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HomeMy WebLinkAbout2013-1169.Ranger.18-04-11 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2013-1169; 2013-1170 UNION# 2013-0424-0002; 2013-0424-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ranger) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Daniel Harris Arbitrator FOR THE UNION Craig Flood Koskie Minsky LLP Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING March 1, 2018 -2- DECISION [1] This decision deals with two evidentiary matters. [2] First, a fact in issue from the outset of these proceedings was an interaction between the grievor and a co-worker, Catherine McLaren. The relationship between Ms. McLaren and the grievor was raised in the Union’s particulars set out in a letter dated January 30, 2014 as follows: Failure to Address issues with Catherine McLaren From the time he commenced working in his current position, until the time that Ms. McLaren transferred to a different work location, Mr. Ranger was subjected to Ms. McLaren’s on-going harassment and attempts to undermine him in the workplace. In particular Mr. (sic) McLaren had taken it upon herself to act as Mr. Ranger’s supervisor and to “correct” his work at every opportunity. She would “correct” his work openly and publicly making sure that not only co-workers but clients could hear her comments regarding his work. Mr. Ranger made it clear to her that these comments were not welcome, however Ms. McLaren persisting in offering her unsolicited “corrections”. As he was entitled – and expected – to do, Mr. Ranger complained to his Manager, then Ms. Grenon, about Ms. McLaren’s behaviour. As has happened in the past at the Ottawa Carlton Detention Centre, no action was taken by the Employer in response to Mr. Ranger’s complaints. Due to the Employer’s failure to act, Mr. Ranger in response to the constant bullying and harassment to which he was subjected raised his voice to Ms. McLaren. The stress related to the incident and the subsequent attempts to bring about workplace restoration resulted in Mr. Ranger being required to take a medical leave of absence from August 30, 2011 through to early December 2011. In response to the incident, and without regard to its own failings, and the inappropriate behaviour of Ms. McLaren, the Employer issued a letter of counsel to Mr. Ranger for acting in an unprofessional manner. Despite being the victim, Mr. Ranger was singled out by the Employer for disciplinary action. [3] The Employer sought further particulars in correspondence dated January 30, 2014. That request is framed as follows: -3- On page 3 allegations are made with respect to an alleged failure to address issues with Catherine McLaren. Specifically it is alleged that “Mr. Ranger was subjected to Ms. McLaren’s on-going harassment and attempts to undermine him in the workplace.” Reference is made to Ms. McLaren “correcting” his work. Please provide particulars regarding these events, including when these events are alleged to have occurred, what was said and in whose presence. Please also provide particulars as to the grounds on which this is alleged to be ”harassment.” In this same section it is alleged that Mr. Ranger complained to his then manager about Mr. (sic) McLaren’s behaviour. Please provide me with all arguably relevant documents relating to these incidents and complaints. [4] By letter dated November 26, 2014 the Union provided further particulars relating to the relationship between Ms. McLaren and the grievor. The evidentiary issue dealt with in this decision relates to whether the Union may ask the grievor in his examination-in-chief about that relationship during the period when the grievor was first assigned to the Ottawa Centre Probation and Parole Office in 2005. The Employer objected on the basis that such evidence was too old. That is, it reaches back beyond the three year time period referred to in the Board’s jurisprudence. However, in response to the Employer’s request for further particulars set out above, the Union provided the following particulars relating to the earlier time period: Request #4 – Particulars of Harassment by Catherine McLaren In 2005 when Mr. Ranger was first assigned to work at P&P, he was initially trained to work as support staff, despite his titles of Rehabilitation Officer and Correctional Officer. At that time due to the harassment he had endured, Mr. Ranger was not capable of absorbing the material as he was having difficulties even functioning at work. Despite his condition, it was apparent to Mr. Ranger that the other staff generally disliked working the counter, while he enjoyed it – that aspect of the work allowed him to deal with the public. From March 2005 to October 2005, issues with Ms. McLaren may have been brought to the attention of Mr. Mike Lawless. … -4- [5] The remainder of those particulars relating to Ms. McLaren deal with the period after the grievor’s return to the Ottawa Centre Probation and Parole Office in 2011. The Employer makes no objection to evidence of that latter period. [6] In my interim decision dated May 7, 2015, I made the following comments at paragraph 11 relating to evidence regarding the incidents with Ms. McLaren post 2011: The Board has held as a general rule that evidence of harassment and/or discrimination may reach back approximately 3 years. This is in recognition of the fact that there may be a course of conduct that is not immediately recognized as harassment and/or discrimination. It is only in the fullness of time that otherwise apparently innocent actions can be seen as part of such a course of conduct. In the circumstances of this case, the allegations involving Catherine McLaren fall within the generally accepted three-year rule. [7] I went on to decide that consideration of any remedy for those incidents would be dealt with in final submissions. [8] In a subsequent decision dealing with a further objection by the Employer to the proper scope of the evidence I made the following comments, at paragraph 7, in a decision dated March 8, 2017: The grievances here were filed in June 2013. It is now three years since the grievances were first particularized. The employer now seeks, in mid-hearing, to prevent the calling of evidence relating to these events on the basis that they occurred after the filing of the grievances. These events are no surprise to me, and I fully expected that evidence would be called in relation to them. These events have been part of the narrative for all of this time. In my view, it is simply too late for the employer to object to the particulars provided on the basis that they occurred after the date of the grievance. Just as events stretching backwards in time from the filing the grievance might be relied upon to show a course of action that amounts to harassment and/or discrimination, certainly, in this case, the events, particularized as they were three years ago, may be explored with respect to where they fit into the narrative arc that the union seeks -5- to present. The weight to be attached to them may be argued at the close of the case. [9] In the circumstances dealt with in this decision, the Union says that the 2005 incidents also form part of the narrative arc. Further, it seeks no remedy with respect to the 2005 incidents. [10] The Union also noted that the grievor was disciplined for the 2011 incident. As part of its case the Employer relied upon a memorandum from the grievor’s then Area Manager, Jacqueline Grenon to the then Regional Director, Peter Lesperance. With respect to the two grievances before me, the grievor’s Area Manager, Don Billard, reviewed that memorandum in determining the appropriate discipline. That memorandum contains the following: “It should be mentioned that there is a history of personality issues and conflict between these two individuals…”. The Union submitted that its line of questioning is simply exploring that history, which was relied upon by the Employer in fashioning the discipline meted out in the matters before me. [11] In all of the circumstances set out above I find that the evidence is relevant and admissible. The weight to be given to it may be argued at the close of the case. I am mindful of the difficulty the Employer may have in dealing with such old allegations of fact. However, that too is a matter for closing argument. Further, I agree with the Employer’s submission here that the focus of the parties’ submissions which led to the March 8, 2017 evidentiary ruling were related to the 2011 incident involving Ms. McLaren. That is, the submissions and the ruling did -6- not deal with the 2005 incidents or the relationship then between the grievor and Ms. McLaren. This decision does and, for the reasons set out above, the Employer’s objection to the evidence is denied. [12] The second issue dealt with in this decision deals with circumstances that have resulted in a grievance after the time that Mr. Billard left the Ottawa Centre P&P Office to go to the Regional Office. Mr. Billard was not in the Ottawa Centre Office at the time of the events or the resulting grievance. An exclusion order has been made in these proceedings. The Employer submitted that the usual restrictions on putting the grievor’s evidence here to the managers involved there is problematic and out of the ordinary. Mr. McMahon, counsel for the Employer, seeks to be relieved from the strictures of the exclusion order. In the alternative, he submitted that he could change advisors or ask for particulars regarding the new grievance, which could properly be put to a potential witness. [13] The Union submitted that, for purposes of witness preparation in such circumstances it is possible to adequately prepare without disclosing to the witness being prepared the evidence put forward at the hearing. When they take the stand, it is open to examining counsel then to put the evidence to the witness. The union also submitted that the better course would be for the Employer to change advisors or ask for and receive particulars, with the latter being the better choice. -7- [14] In reply, Mr. McMahon reiterated that Mr. Billard would know nothing about the circumstances leading to the grievance. [15] I agree that there are three options open to the Employer. The first is to abide by the exclusion order in preparing witnesses by scrupulously avoiding reference to the evidence given in these matters. I have every confidence that Mr. McMahon could and most certainly would do so. Here he was proposing a relaxation of the strictures of the order as a practical and efficient approach. However, as is its right, the Union withheld its consent. The second approach would be to change his advisor to someone who has knowledge of the matters so that he can obtain meaningful instructions. Finally, he could ask for particulars of the Union’s allegations, which, as allegations of fact, he could put to any witness for their comments and as part of their preparation to defend the grievance. [16] Mr. McMahon is free to choose how he wishes to proceed. Dated at Toronto, Ontario this 11th day of April, 2018. “Daniel Harris” ___________________ Daniel Harris, Arbitrator