October 23, 2002, when a
client request was referred to you by a fello w employee. The client indicated that
they wished to remove two dependents from their benefit entitlement; however,
because the client could neither read nor wr ite they wished to report the changes over
the phone, instead of writing them on a Cha nge Card. When you were informed of
this by your colleague you indicated that you have to report su spicious cases to
13
management and that because of the age, gender and surname of the dependents and
client that there was a need for suspici on because terrorism may be involved. You
have said that you raised your concerns in the aftermath of the events of September
11, 2001. You then put the case on hold pe nding written documentation from the
client.
The events of September 11, 2001 were difficult for many of our employees,
and have created lingering anxi ety. That being said, the Mi nistry provides services
to a diverse population of clients and, theref ore, finds your behaviour objectionable.
As clarification, management has the following expectations: you will carry out
all duties and tasks of your job to the best of your ability; you will treat all clients
with dignity and respect and in accord ance with the Ontario Human Rights Code;
you will comply with the Ministry?s Standa rds of Conduct. Also, please be aware
that it is not a Ministry re quirement to ask clients, who are unable to do so, to put
their requests in writing. If you have any questions about these expectation?s please
discuss them with your immediate supervisor.
This letter is intended to make you aware of the employer?s standards and
requirements and is not disciplinary in any way. This letter will not
be placed on
your personnel file.
The union claims that these letters constitute discipline and that on that basis the Board has
jurisdiction to hold the employer to a standard of just cause. In any event, the union claims that
the letters contravene the prohibition against disc rimination on the basis of creed in article 3 and
also constitutes and unreasonable and malicious exercise of management rights contrary to
Article 2.
The grievor explained during her examinati on in chief what she meant by the word
?barrage? in her grievance. She stated that fo llowing the issuance of the first letter of counsel
dated August 23, 2002, ?it seemed like I was being hauled in to the manager?s office for any
slight problem or situation aris ing in the workplace.? She stat ed that she was called in for
meetings every time a workload or work issue ar ose between herself and CSR?s and ISC?s. She
stated that Ms. DesRoches had directed her that if she came across blatantly deficient work
which had been escalated to her by a CSR, she was to bring that to Ms. DesRoches? attention, so
that Ms. DesRoaches could bring that to the attention of the CSR?s Manager. She complied with
14
that direction. She testified that this created an atmosphere of ?us vs. them?, i.e. ISS?s vs.
CSR?s. The result was, the CSR?s started complaining to manageme nt about the grievor,
because they were aware that the grievor had br ought their deficient work to the attention of
management. Every time a CSR made a complaint about her, the grievor was ?hauled in? to the
manager?s office. The grievor testified that such meetings occurred frequently during the period
between the two letters of counsel. When the Vice-Chair asked the grievor what would happen
at these meetings in the manager?s office, she replied, ?To discuss any of the complaints that
would come from the CSRs about something I did that was a problem. The CSR?s were
complaining and I?d get pulled in.?
The grievor gave the following example. The grievor discovered that a CSR had escalated
to her incomplete work in that the CSR had failed to prepare a letter to the client advising of the
addition of a $ 42 monthly entitlement. In an e-mail issued the previous day the CSR manager
had established a procedure which required that the CSR should prep are such letters. Therefore,
the grievor put the file back on the CSR?s desk with a ?sticky note? stating that it was the CSR?s
responsibility to prepare the letter before escalati ng the file to the grievor. The grievor assumed
that the CSR had complained to Ms. DesRoches because, Ms. DesRoches sent the file back to
the grievor with a note that the grievor should prepare the letter in question. The grievor went in
to see Ms. DesRoches and showed a copy of an e-mail from the CSR Manager and advised her
that in compliance with the procedure in the e-ma il it was the CSR?s responsibility to prepare the
letter. According to the grievor, Ms. DesRoches admitted her error and stated that she was not
aware of the e-mail. Ms. DesRoches then sent the file back to the CSR with a copy of the e-mail
and directed the CSR to do the letter. When aske d what her complaint was with regard to this
incident, the grievor stated that Ms. DesRoches accepted the CSR?s complaint that she was a
problem, when she had in fact complied with procedure.
15
The grievor provided a further example of a ?b arrage?. She and a CSR disagreed on how a
certain file was to be handled. The grievor pointed out to the CSR what the proper way was, that
the CSR had not done the work properly. The CSR responded by stating ?This is the way I am
going to do it. If you have a problem you can speak to my manager.? The grievor told the CSR
that she will not go to management to complain about a colleague, and told the CSR that her
attitude was contributing to a poisoned work e nvironment. The CSR replied that she did not
care. The grievor testified that as a result of this incident a meeting was held. The attendees
included the CSR Manager, Ms. DesRoches, the local union president, a union steward, the CSR
in question and the grievor. The CSR Manager Mr. Gary Norris, told those present that the
purpose of the meeting was ?to find out details of the incident, why it took place, how to resolve
the situation and how to prevent such future occu rrences.? The grievor testified that there had
been a past history of a poor wo rking relationship between herself and the particular CSR. The
grievor had made up her mind to make a fresh st art following the move. However, the meeting
did not help in that regard because it ended up as a re-hashing of the pa st difficulties between the
grievor and the CSR. The grievor testified that at the end of the meeting, the CSR stated that she
would work with the grievor, and the grievor herself reiterated th at she was also prepared to
work professionally with the CSR and to treat past problems as non-existent. When the Vice-
Chair asked what her complaint was against the em ployer she replied, ?I di dn?t like the idea that
the past was brought up at the meeting. They were supposed to be already resolved.?
The grievor testified that she felt as if ev erything she did was ?not according to business
practices and protocol?. She said, ?managers would entertain CSR?s to come to them with
complaints, instead of asking them to work things out with myself?. She stated that rather than
attempting to resolve the situation, managers were creating a poisoned work environment by
16
entertaining these complaints ?instead of seeing if I was innocent. It seemed always managers
assume I was guilty. So you feel no matter what you do or say, you are being picked on.?
The grievor proceeded to give detailed testimony about disagreements she had with various
co-workers, mostly CSRs. I will not set out that evidence. It suffices to note that the grievor
testified that all of the complaints made agai nst her by her colleagues, and the management?s
willingness to entertain such complaints, made her feel belittled and incompetent.
The grievor, however testified that the em ployer launched a Workplace Cultural Review in
September 2002, which had been endorsed by the Employee Relations Committee. The
documentation indicates the purpose of the review to be to ?pr ovide an objective assessment of
the workplace culture, with a view to ensu ring a positive and respectful workplace, while
improving the overall efficiency of the office?. The grievor testified that sh e wanted to be a part
of the solution to the problem of colleagues not getting along and informed Ms. DesRoches of
her desire to be included in the review. As a result she was one of the individuals selected to be
interviewed by the consultant who carried out the re view. She stated that the Regional Director
attended a staff meeting and issu ed ?a synopsis report? from the consultant, but she believed that
the full report was not issued to the staff at the St. Catharines local office. She had heard that the
full report concluded that the management was th e problem. However, the report issued to the
staff inferred that staff was to bl ame. The grievor testified that the review exercise did not make
the work environment any better. She felt that the report gave the managers more fuel to put the
blame on staff.
The grievor testified about the incident which is the subject of the letter of counsel dated
October 16, 2002, which was referred to by the parties as ?the raci al profiling? allegation. She
17
stated that a CSR had escalated a file to her with a note attached. In the note, the CSR stated that
she had received a telephone call from a client w hose family was in receipt of benefits. The
client informed the CSR that two adult sons ha d gone away from home a nd that the parents had
no idea of the two sons? whereabouts. The client requested that the two sons be removed from
the family unit?s budget. The gr ievor approached the CSR and aske d whether the client had sent
in a completed changes form or some other wri tten document requesting the change. The grievor
testified that her usual practice was to get any request for change in writing. When the CSR
stated that nothing in writing was received, she asked the CSR whether it would be possible to
get something in writing. The CSR replied that th e client could not read or write. The grievor
testified that she tried in many different ways to explain to the CSR why it was prudent to get a
request for change in writing. She stated that it was a very calm and amicable conversation
between herself and the CSR. Therefore she wa s surprised when she was accused of racial
th
profiling. Union counsel asked the grievor whether she mentioned ?September 11
? during her
conversation with the CSR. The grievor replied ?I don?t think so. I cannot recall?. Counsel
asked, ?Did you mention anything about the client?s ethnicity, place of origin, religion etc?? The
reply was ?I don?t think so.I do not recall that I did?.
The grievor went on that she went in to see Ms. DesRoches to discuss the situation. She
testified, ?I asked her, if there are two missi ng dependent adults and if we see reason for
suspicion or see something odd are we not supposed to report? Shouldn?t we get something in
writing? She said see if you can cal l the client and get something?.
th
Union counsel asked the grievo r ?Did you mention September 11, or the dependents?
ethnicity or race etc??. This time the grievor re plied, ?Yes. Because we had received an e-mail
th
after September 11 that if we see anything unusual, to report it.? She confirmed that she had
18
mentioned that at the meeting with Ms. DesRoches. The grievor testified that she subsequently
called the client and obtained a written notation. Subsequently, Ms. DesRoches met with the
grievor and advised her that the CSR had complain ed to her manager, Mr. Gary Norris, and Mr.
Norris had reported the complaint to Ms. DesRoche s. Ms. DesRoches told the grievor that she
had engaged in racial profiling which was contra ry to Ministry Standards of Conduct and the
Human Rights Code. The letter of counsel followed.
The grievor testified that the accusation by ma nagement that she had engaged in racial
profiling was abusive and malicious. It was a ?horrible blow? to he r. She explained that she had
close and cordial relations with her niece?s fian cé who was of Muslim Arabic descent. She
stated that management decided to use her as an example to make the statement that they will not
tolerate racial profiling, and that they did that with no gr ounds and without understanding the
implications.
Under cross-examination, it wa s put to the grievor that during her inquiry from Ms.
DesRoches she highlighted the fact that the two sons had foreign last names. She stated that she
did not recall doing that, but agreed that she coul d have done so. She also agreed that she asked
about the need for contacting th e authorities in those circumstances, and referred to an e-mail
that directed that any suspicious or unusual act ivity be reported. The grievor denied under cross-
examination that she mentioned anything about ?t errorism? to the CSR. However, she recalled
that when Ms. DesRoches subsequently met with her and a union repres entative, Ms. DesRoches
stated that the CSR had reported to her manager th at the grievor had used the word ?terrorism?.
She did not, however, recall Ms. DesRoches say th at the CSR had reported that the grievor had
to be suspicious because of the two dependent s gender and last names, ?because terrorism may
be involved?, and that ?Canadia ns are not aware of terrorism?. She denied making any such
19
statements to the CSR. When asked what he r response was when Ms. DesRoches put the CSR?s
allegations to her, the grievor replied that she could not recall an d added that the union
representative was there specifically to take notes about what was stated by whom.
The letter of counsel dated August 23, 2002 also includes a direction to the grievor to
refrain from any religious base d invitations. Evidence was tendered with regard to the
circumstances that led to that direction. The grie vor testified in chief th at Mr. Peter Daniels was
a motivational speaker from Australia. He wa s a multi-millionaire, who normally charged in
excess of $ 200.000.00 to speak, but spoke free of ch arge when speaking at a church. If anyone
brought along a certain number of people to his speech, Mr. Daniels presented everyone in that
group with a gold or silver coin. She testified that Mr. Daniels was sche duled to speak at her
church in August 2002. She said th at she felt it would be a good idea to invite people at work
who may want to attend. She asked several people at work to attend, and told them that if they
wished they could ?check him out? at his web site before decidi ng. She testified that she popped
into the office of the CSR Manager, Mr. Gary No rris. He was working at his computer. She
said, ?I advised him of the speaker and told him th at he can check him out at the web-site if he
wished. I said it?s a once-in-a-lifetime chance because Mr. Daniels had made it a point to not
speak in the same area more than once. Mr. Norris asked me where it was taking place and I said
it is at my church and that it is free, so there was no cost to him.? The grievor testified that if
Ms. DesRoches had not been off on vacation, she would have left a message for her also.
The grievor testified that when she received the letter of counsel alleging that she was
?inviting people to re ligious events?, she referred to mana gement a pamphlet about the speaker
which she had in her possession, wh ich she said shows clearly that it was not a religious event.
The pamphlet, depicts a photograph of Mr. Daniel s and sets out the time and location of his
20
speech. It is titled ?Peter J. Daniels ? From De spair ? to Destiny?. The text describes Mr.
Daniels? background and how everyone had predicte d a bleak future for him. Then the text
reads:
But Peter J. Daniels proved them all wrong; for the last 30 years he has
continued to confound the skeptics. He has succeeded in real estate and as an author.
He has become one of the most sought after public speakers in the world today.
Peter Daniels believes that followers of Jesus Christ are destined for greatness.
Though commonly speaking for fees of $ 200,000 in the corporate world, he now
speaks at no charge to bless local churches.
The grievor testified that when she received the letter of counsel she felt that she was
singled out. She named one co-worker who had told her about a speaker at her church, and
named two others with whom she had discussions about churches.
She also filed a group of documents as eviden ce of ?religious activity? that was tolerated,
and even promoted, at the workplace. This exhibit consisted of the following:
An e-mail dated October 11, 2002 from the Hamilton head office addressed to all
-
subscribers requesting them to launc h the ?Christmas Dinner & Dance?.
A similar e-mail dated October 16, 2002 re questing the launching of ?the United
-
Way Halloween Bake Sale.?
An e-mail dated October 16, 2002 from Hamilton Head Office to all subscribers
-
setting out ?Christmas Dinner & Dance I nvitation? as the subject and stating
?Please launch the attached for best viewing results?.
An e-mail dated October 28, 2002 with the subject as ?Bake Sale ? United Way?,
-
and stating ?Launch the attached for best viewing. Don?t forget Wed. October
th
30.?
An e-mail dated November 14, 2002 with the subject ?Festive Season Potluck
-
Lunch? and stating ?Please launch the attached for best viewing/printing?.
An e-mail dated December 9, 2002 from Ms. DesRoches with the subject
-
?Christmas Luncheon?.
21
An e-mail dated December 12, 2002 from the Regional Director with the subject,
-
?X?mas Cheer?.
A leaflet advertising a musical presentation to be held at the grievor?s church, titled
-
?All on A Christmas day?. The grievor testif ied that this was handed to one of her
co-workers outside the office in a public area by some unidentified person.
A leaflet announcing the office Christmas Luncheon on December 18, 2002 at $ 10
-
each. The grievor testified that she did not attend, fearing that her attendance will
be in contravention of the direction she had received.
An e-mail dated December 18, 2002 from the Communications and Marketing
-
Branch stating: ?Happy holiday to all sta ff of the Ministry of Community, Family
and Children?s Services. It is our pleas ure to extend to you and your families our
warmest wishes for the holiday season. We hope that this special time brings you
joy and happiness.?
A Christmas card given to her in 2002 by a colleague. It had the words ?A
-
Christmas prayer?. The grievor testified th at it was very nice of that colleague to
make that gesture because it was a personal statement that she recognized the
grievor?s religious beliefs.
A Christmas card given by a nother colleague in 2002. It had a picture of 3 men
-
riding on camels. The words ?Joy to the World? was printed at the top. The
grievor testified that the card was religious because the pi cture depicted the story of
the three wise men?s visit to the new-born Jesus Christ and the words were directly
from a Christmas song.
The grievor testified that in vi ew of the direction in the le tter of counsel dated August 23,
2002 ?to refrain from any religious based convers ations/invitations within the workplace?, she
took steps to ensure that she complied. She advised co-workers not to have religious discussions
if she was within hearing distance. She deliber ately did not attend the office Christmas luncheon
on December 18, 2002, because she concluded that it was a ?religious invitation? and her
attendance would result in a non-complia nce with the letter of counsel.
The grievor stated that she was caught between wanting to be receptive to co-workers and
not breaching the letter of counsel. She relate d instances where she was placed in difficult
circumstances. She referred to the Muslim colleague who brought in baked goods the day after
22
Ramadan and stated that she felt uncomfortable because her presence could have potentially
breached the prohibition in the lett er of counsel. She testified th at she decided to eat her lunch
alone at the workstation or outdoors, because of the fear that if she ate in the lunchroom, co-
workers may have religious discussions and her pr esence would contravene the letter. She also
decided not to participate in any event sponsor ed by the Office Social Committee, again because
of fear of breaching the letter. She testified th at while walking through the office she overheard
two CSRs discuss religion at thei r workstations located right outsi de the offices of 3 managers.
The same day there was a staff meeting of the ca se management team. Before the meeting had
started, Ms. DesRoches, another I SS and herself were waiting for the others. She heard the ISS
relating to Ms. DesRoches events about her children ?which involve d religious situ ations?. She
felt very uncomfortable because of the prohibition in the letter. Later th at day she met with Ms.
DesRoches and the union President and sought advi ce on how to deal with situations when
others have religious di scussions in her presence. She asked whether she would be in breach of
the letter and whether she was to ?get up and leav e?. The grievor testified that she could not
recall what the response was from Ms. DesRoches or the union president, and that she had no
notes on that.
The grievor testified about a furt her ?religious discu ssion? she was exposed to near her work
station on October 28, 2002. When asked what the religious discussion was, the grievor stated
that a co-worker was relating to those present that although she was a Catholic her son was doing
a school project about the Jewish religion. She stated that it was good for her son to learn about
another religion and that she was doing a lot of running around to help her son complete the
project. The grievor testified that she considered that to be a religious conversation and therefore
felt concerned being present.
23
The grievor testified that she had similar concerns about the office events around Halloween
in October 2002. She stated th at Halloween was the holy day of the Wicca religion and for
Satanists. Halloween according to her was ?100 percent against Christianity and any other
religion?. She further testif ied that at a staff meeting on October 28, 2002 Halloween events
were mentioned. She approached the union and complained that she was ?involuntarily put in a
position to be involved in a religious conversatio n.? She stated that she had no notes and could
not recall what response she received.
The union called another ISS, Ms. Hollis Olexi-MacPherson, to testify about her
knowledge of the employer permitting religion at the workplace between December 2001 and
December 2002. She testified that in general conversation employees in the office discussed
religion freely. By way of example she said, ?One will ask about another?s vacation plans and
the response may be ?I will be attending midni ght mass.? We talk about food preparation and
discuss ethnic recipes. Most of this takes place in the lunc h room?. Ms. Olexi-MacPherson
testified that the office social committee organize d monthly luncheons. On months that include
special days such as St. Patrick?s Day, Vale ntines Day, Easter, Halloween, Thanksgiving and
Christmas, the event will have a theme related to that special day. She stated that there was no
restriction on celebrating religi ous days. At Christmas for ex ample, people were allowed to
decorate their workstations, some using lights and small Christmas trees. She testified that in
some years a competition was held to select th e best decorated workstation, and Ms. DesRoches
judged the winner. She also tes tified that she had never been di rected by managers to refrain
from religious conversations. She stated that she has had a 1½ inch tin Christian cross on her
computer base. She had not been told to remove the cross. Under cross-examination, she stated
that she did not know if managers had seen th e cross, that no one had commented about it.
24
Mr. Gary Norris, the ISM in charge of CS Rs testified that at monthly management
meetings their was discussion relating to comp laints by co-workers about the grievor?s
inflexibility and lack of cooperati on. He stated that the major ity of the complaints came from
CSR?s. There was a reluctance on their part to approach the grievor on work related issues and
the managers were concerned that this would adversely impact upon service delivery.
Mr. Norris testified that employees had also brou ght to the attention of managers a feeling of
discomfort about the prevalence of religious di scussions in the workplace, particularly in the
lunchroom. The managers were al so concerned about presence of religious items at workstations
because by then a new practice of interviewing clie nts at the employees? desk had started. As a
result, the management team decided to involv e the union in dealing with this concern, by
referring it to the Local Employee Relations Committee (LERC) of which Mr. Norris was the
Management co-chair. The union co-chair Judy Debries agreed that a plan to deal with the
concern should be reached through LERC. The issue was discussed at LERC at which point the
committee was unsure about how to proceed. Th e committee sought input from local human
resources, who in turn sought advice from corp orate human resources. The advice received was
that steps must be taken ?to ensure that the work place is a neutral setting?. Mr. Norris testified
that the union LERC co-chair fully shared the management?s concern and was equally struggling
trying to find a solution.
The evidence is that LERC minutes set out ear lier in this decision were posted at the
workplace and also electronically sent to al l employees at the St. Catharines and Hamilton
offices. Mr. Norris stated that the LERC member s did not intend an absolute prohibition of
religion in the workplace.
25
The evidence is that following the LERC proce ss, managers were more vigilant about
religious neutrality in the workplace. Besides that, the only follow up was a very general
memorandum dated February 27, 2002 issued to a ll staff in Hamilton/Niagara Region reminding
of the employer?s commitment to the Workpl ace Discrimination and Harassment prevention
Policy.
Mr. Norris testified about the ?religious invitati on? incident. He stated that he was working
in his office when the grievor walked in unannounced, and told him that she was offering him an
invitation to a function at her church. She to ld him that a well-known speaker was speaking and
that if she took 20 or more peopl e to the event she would get a reward. He thought that she may
have mentioned that he was a motivational speake r. He indicated he was not interested. He
testified that the grievor stated that he should attend ?because it will be good for you?. Mr.
Norris stated that he politely declined. Then the grievor showed him a document with some
words and a picture. He did not look at it but stated ?No thank you very much?, and she left.
Mr. Norris testified that when th e grievor said, ?it will be good for you? he understood her to be
saying that he needed help. He felt very uncomfortable and mildly offended because the
invitation was out of place and because of how the invitation was delivered. He felt he was
trapped as she sat to his left with her elbows on the desk. He testified: ?It was an aggressive
invitation. Just because of the physical sp ace. She was right there in my face?.
Mr. Norris testified that in this period the grievor?s direct manager, Ms. DesRoches was on
vacation. Therefore, he convened a meeting a coupl e of days after the incident. Present were
Mr. Norris, another manager Mr. Mark Granger, the grievor and her union representative Mr.
Jim Wellington. At the meeting, Mr. Norris told the grievor that the invitation she had made to
him at the workplace was inappropriate, that it made him uncomfortable and that he felt he was
26
being recruited. He asked her whether she had invi ted others as well. She replied that she had.
Mr. Norris told her that it was fine to invite any one provided it is not done at the workplace. He
told her that he will be putting a note in her file about the meeti ng. Mr. Norris testified that at
the meeting he explained to the grievor that the direction was ?that there was a need to ensure
that the workplace is neutral. That she had to be sensitive to others? thoughts about religion and
to refrain from aggressively pursuing religious ba sed invitations at work?. He felt that she
understood the intention of the direction since she nor the union representative indicated
otherwise. Mr. Norris testified that at that point the union representative Mr. Wellington asked
whether ?this was discipline? and th at he replied that it was not. Mr. Norris agai n described the
invitation as ?It was the aggressive manner in te rms of physical space. Her words had a certain
fervor. She said it will be good for me. She felt very strongly. It was the overall aggression and
passion. It was not a passive invitation. It was ve ry much in my face.? Mr. Norris testified that
by directing her, his intention wa s to educate and inform the grie vor and to ensure that she did
not repeat it. It was not meant to be disciplinary. Mr. Norris testified that the note to file was
intended to document the meeting. It reads:
Note to File:
Meeting in my office this date with Rosie [including local OPSEU Rep Jim
Wellington at Rosie?s request] to discuss my concern around Ro sie?s invitation to
myself, [and other staff] to a recent event associated directly with Rosie?s church.
I advised Rosie that I was not comfor table with the ?invitation? personally,
and as a manager, my responsibility was to ensure that religious based
conversations/invitations do not enter the workplace. I cautioned Rosie as to
extending similar invitations to co-workers at the workplace or generating similar
discussion [a caution which Rosie had received previously]. Rosie indicated that she
had indeed asked other co-workers to the same event.
I advised Rosie I would place this note on her file.
27
Mr. Norris testified that he informed Ms. DesRoches about the invitation and the
meeting, upon her return from vacation. He discusse d with her, as well as with the management
team, whether any further steps needed to be taken, in addition to his note to file. He also
obtained input from human res ources. The consensus was that the grievor?s manager should
issue a letter of counsel. According to Mr. No rris the possibility of disciplinary action was
discussed and ruled out. Instead, the consensus was that a letter of counsel with a goal to educate
and inform the grievor would be issued. Mr. Norris testified that the Program Manager, Ms.
June Livingstone was also consulted and she also agreed that a letter of counsel would be the
appropriate action.
Mr. Norris also testified about a meeting he and Ms. DesRoches had with the grievor about
the ?racial profiling? incident. Both managers expressed at the meeting that labeling someone as
suspicious based on their surname, gender and ag e was inappropriate. Mr. Norris testified that
he may have first used the phrase ?racial profiling? to describe the grievor?s conduct. According
to Mr. Norris, the grievor?s res ponse was one of defiance. She wa s taken aback that her actions
were being questioned. More th an anything, the grievo r was upset that the CSR had complained
to management rather than dealing with her directly. She questioned why management was
getting involved. She expressed that she felt th at her actions were appropriate because she had
reasons to be suspicious. She did not dispute the information as to what she had told the CSR,
but appeared not to get the message that conc luding that someone was suspicious and that
terrorism may be involved, based on that person?s surname, age and gender was not appropriate.
Her main focus was about why the CSR went to management and the gene ral concern about her
relationship with CSRs. She expressed that the CSRs were attempting to undermine her.
28
Mr. Norris testified that the management team discussed about an appropriate response to
the grievor?s conduct. The program manage r and Human Resources Dept. were also
consulted. They discussed various options in cluding a suspension without pay and requiring
the grievor to take courses on workplace sensitiv ity. However, the ultimate decision was to
issue a letter of counsel which was not and would not be seen as discipline with the intention
of informing and educating the grievor.
The Board heard the testimony of the CSR involved in the alleged ?racial profiling?
incident, Ms. Brenda Cirilli. She testified that she had a call from a client who informed that
her two adult sons had left the home and requested that they be removed from the benefits
unit. The client told her that she was calling because she could not write English. Ms. Cirilli
took the information down and esca lated it to the grievo r, who as an ISS had the authority to
do the change. Ms. Cirilli agreed that normal practice was to obtain a written request for
changes. However it was not uncommon that clie nts would say they coul d not write English.
The office protocol in such cases was to ask wh ether the client could ge t a friend to write out
the information. However, that protocol did no t apply in cases such as this one, where the
information conveyed resulted in the reduction of the client?s benefit amount. In such cases
receiving the information by telephone call was acceptable and in her experience ISS?s had
acted on such information without insisting on a written request. Ms. Cirilli testified that
later on the shift the grievor a pproached her at her work station and asked her whether she
had received anything in writing from the client and Ms. Cirilli replied that she had not.
Then the grievor asked whether Ms. Cirilli knew where the two dependent adult sons had
gone. Ms. Cirilli indicated th at the parents did not know, a nd asked the grievor why she
wanted to know. Ms. Cirilli testif ied that in response, the grievor pointed to the last name of
the client, which Ms. Cirilli described as ?East I ndian or of that nature?, and made reference
29
to ?9/11?, and the possibility that terrorism may be involved and commented that Canadians
were not aware of terrorism. Ms. Cirilli understood from what the grievor said, that she was
suggesting that the two sons may be involved in terrorism and that th e authorities should be
informed. Ms. Cirilli testified that she was flabbergasted and left speechless because the
grievor was suggesting that someone ought to be treated differently because of their
background, heritage and nationality. Ms. Cirilli was of the opinion that the office had no
right to know where anyone removed from a bene fit unit had gone. Ms. Cirilli testified that
shortly after, Mr. Norris happened to walk by her workstation. She mentioned to him what
had happened. Ms. Cirilli testified that Mr. Norris appeared to take the incident quite
seriously. Ms. Cirilli told Mr. Norris not to pursue the matter because if he did, the grievor
would make her life miserable and that she w ould not be able to work with the grievor.
The grievance dated December 13, 2002
This grievance raises three issues rela ting to the letters dated August 23, 2002 and
October 16, 2002 respectively. First, whether either letter was discipli nary. The second issue
is whether the letter dated August 23, 2002 c onstituted discrimination on the basis of the
grievor?s religious beliefs in contravention of the collective agreement and the Human Rights
Code. The only issue with regard to the second letter relating to the racial profiling allegation
is whether or not it is disciplinary and if so whether there was just cause for it. I shall deal
with the latter issue, together with the grievance dated Februa ry 7, 2002 because it is directly
related to the issues raised in that grievance.
The third issue raised is whether the empl oyer had engaged in a course of conduct,
described by the union and the grievor as a consta nt barrage, which amounted to an improper
exercise of management rights in vi olation of the collective agreement.
30
Whether the letters are disciplinary
th
, (1989) 8 L.A.C. (4) 391 (Springate) and Re
Citing Re Toronto East General Hospital
th
Riverdale Hospital (2000) 93 L.A.C. (14) 195 (Surdykowski) union couns el argued that the
fact that the employer labeled the letters as letters of counsel is not determinative of the issue.
He emphasized that the impact of the letters on the grievor is what matters. He referred to the
grievor?s testimony that she was deeply hurt by th e chastisements containe d in the letters.
The letters, he pointed out, state that what the grievor did was objectiona ble. Moreover, they
direct the grievor to comply. ?What happens if she still did not comply?? he asked.
Answering his own question he stated that the employer was going to ?kick it up a notch? and
discipline the grievor more severely. In these circumstances he urged me to find that the
letters were not letters of counsel but disciplin ary letters of reprima nd. Their purpose, he
said, was punishment and not guidance.
In Re Black 885/90 (Dissanayake), the issue before the Board was whether a
memorandum issued to the grievor was disciplinary. A unanimous panel of the Board at p. 6-
7 wrote:
In this case, the memorandum on its face is not disciplinary, in that it does
not purport to punish the gr ievor for his conduct on Ma rch 21, 1990. The evidence
about what occurred at the meeting clearl y is that the employe r expressed concerns
about the grievor?s conduct on that day and explained to him that he should not
engage in similar conduct in the future. The fact that the employer emphasized that
any future incident of this nature will be considered insubordi nation and appropriate
disciplinary action will be taken (a fact confirmed in the memo randum) by itself does
not make the meeting or the memorandum disciplinary in nature. The memorandum
was not placed it the grievor?s personnel file.
At p. 8 the Board observed:
While some employees, like the grievor, may not like verbal or written
communication by supervisors about their conduct or performance, the employer
does have the right to co rrect employees through guida nce, counseling or even
31
warning, without engaging in disc iplinary action. The exercise of that right is to be
encouraged rather than discouraged. On the other hand, the Board can understand
the concern of an employee that a documen t may be used against him in future
disciplinary situations despite verbal assura nces to the contrar y. This may well be
possible if there is a turnover in manageme nt. The employer could probably have
avoided this concern if it stated in the memorandum itself that it does not constitute
discipline.
I have no doubt that the grievor was distressed that the empl oyer saw fit to issue her the
letters which were critical of her conduct. However, that cannot be and is not the test. Nor is the
fact that the letters po inted out that the grievor?s conduct wa s inappropriate and directed her to
conduct herself appropriately suggestiv e of discipline. The uncontradi cted evidence is that in the
presence of a union representative, the employer assured the grievor that the letters would not be
disciplinary. Also uncontradicted is the fact th at the letters were not at any time placed in the
grievor?s personnel file. As far as the letter of couns el about racial profiling even the concern
referred to by the Board in Re Black (supra) does not arise, because this employer did exactly
what the Board suggested, i.e. stated in the document itself that it does not constitute discipline.
Certainly, if the grievor repeats the conduct whic h was the subject of the letters, the employer
may take disciplinary action, as union counsel suggests. In that event the employer will be
obligated to establish just cause in the event th e discipline is grieved. However, that does not
have any relevance to whether the letters are them selves disciplinary. The employer is entitled to
initially attempt to correct an employees? cond uct in a non-disciplinary way. As the Board
observed in Re Black, this is to be encouraged. If the non-disciplinary approach does not
produce the corrective results, it is open to the employer to initiate a disciplinary response. The
non-disciplinary directions, letters etc. will not form a step in the progressive discipline system,
but may well serve to establish th at the grievor was made aware of the employer?s expectations
of the employee, should that be in issue.
32
With regard to the letter dated October 16, 2002, it is irrelevant whether the grievor or
Ms. Cirilli was correct about the ne ed for a written request in the particular circumstances. The
issue is whether in dealing w ith the situation the grievor act ed inappropriately. Ms. Cirilli
clearly and unequivocally testified that the grievor pointed to th e fact that the two dependents
had foreign last names in referring to the po ssibility that terrorism may be involved. Ms.
DesRoches testified to the same effect about he r conversation with the grievor. In chief the
grievor stated that she could not recall whether she referred to the dependents? foreign last names
in those conversations. Under cross-examinatio n, the grievor again maintained that she could
not recall whether she made referen ce to the last names. In light of that evidence, I find that the
grievor did link the two individuals? foreign last names to the possibility of terrorism. The
grievor expressed that she was offended by the employer?s allegation that she had engaged in
?racial profiling?. Whatever the grievor?s definition of ?racial pr ofiling? may be, I find that the
employer was reasonable in concluding that it wa s inappropriate to consider in any manner the
fact that a person had foreign last names in relation to any decision, and the employer was
entitled to give directio ns to that effect. Even if I had found that the letter was a disciplinary
letter of reprimand as the union claims, I would have held that there was just cause for such
discipline.
However, I find that the two letters before me are clear examples of a non-disciplinary
response by an employer. Therefore, the Boar d has no jurisdiction to embark on a just cause
inquiry.
33
Improper exercise of management rights
The gist of the grievor?s a llegation of ?a barrage? is that she was constantly ?hauled in?
to the manager?s office as a result of complain ts from the grievor?s co-workers against the
grievor.
The evidence is that the bulk of these complaints came from the CSRs, who were
managed by ISM Mr. Gary Norris. In his submi ssions union counsel put the total blame for the
grievor?s difficulties on Mr. Norris. Counsel actually went further, and suggested that Mr. Norris
was the mover behind the two letters of counsel. Counsel submitted that this fact was ?obvious?.
At another point he stated that this fact can be ?inferred? from the evidence. Despite counsel?s
suggestions, there is no evidence whatsoever to subs tantiate that. A number of CSRs testified at
the hearing about the disputes they had with the grievor. During their cross-examinations, it was
open to union counsel to question them about a ny role Mr. Norris may have played in their
disputes with the grievor. He did not do so. Mr. Norris himself could have been cross-examined
as to whether he did anything to incite conflicts between the CSRs who worked under him and
the grievor. That did not happen either. The letters of counsel were signed by the grievor?s own
supervisor, Ms. DesRoches. She also testified. If counsel wa s taking such a position, it was
incumbent on him to pursue during the cross-exam ination of Ms. DesRoches and Mr. Norris, his
point that although Ms. DesRoches signed the le tters, Mr. Norris was somehow responsible for
the action taken against the grievor. None of that happened. In those circumstances, there is no
way the Board can make the implication union counsel suggests.
The Board did hear from several CSRs about the complaints they communicated to
management about the grievor. It is not my mand ate, nor my intention, to decide who was right
in each of the situations. However, I generally observe based on the evidence, the following. In
34
many cases the position taken by the grievor was ?correct?. For example, she was ?correct? in
refusing to sign a document for a CSR who appro ached her while she was on lunch break, even
though that would have taken only a few seconds. She was also correct for example in
emphatically letting CSRs know that their role was to collect the necessary information and pass
it on to her, that it was her responsibility to ma ke decisions based on that information, and that
she was not obliged to discuss the issues with any CSR. Generally, it is also the case that in the
event of a disagreement, the grievor?s decision w ould prevail over the CSR?s, subject of course
to intervention by management. However, the ev idence clearly indicates that by taking a very
formal approach to her dealings with the CSRs, friction gradually developed between the CSRs
and the grievor. The CSRs viewed the grievor to be inflexible, uncoope rative and unfriendly.
They felt that the grievor was wielding her authority to put down the CSRs. Two CSRs testified
that the grievor went out of the way to put the CSRs ?in their place?.
It is fair to conclude from the evidence th at as a result, the CS Rs in question took the
opportunity to complain to management about a nything they perceived to be improper conduct,
or failure to follow protocol, on the part of the grievor. The evidence is that when complaints
were received, management met with the grievor to discuss the complaints with her. This is
what the grievor calls ?a barrag e? and ?being hauled in?, and what the union su bmits is an
improper exercise of management rights.
During the grievor?s testimony her real concern in this regard became evident. It was the
grievor?s belief that management should have di rected any CSR who came with a complaint to
settle that directly with her. The grievor fe lt that managers should not have got involved. She
felt that by meeting with her each time a complain t was received, the CSR?s were encouraged to
file more complaints.
35
Counsel cited to me numerous legal authoritie s on the issue of manage ment rights including
Re Bousquet, 541/90 (Gorsky), where the issue is dealt with as to whether a mere bad faith
exercise is sufficient to ground a vi olation or whether the grievor is obliged to establish that such
exercise had compromised a collective agreement right. It is not necessary for me to deal with
those legal authorities because on the basis of the evidence I have concluded that the employer
did not act in bad faith in dealing with the si tuation it faced. The union has not suggested that
any collective agreement right of the grievor ha d been denied or compromised as a result.
I have already noted my conclusion that the employer was not in any way guilty of inciting
complaints by CSRs against the grievor. The evid ence, however, is that the employer did receive
such complaints regularly. It was evident from the testimony of the empl oyer witnesses, that the
managers were distraught that they had to regular ly deal with these complaints. It was clear to
me, that they would have preferred not to have received such complaints. Both Ms. DesRoches
and Mr. Norris testified that they had to spend a significant amount of their work time to deal
with these conflicts between the grievor and her co-workers. That took them away from other
work priorities they had as managers, whic h in turn adversely affected the operation.
Nevertheless, the uncontradicted fact is that these complaints were received. When faced
with constant complaints about one employee from her co-workers, the employer could have
ignored the complaints and done nothing. Inst ead, the employer decided to deal with the
complaints. The grievor suggests that the employer should have in structed the complainants to
settle the issues directly with the grievor. The issue is not wh ether employer adopted the correct
option or even the most reasonable option. The issue is whether the em ployer acted in good faith
36
in tackling the situation it was faced with. I conclude that the employer?s conduct was not only
undertaken in good faith, but also was reasonable in the circumstances.
It must be noted that the co-workers? complaints against the grievor all related to work issues
and processes. They were not personal issues. Th erefore, it is in the employer?s interest to make
sure that work issues and processes are being pr operly conducted. It is not reasonable to expect
the employer to simply ignore such complaints b ecause those issues are directly related to and
can impact on service delivery. If the employer is to deal with the complaints, it is reasonable
that the employer meet with the grievor to get her side of the story. If it did not, it is vulnerable
to accusations that the grievor was not afforded an opportunity to respond to allegations made
against her. Very importantly, there is no suggestion and no evidence that the grievor was
mistreated at the meetings in question. Nor is there any evidence that the employer took any
action against the grievor following the meetings. For example, no discipline was imposed. The
alleged ?barrage? is the mere fact that the employe r met with the grievor. In fact the evidence
indicates that in some instan ces the CSR?s allegation was found to be clearly unfounded and the
grievor fully vindicated following her explanation. For example, in one instant it was concluded
that the CSRs complaint about the protocol fo llowed by the grievor was made because she was
not aware of a recent directive issued by mana gement. I have set out earlier in the award
examples of meetings called by the employer whic h successfully resolved the situation. In one
case, Ms. DesRoches admitted her mistake and the grievor?s position was upheld. In the other,
the CSR and the grievor resolved amicably to work with each other professionally. This would
not have happened, had the employer not intervened.
No doubt, the grievor would have preferred th at the employer did not ?get involved? and
simply instructed the complainants to deal direct ly with the grievor. Except perhaps in the most
37
collegial and peaceful of workplaces, it is not r easonable to expect that an employer will direct
that employees settle th eir work related disputes among themse lves. In the circumstances of the
relationship that existe d between the grievor an d the co-workers who were complaining, such a
course of conduct could potentially be disastrous. It certainly ca nnot be said that this employer
was unreasonable in not following such a course. I have no basis to conclude that by meeting
with the grievor about complaints made against her, the employer was contributing to a poisoned
work environment. To the extent a poisoned e nvironment existed, the employer is not to be
blamed for it.
In summary, the evidence does not substantia te a bad faith, or even an unreasonable
exercise of its management rights.
Discrimination on the basis of religious belief
The allegation in these grievances is that the employer contravened article 3.1 of the
collective agreement by discriminating against the gr ievor on the basis of creed. That provision
reads:
3.1 There shall be no discriminatio n practiced by reason of race,
ancestry, place of origin, colour, ethn ic origin, citizenship, creed, sex,
sexual orientation, age, ma rital status, family st atus, or handicap, as
defined in section 19(1) of the Ontario Human Rights Code (OHRC).
The violation is said to have occurred as a result of the verbal directions the grievor
received following the December 11, 2001 pen inci dent, and the letter of counsel issued in
August 23, 2002. The parties took extremely opposite vi ews of the extent of the direction given
to the grievor. The grievor and the union take the position that the gr ievor was placed under an
absolute prohibition against hand ing out pens with religious scri pture attached. The union points
out that such a prohibition was placed only on the grievor and that the employer permitted other
38
employees to engage in religi ous activity at work and in f act encouraged such activity by
managements? participated in those. The union goes even further to submit that the employer
itself engaged in religious activity and invitations at the work place. Thus the union submits that
the grievor was singled out for differential treatment.
The employer on the other hand takes the posi tion that there was no absolute prohibition
placed on the grievor. Instead the only directio n was that the grievor should be careful about
who she hands out the gifts to, because some may be offended by that. The employer also
submits that the grievor was not treated any differently relating to religious activity in the
workplace.
The grievor?s testimony in chie f with regard to the verb al direction was that Ms.
DesRoches told her that she could co ntinue to give pens as gifts, but not with scripture attached.
This evidence was not challenged during the cro ss-examination of the grievor. However, Ms.
DesRoches testified that her direction was to the e ffect that ?she had to be extremely careful who
she hands these gifts to because some may be offended.? When employer counsel asked ?Did
you advise her she was not allowe d to hand out the pens at all??, Ms. DesRoches replied ?No. I
said be careful who you hand out these pens to.?
Evidence was tendered about th e letter of counsel dated August 23, 2002, which directed
the grievor ?to refrain from any religious based c onversations/invitations with in this workplace.?
The grievor testified that the direction was clear to her, that any religious conversations or
invitations were not allowed. Sh e therefore saw no need to seek clarification. Ms. DesRoches
testified that she was of the opinion that by ha nding gifts with tags c ontaining scripture, the
grievor was engaging in a form of preaching and attempting to convert the recipients to her
39
religion. She saw the grievors invi tation to Mr. Norris as ?her way of getting people to come to
her church?. Mr. Norris similarly was of the vi ew that by inviting him to hear the speaker, she
was attempting to attract him to her church. Sh e attempted to convince Mr. Norris to attend by
asserting that he stood to gain by attending her church. Ms. DesRoches testified that with regard
to religious invitations also, the direction she made in the letter of counsel wa s to the effect that
she should be careful who sh e extended invitations to.
Under cross-examination Ms. DesRoches testified that upon receiving the complaint
about the grievor handing out pens with scripture, she sought a dvice from the Human Resources
Consultant, Mr. Kevin Smith. His advice, according to Ms. DesRoc hes, was that ?the complaint
had to be dealt with and that the handing out of the pens needed to be stopped? in view of the
decision reached through the Local Employee Re lations Committee. Ms. DesRoches stated
under cross-examination that 99 percent of th e time managers heed the advice of Human
Resources Consultants. When asked why she mere ly directed the grievor ?to be careful?, when
the advice she received was that the handing out of the pens should be st opped, she replied that
she did not see any harm in the grievor handing out such gifts to her friends. She said that she
followed the advice ?with a slight softening of the message?.
On the basis of the evidence I conclude that the direction conveyed to the grievor on
December 11, 2001 and the direction reasonably unders tood by the grievor was to the effect that
at the workplace she was no longer allowed to handout pens with scripture attached. That is
more consistent with the totality of the evidence. Ms. DesRoches believed that the grievor was
engaging in preaching and converting by handing out scripture. Preaching and converting would
be directly contrary to the policy of neutrally jointly endorsed by the union and employer
through the LERC process. Ms. DesRoches? own testimony was that 99.9% of the time she
40
followed the expert advice of the Human Resources Consultants. The evidence is clear that the
Human Resources Consultant?s clear advice to Ms. DesRoches in this instant was that the
grievor?s handing out of pens with attached scripture must be stopped. To direct the grievor that
she could continue to hand out the pens provided she is careful who she hands them to, is not a
?slight softening? but a significant deviation from that advice. I fi nd that the direction verbally
th
issued to the grievor on December 13
2001 was to the effect that she could no longer handout
pens with scripture attached as gifts at the workplace.
The grievance relating to the verbal direc tion against handing out the pens was filed on
February 2002. Subsequently on August 23, 2002, the letter of counsel was issued directing the
grievor ?to refrain from any religi ous based conversations/invitations?.
In chief, Ms. DesRoches was asked what she intended by the direc tion in the letter of
counsel. She replied, ?To refrain from handing out scripture, making religious based invitations.
That in her conversations she shoul d be careful, especially in the l unch room.? She testified that
the direction was repeatedly explained to the grievor subsequently. During her testimony, Ms.
DesRoches stated that on October 15, 2002 she r ealized for the first time that by focusing on the
word ?any? in the letter of counsel, the grievo r was interpreting the di rection in a manner not
contemplated by her. The grievor had told Ms. DesRoches that she removed herself whenever
other employees were discussion anything to do with religion, fearing that by remaining she
would be in violation of the le tter. Ms. DesRoches testified th at she had not intended such a
direction. Employer counsel asked Ms. DesRoches whether she explained to the grievor to that
effect. Ms Desroches re plied that she did not, that she needed ?time out? to talk to some people
about how the grievor was interpreting the letter.
41
As with the verbal directi on about the pens, the evidence does not establish that the
employer took any steps to amend or qualify the cl ear direction in the lette r of counsel that the
grievor was ?to refrain?. Wh ile Ms. DesRoches may only have intended to direct that the
grievor be careful, that is not wh at the letter set out. She did not clearly conve y its real intention,
if indeed that was the case, even after she becam e aware of the grievor?s broad interpretation of
the written words.
Having said that, however, it must be immediat ely noted that I find on the evidence, that
the interpretation placed on the letter by the grievor was not genuine or sincere either. I find that
she adopted an unreasonable and even nonsensical definition of religion. I find further that the
grievor was very displeased about the directions she had received. I am satisfi ed that the grievor
used the letter to retaliate against the employer, particularly Ms. DesRoches.
That is the only conclusion I can reach in the face of the evidence. The grievor had felt,
and had explicitly verbalized that the employer?s di rection amounted to an attack on Christianity.
She had vowed to Ms. DesRoches that she ?would not allow Christ ianity to be slammed? and
that she would not let this matter drop. She had stated that she knew that by fighting this issue
she stood to lose her job, but that she was prepared for that. She sought no clarification of the
direction, but used the word ?any? in the letter to place an ex tremely broad interpretation and
embarked on a deliberate course of retaliation against th e employer. She did that in two ways.
Based on her interpretation of th e direction she received, the grievor refused to participate in
office activities on the grounds that her particip ation would result in he r flouting the employer?s
direction. Secondly, she constan tly complained to the employer about what she claimed were
instances of her co-workers enga ging in ?religious based conversat ions and invitations?. Some
of those have been described previously in this decision. To illustrate, she avoided going to the
42
lunchroom, she testified, because she was afraid that if other employees talked about religion
within earshot, she would be co ntravening the letter of counsel by having overheard that
conversation. If she heard two co-workers di scussing something which was religious according
to her own interpretation, she would tell them no t to do so within her hearing range because she
did not want to be in violation of the employer?s direction. She refused to attend office social
events in which managers also participated, su ch as Christmas and Halloween lunches. She
testified based on her research that Halloween was a religious event. She testified that
Halloween was 100 percent against Christianity and therefore contrary to her religious beliefs.
Here insincerity in this regard is obvious becau se the uncontradicted evidence is that for years
the grievor had par ticipated in office Hallow een events willingly. Among her complaints of
inconsistent treatment were the following: the em ployer allowed her co-workers to wear crosses
on a chain around their necks, or angel pins on their lapels and one employee was allowed to
have a screen saver depicting serene scenery with mountains and meadows. The grievor testified
about objectionable ?religious based conversati ons? that were tolerated in the workplace.
Among the examples she cited were: a co-worker w ho arrived late for a meeting explained that
her daughter was doing a school proj ect on religions and that sh e had some running around to do
to help the daughter make a Jewish cake; and on another occasion a co-worker told her that one
of the clients had taken up scientology. In the grievor?s view the use of the words ?religious?
and ?Jewish cake? in the one case, and the use of the word ?scientology? in the other, made those
?religious based conversations? of the t ype she was directed to refrain from.
I find that the grievor us ed the employer?s direction to her to get back at the employer. It
appears that her strategy had the desired effect. It was evident that the employer, Ms. DesRoches
specifically, was driven to the point of exasperati on having to deal with a deluge of complaints
from the grievor of alleged ?contradictions?. In fact, Ms. DesRoche s sought and received a
43
transfer out of that particular office. While the grievor did rais e petty issues as contradictions,
some of the other examples put forward by the union, may be reasona bly seen to be inconsistent
with the prohibition placed on the grievor, even ba sed on a more reasonable interpretation of that
prohibition. If in fact the grievor had been simply cautioned to be careful about who she engages
in religious based discussions an d invitations the situation woul d have been very different.
However, even though Ms. DesRoches may have subjectively intended to communicate such a
direction, for reasons I have set out, I have conclude d that that was not the direction issued. I do
find that some of the activity that the employer to lerated in the workplace, and some in which the
employer was a participant and even initiator, may well be inconsistent with the direction issued
to the grievor. I will not, however, deal with such examples in any detail or make definitive
findings, because a finding that the grievor wa s subjected to differential treatment does not
determine the grievance. The grievances can su cceed only if such differe ntial treatment was on
the basis of a protected ground, i.e. the grievor?s ?r eligion?, which both parties agreed is part of
the phrase ?creed? contained in the colle ctive agreement and the Human Rights Code.
On a careful review of the evidence, the subm issions of counsel and the legal authorities
cited, I have concluded that the union has failed to establish that the grievor was subjected to
discrimination on the basis of her religious beliefs. As far as the grievance dated February 7,
2002, relates to the pen incident, my conclusion was that in response to the complaint from a co-
worker, the employer directed the grievor that sh e was no longer permitted to hand out that type
of religious gifts. Such a prohibition agains t handing out gifts of a re ligious nature at the
workplace, in my view, does not constitute di scrimination on basis of religion or creed.
th
In Re Hendrickson Spring (2005) 142 L.A.C. (4) 159 (Haefling), the arbitrator
discussed the extent to which religious freedoms and practices are protected under the Ontario
44
Human Rights Code
and the Canadian Charte r of Rights and Freedoms. In so doing, he
discussed a significant deci sion of the Supreme Court of Canada as follows:
The recent case of Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551, 241
th
D.L.R. (4) 1, 2004 SCC 47 (Can LII0, a decision of the Supreme Court of Canada,
contains a useful discussion of what ma y be considered as the boundaries that
separate the religious and s ecular or civil spheres. In that case, the Court was
confronted with a religious issue c oncerning a prohibition by a condominium
corporation that forbade several unit owne rs of the Orthodox Jewish faith from
setting up on their balconies a small, tent-like structure (?succah?), to be used as a
temporary dwelling as part of a form of re ligious observance associated with what is
called the Festival of Tabernacles. In reading the decision that the condominium
corporation?s prohibition breached the appellant s? rights of religious freedom, Justice
Iacobucci wrote for the majority of the Court (as outlined below) and in so doing
endeavored to define and explain what is meant by ?religion? and, thus, what it is
that is protected by the principle of freedom of religion (at para. 39):
In order to define religious freedom, we must first ask ourselves what we
mean by ?religion?. While it is pe rhaps not possible to define religion
precisely, some outer definition is usef ul since only belief s, convictions and
practices rooted in religion, as opposed to those that are secular, socially
based or conscientiously held are protected by th e [Charter] guarantee of
freedom of religion. Defined broadly, re ligion typically invo lves a particular
and comprehensive system of faith a nd worship. Religio n also tends to
involve the belief in a divi ne, superhuman or control ling power. In essence,
religion is about freely and deeply he ld personal convictions or beliefs
connected to an individual?s spiritual faith and integrally linked to one?s self-
definition and spiritual fulfillment, the practices of which allow individuals to
foster a connection with the divine or with the subject or object of that
spiritual faith.
While the decision of the majority in Amselem recognizes a distinction between
religious and civil or secular matters, that approach was given even stronger voice by
Justice Bastarache who wrote as follows in th e minority judgment in the same case (at
para. 135):
? this Court has interprete d freedom of religion as protecting both religious
beliefs, which are considered to be hi ghly personal and private in nature, and
consequent religious practices. However, a religion is a system of beliefs and
practices based on certain religious precepts. A nexus between personal beliefs and
the religion?s precepts must therefore be established. ? Religious precepts
constitute a body of objectively identifiabl e data that permit a distinction to be
made between genuine religious beliefs a nd personal choices or practices that are
unrelated to freedom of conscience. Connecting freedom of religion to precepts
provides a basis for establishing objectivel y where the fundamental right in issue
has been violated. By identifying with a religion, an individual makes it known
that he or she shares a number of precepts with other followers of the religion. The
approach I have adopted here requires not only a personal belief or the adoption of
45
a religious practice that is supported by a personal belief, but also a genuine
connection between the belief and the pers on?s religion. In my view, the only way
the trial judge can establish that a person has a sincere belief, or has sincerely
adopted a religious practice that is genuinely connected with the religion he or she
claims to follow, is by applying an objective test. It is one thing to assert that a
practice is protected even though certain fo llowers of the religion do not think that
the practice is included among the religion?s precepts and quite another to assert
that a practice must be protected when none of the followers think it is included
among those precepts. If, pursuant to s. 3*, a practice must be connected with the
religion, the connection must be objectivel y identifiable. *Charter of Human
Rights and Freedoms, R.S.Q., c. C-12.
Lastly, to return to the judgment of th e Court majority, the Supreme Court of
Canada in the passage below from Amsele m appears to confirm that the individual
character of religious experience is what free dom of religion named in the Charter aims at
protecting (at para. 47):
? this freedom encompasses objective as well as personal notions of religious
belief, ?obligation,? precept, ?commandment,? custom or ritual. It is the religious
or spiritual essence of an action, not a ny mandatory or perceived-as-mandatory
nature of its observance, that attracts pr otection. An inquiry into the mandatory
nature of an alleged religious practice is not only inappropriate, it is plagued with
difficulties.
Applying the principles in the Amselem Case to the evidence before him, at p. 170 the
arbitrator observed:
The motivation for those community service activities and practices in the grievor?s
case no doubt originates from his own deep ly held personal re ligious beliefs.
However, as the Amselem case earlier referred to clearly serves to indicate, it is only
actual religious exercises and practices th at are part of relig ious observance and
worship that are to be deemed to be protected.
The principles and reasoning of the Supreme Court of Canada appl y in interpreting the
instant collective agreement and the Human Rights Code of Ontario. The grievance of February
7, 2002 stems directly from the direction that the grievor was directed that she was not to hand
out pens with scripture attached. The union?s pos ition was that the denial of that right was a
direct discrimination, i.e. a prohibition imposed only on the grievor. The union pointed to
instances of tolerance of religious activity by others as evidence of differential treatment.
46
However, the difficulty with the grievance is that the right the grievor wa s denied, the right to
hand out religious based gifts at the work place, is not one protec ted by the prohibition against
discrimination on the basis of religion. Union counsel submitted that the grievor had extremely
deep religious convic tions that she could not separate her religious beliefs from any aspect of her
day to day life. That may well be so. Ther efore, she may have been devastated by the
employer?s direction. However, while the ability to hand out religious gifts may be considered
extremely important by the grievo r, there is no evidence whatsoev er that such ability forms any
part of her religion of a Born ag ain Christian, or of any other religion. The ri ght to hand out
religious gifts to co-workers in the workplace is not rooted in any religious belief or practice.
Therefore, I conclude that by de nying that right, the employer di d not discriminate against the
grievor on the basis of religion or creed.
The same considerations apply with regard to the direction ?to refrain from any religious
based conversations/invitations? within the workplace in the letter of counsel. I will not embark
on an analysis of which of the numerous situ ations fell within or outside the scope of a
reasonable interpretation of the direction contained in the letter. That is not necessary in light of
the finding I make that regardless of the true extent of the direction, the activity prohibited by the
letter was not ?protected?. See, the authorities Re Amselem and Re Henrickson Spring. The
right to make religious gifts, make religious invitations or engage co-workers in religious
conversations in the workplace is not part of th e grievor?s religion. It is, based on the evidence,
nothing more than a deeply held personal desire by the grievor that she should have those rights.
However sincere and deeply held those desires may be, and regard less of the extent of upset
caused by the denial of those rights, such denial does not constitute discrimination on the basis of
creed or religion.
47
In summary, I conclude that the verb al direction on December 13, 2001 nor the
directions contained in the letters of counsel resulted in discrimination on the basis of a
prohibited ground. Therefore, no violation of arti cle 3.1 of the collective agreement or of the
Human Rights Code
has been established. I further find that the employer?s exercise of its
management rights were undertaken in good faith to deal with issues that arose at the workplace
and no violation of the collective agreement is su bstantiated. Finally, I ha ve concluded that the
two letters were not disciplina ry. Therefore, the Board has no jurisdiction to embark on an
inquiry into just cause.
For all of the foregoing reasons, both grievances fail and are hereby dismissed.
th
Dated this 10
day of October, 2006 at Toronto, Ontario.
Nimal Dissanayake
Vice-Chairperson