HomeMy WebLinkAboutGordon 18-09-10IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION,
LOCAL 529
-and-
TORONTO COMMUNITY HOUSING CORPORATION
Grievances of Janice Gordon 2012-0529-0003, -0004, -0005 and -0006
etc., remedy
Mary Ellen Cummings, Arbitrator
Appearances:
Donald Jarvis for the employer
Katherine Ferreira and Lauren Tarasuk for OPSEU
Award issued September 10, 2018 at Georgetown, Ontario
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AWARD
1. In a decision dated June 22, 2017, I dismissed 8 grievances that OPSEU had filed
on behalf of Janice Gordon, against her employer, the Toronto Community Housing
Corporation. I upheld one significant grievance. I found that the employer did not have
just cause to terminate the employment of Ms. Gordon. The parties had decided to
bifurcate the hearing. After I released the decision on the merits of all of the grievances,
we reconvened and I heard the parties’ submissions about what remedies should flow
from my determination that the employer did not have just cause to terminate Ms.
Gordon’s employment. I need to decide two issues:
1. Should Ms. Gordon be reinstated in her employment?
2. If Ms. Gordon is not reinstated in her employment, what compensation should
she be awarded?
Should Ms. Gordon be reinstated in her employment?
2. The employer takes the position that Ms. Gordon should not be reinstated. The
employer understands and accepts that it bears the onus of establishing the circumstances
to justify a remedy other than reinstatement. It submits that this case meets the tests set
out in De Havilland Inc. and Canadian Auto Workers Local 112, (1990) 83 L.A.C.(4th)
157 (Rayner). The union submits that the circumstances do not satisfy the tests set out in
De Havilland Inc. Moreover, in this case, where the employer has not come close to
establishing grounds for the grievor’s termination, declining to reinstate her in
employment would abrogate the principles of progressive discipline and set a dangerous
precedent for other employers to follow.
3. It is not practical for me to replicate the content of my 261-paragraph decision
dismissing 8 of the grievances and upholding only the grievance concerning the
termination of the grievor’s employment. But it is also important that this decision stand
on its own and justify the reasons why I have decided not to order that the grievor be
reinstated. My reasons are founded in the grievor’s conduct towards the employer and its
representatives, her attitude towards her accommodation as demonstrated by her past
behaviour, and her inability to see anything in her own conduct that has contributed to her
difficulties in employment. The employer suggested that I could have regard to the
findings of Arbitrator Nairn in the lengthy decision she wrote in respect of a number of
earlier grievances brought by Ms. Gordon. It is not necessary for me to look at that
material. The evidence in the 9 grievances I heard, which span the time period 2010 to
2012; my extensive opportunity to hear the grievor’s testimony and the lengthy hearing
process where I could observe the grievor’s behaviour and attitude have provided me
with enough information to make a decision.
4. The parties are generally agreed that in De Havilland Inc., Arbitrator Rayner set
out 5 criteria that have consistently been used by arbitrators to determine whether
compensation should be ordered instead of reinstatement. These criteria are intended to
measure whether the employment relationship is still viable. All of the criteria relate to
factors personal to a grievor that will affect the success of a reinstatement. At paragraph
5, Arbitrator Rayner wrote:
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The cases referred to cite several factors that are relevant to the decision to award compensation
in lieu of reinstatement. In no particular order those factors are:
1. The refusal of co-workers to work with the grievor.
2. Lack of trust between the grievor and the employer.
3. The inability or refusal of the grievor to accept responsibility for any wrongdoing.
4. The demeanour and attitude of the grievor at the hearing.
5. Animosity on the part of the grievor towards management or co -workers.
6. The risk of a “poisoned” atmosphere in the workplace.
5. In this case, there is no evidence of co-workers refusing to work with the grievor.
I am not concerned about creating a poisoned atmosphere if the grievor is returned.
6. However, the circumstances of this case satisfy all of the other factors outlined in
De Havilland Inc. Ms. Gordon’s demeanour and attitude at the hearing showed little
respect for the process or an appreciation of her need to cooperate in it. Ms. Gordon
arrived at the hearing 20 to 30 minutes late on a regular basis, without explanation or
apology. She sought to dictate the timing and frequency of breaks, again without
explanation. While others testified, she showed little interest, frequently tapping at her
phone and tablet, or eating snacks. I conclude that Ms. Gordon used these petty means to
exercise some control over the proceedings and ensure that she was the central figure in
it.
7. As my extensive reasons in the June 22, 2017 decision outline, Ms. Gordon does
not trust the employer or any of its representatives and has shown animosity towards
everyone from management who interacts with her, for no discernible reason. I do not
minimize the employer’s poor decision to terminate Ms. Gordon’s employment. But the
surrounding context, as demonstrated in the litigation around all of the other grievances,
shows that Ms. Gordon has no insight into how her own conduct contributed to her
unhappy employment situation. This pattern was particularly evident during the
employer’s efforts to accommodate her disability. Ms. Gordon consistently blamed others
for her difficulties at work and at no point in her evidence either accepted responsibility
or showed that she would bring a different approach to her managers if she was reinstated
in her employment.
8. At the start of this litigation, I had to determine the order of proceeding. The
union bore the onus in respect of 8 of the grievances and, of course, the employer bore
the onus in respect of the termination grievance. The eight grievances for which the union
bore the onus alleged that the employer had discriminated against the grievor on the basis
of race, origin and family status; had harassed the grievor; had failed to accommodate her
disability; had treated her differently because of her race; and had made reprisals against
her because she had complained about racial harassment and discrimination. The union
characterized her termination from employment as the culmination of the employer’s
pattern of harassment and discrimination. I decided that the union should proceed first to
call its evidence because “the primary or dominant issue in the case is one of human
rights and discrimination” (decision dated February 7, 2014).
9. In my decision of June 22, 2017, I dismissed all of the grievances alleging
discrimination, harassment, differential treatment and failure to accommodate and
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reprisal. In the course of my reasons, I concluded that Ms. Gordon was a difficult
employee. At paragraph 188, I wrote:
I have included a number of her emails in this award, not just to set out the facts, but to convey
the tone she used to express herself, and to document how often she made unsubstantiated
allegations of racism and differential treatment. Ms. Gordon’s emails use strong, loaded
language. In both her testimony and e-mails, she throws off allegations of torture, intentional
delay, justifying her tone as reflective of how she feels, as a victim. Yet, when the employer
made reasonable requests of Ms. Gordon, such as confirming attendance at a back to work
meeting, or providing references for jobs she wanted the employe r to consider [for her
accommodation], her responses were delayed, then insouciant.
10. In that award, I was also critical of the employer’s decision to terminate Ms.
Gordon’s employment for acts of insubordination, when Ms. Gordon had no disciplinary
record. I was very critical of the employer’s failure to apply progressive discipline. At
paragraph 191, I noted that no one had told Ms. Gordon that her communications were
inappropriate nor that allegations of racism and discrimination without supporting facts
were unacceptable. I also noted that these allegations were typically directed at members
of the human resources department and those who were dealing with her accommodation
process, that is, managers with the training and ability to warn Ms. Gordon, and then
discipline her if they found her conduct inappropriate. I concluded that the employer
could not simply act out of frustration when it got fed up after the acts of insubordination:
It is trite law that an employer cannot later rely on conduct it has tolerated, without censure, to
justify discipline. Conduct that has been condoned does not become misconduct deserving of
termination when the employer has finally reached the end of its tolerance.
11. Counsel for the union has justifiably focused on my criticisms of the employer’s
failure to apply progressive discipline in support of its assertion that I should order Ms.
Gordon’s reinstatement. Counsel for the union emphasized that compensation instead of
reinstatement should always be an exceptional remedy. In a case like this, where the
evidence does not come close to justifying a termination of employment, permitting the
employer to pay compensation instead of reinstating the employee, allows the employer
to “buy its way out” of managing what it perceives as a difficult employee. Union
counsel argued that such a result seriously undermines the progressive discipline regime
that is a fundamental foundation of the collective bargaining regime. We do not know
how Ms. Gordon would react to properly applied warnings and discipline, because the
employer never tried. The union submitted that permitting this employer to “buy its way
out” of managing Ms. Gordon’s performance and behaviour will encourage other
employers to bypass the time-consuming process of progressive discipline, resulting in
summary terminations whose arbitration hearings will focus on avoiding reinstatement as
a remedy, rather than in justifying the precipitous decision to terminate.
12. I share union counsel’s concern about the precedent created each time an
arbitrator orders compensation rather than reinstatement. In other cases, I have often felt
from the start that the employer’s real focus has been avoiding a grievor’s reinstatement,
not in justifying his or her discharge.
13. In Integra v. OPSEU Local 426, (2012), 215 L.A.C. (4th) 398, at paragraph 11, I
wrote that if the De Havilland Inc. factor considering a “lack of trust between the grievor
and the employer” was applied frequently, reinstatement would become a less common
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remedy because employers inevitable cite a lack of trust as a reason for choosing
termination over other disciplinary responses:
Typically, when an employer terminates an employee, it has considered t he alternatives, and
made what for it, is a final reasoned decision that the employee has engaged in conduct which
goes to the heart of the employment relationship. Participation in the grievance and arbitration
procedure, coupled with the inevitable passage of too much time, can cement the employer’s
view that the employment relationship cannot be rehabilitated because it has lost trust and
confidence in the grievor. An arbitration decision that finds termination of employment was not
justified will not necessarily or even likely alter the employer’s view. Put simply, I expect that
most employers would honestly and sincerely continue to believe that they could not repair their
relationship with the employee if he or she were reinstated. Placing emphasis on this factor
would regularly undermine the availability of reinstatement as a remedy.
14. While I continue to hold the view that compensation instead of reinstatement
should be the exception, I am wholly satisfied that this is one of those cases where
reinstatement should not be ordered. In considering what remedy is appropriate, my job is
to look at the events of the past, and the findings I have made, and use them to make my
best prediction of the future and choose a remedy that fits with that prediction.
15. The evidence established that Ms. Gordon was a difficult employee, who the
employer was reluctant to manage, with the result that no one told her that her emails,
and groundless accusations of racism and harassment were unacceptable. More
specifically, Ms. Gordon’s attitude during the accommodation process showed not only a
calculating desire to use the process to get a promotion for which she had no apparent
qualifications, but ended with her belittling her new job to her new manager. As I wrote
at paragraph 192, Ms. Gordon’s placement in the Clerk 3 position was “doomed to fail”
because of her attitude.
16. In the course of the hearing, I determined that the employer’s placement of the
grievor in the Clerk 3 position was an appropriate accommodation. If Ms. Gordon is
reinstated in employment, she will be placed in a Clerk 3 position. The union submitted
that I should not conclude that a future placement will be unsuccessful. But with respect,
nothing that occurred in the hearing convinces me that the future would be any different
from the past. Ms. Gordon does not want to work as a Clerk 3. She told the manager that
a kindergarten student could do the work and that she was taking the position under
duress. She continues to hold that view. Nothing has changed in her attitude and
approach.
17. I do not know why Ms. Gordon wants to return to TCHC, such is her negative
attitude to it and all of the managers who represent it and have interacted with her. The
union submitted that because many of the managers, human resources and disability
management people have left the employer since the time that the events leading to these
grievances occurred, Ms. Gordon would be working with different people. That is true,
but since I have not been able to discern any objective reason why she treated the former
managers, human resources and disability management personnel so badly, I am not
convinced that Ms. Gordon would treat their replacements any differently. Ms. Gordon
holds a deep animosity and distrust towards TCHC and anyone who acts on its behalf. In
those circumstances, there can be no basis to re-establish a viable employment
relationship.
What compensation should be awarded?
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18. The parties introduced a number of cases, showing that arbitrators have taken a
range of approaches, from replicating common law principles, through calculating how
long the employee was likely to stay employed, subject to deduction for many
contingencies (Hay River Health and Social Services Authority v. PSAC, 2010 Carswell
Nat (Sims)).
19. It appears that Ontario arbitrators have coalesced around “the modern approach”,
recognizing that compensation in lieu of reinstatement is intended to compensate an
employee for….
…the loss of benefits of union representation. These benefits include, but are not limited to, the
protections afforded by just cause provisions, the right to be reinstated if they are terminated
without just cause, job security protections, vacations and other benefits rooted in the concepts
of seniority and service. (Humber River Hospital and ONA (Cherubino), 2017 CanLII 83072
(Steinberg)
20. Arbitrators have typically calculated that compensation on the basis of one month,
1.25 month’s or 1.5 month’s pay for each year or part year of service. It seems that all
arbitrators then add 15% to the amount to compensate for the loss of benefits.
21. In this case, the employer agrees that 15% should be added for loss of benefits,
and submits that I should award 1 month per year and part year of service, subject to
mitigation.
22. The union submitted that if I am awarding compensation in lieu of benefits, which
it strongly resists, I should follow the approach in Humber River Hospital and ONA
(Cherubino) and order payment of 1.25 months per year of service, 15% benefits top up,
and apply no mitigation. In addition, again following Humber River Hospital and ONA
(Cherubino), the union asks me to add payment of termination and severance
entitlements pursuant to the Employment Standards Act 2000, S.O. 200. C. 41. The union
also asks me to add interest from the date of termination and to order the employer to pay
the costs Ms. Gordon incurred in borrowing money from the Ontario Student Assistance
Plan to re-educate herself for a different career after her employment was terminated.
23. There is always an element of discretion in choosing between a calculation based
on one month, 1.25 months or 1.5 months per year of service. I am choosing 1.25 months,
based on the grievor’s actual service, not rounded up. The employer will add 15% to that
amount to compensate for the loss of benefits.
24. I am not requiring a deduction for mitigation. In my view, because the
compensation ordered is intended to offset the loss of the benefits of working in a union
environment, including protection from unjust dismissal and benefits rooted in service
and seniority, a typical deduction for money earned in employment while waiting for the
arbitration to be resolved is not appropriate. Money that a terminated employee earns in
mitigation does not replace the benefit that compensation in lieu of reinstatement is
intended achieve.
25. For similar reasons, I am not ordering the employer to pay Ms. Gordon’s OSAP
costs.
26. I am not ordering that the employer pay the grievor termination and severance pay
under the Employment Standards Act, 2000. While I know that a number of arbitrators
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have included such amounts, with respect, I have not seen a compelling analysis for their
inclusion. Again, I am seeking to compensate the grievor for the loss of the benefit of
working in a unionized environment, not to add on concepts that come from statutory
protections intended to provide minimum employment benefits for those in workplaces
not protected by the advantages in a collective agreement that generally exceed minimum
statutory benefits.
27. I am not ordering that the employer pay interest. This case has taken a long time.
As always, my availability and that of counsel to both parties made scheduling a
challenge. But, unique to my experience as an arbitrator, the grievor’s availability was a
more significant challenge and certainly contributed to the length of time it took for this
matter to be heard.
28. In summary, in lieu of reinstating the grievor, I order the employer to pay, based
on the wage rate Ms. Gordon earned at the time of her termination from employment:
1. 1.25 months of pay for each of her 6.83 years of service.
2. 15% on top of that sum to compensate for the loss of benefits
29. The employer will make lawful deductions and remittances. The employer will
comply with any lawful requests by the grievor to disburse the money with minimal tax
consequences, so long as Ms. Gordon provides the appropriate forms within 10 calendar
days of being advised by the employer of its proposed pay-out.
30. The employer will pay the amounts set out above within 60 calendar days of this
award.
31. I remain seized to deal with any issues arising out of the implementation of this
award.
Signed at Georgetown Ontario, this 10th day of September, 2018
Mary Ellen Cummings