HomeMy WebLinkAbout2017-0709.Poblete.19-02-26 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# 2017-0709; 2017-2307; 2017-2308
UNION# 2017-0555-0006; 2017-0555-0013; 2017-0555-0014
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Poblete) Union
- and -
The Crown in Right of Ontario
(Ministry of Government and Consumer Services) Employer
BEFORE
Bram Herlich
Arbitrator
FOR THE UNION
Mae J. Nam
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Benjamin Parry
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING November 30, 2018
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DECISION
[1] The employer has raised two preliminary issues, moving that the three
grievances before me ought all to be dismissed.
[2] The first grievance, dated April 24, 2017, contests the process and results
associated with 3 different job competitions. These competitions pre-date the grievance
by approximately one year, three years and five years, respectively. The second
grievance, dated October 3, 2017, is one (fairly) described by the employer as “generic”
– it makes no reference to any specific events. Its companion grievance, however, (also
dated October 3, 2017) raises issues similar to the first in respect of two other job
competitions. These latter two competitions occurred roughly four and one-half years in
one case and five and one-half years in the other prior to the filing of the grievance.
Thus, it is in relation to the five identified job competitions that the grievor’s claims
crystalize.
[3] At the risk of some over-simplification, the union’s grievances are comprised of
two primary elements. First, in what might be described as more conventional job
posting issues, the union challenges the propriety of the process and results associated
with (at least some) of the job competitions in question. This aspect of the case was not
the subject of the first motion brought by the employer – suffice it to say that the
employer, unlike in relation to the second primary element of the grievances, did not
assert that the union has failed to establish a prima facie case. In the second element of
the grievances the union asserts that, in denying the grievor the positions he had sought
through the various competitions, the employer has discriminated against the grievor on
the basis of any or all of the following prohibited grounds: race, age, and national origin.
In respect of this latter claim, the employer asks me to find that the union’s factual
allegations, even if accepted as true and provable, fail to establish any case for the
employer to meet regarding the alleged discrimination.
[4] In addition to the foregoing, the employer also argued that all of the grievances
were untimely and that there are no reasonable grounds for me to exercise my
discretion to extend time limits under the collective agreement.
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[5] A brief comment on the strategic manner in which the employer chose to order its
motions will be useful. Without unnecessarily surveying the jurisprudence, it is fair to
say that this Board (and other arbitrators) have exhibited some flexibility in relation to
the strict application of time limits or the adducing of evidence regarding events which
significantly pre-date the filing of a grievance in cases where an ongoing pattern of
improper discrimination or harassment is alleged. For example, in OPSEU (Lunan) and
Ministry of Labour, GSB Nos. 2013-0513 et al, May 15, 2015 (Leighton), this Board
confirmed a guideline that permits a grievor alleging an ongoing pattern of harassment
and discrimination to adduce evidence covering a period of three years prior to the filing
of the grievance (it is a guideline, not a rigid rule – each case is to be considered on its
particular facts). It is clear, however, that the consideration of time limits or the adducing
of evidence regarding what might otherwise be stale events may be very different in a
case alleging ongoing discrimination as compared to, say, a more conventional job
posting case.
[6] Thus, the employer first advanced its claim that the grievances, as particularized,
fail to establish a prima facie case of discrimination on the basis of any of the
enumerated prohibited grounds. Then, assuming its success on that motion, the
employer proceeded to deal with its timeliness objection, not in relation to the
discrimination claim, but merely in relation to what I have described (for purposes of
explication) as more conventional job posting grievances. I will deal with the employer’s
two motions in the order they were presented.
No prima facie case of prohibited discrimination
[7] As the employer’s motion accepts the facts pleaded by the union as true and
provable (for the purposes of the motion), it is useful to consider the union’s pleadings
insofar as they relate directly to any issue of alleged discrimination. In so doing, the
frailty of the union’s case becomes readily apparent. The pleadings comprise 68
paragraphs of factual assertions. They relate primarily to the conduct of the
competitions at issue. In that regard they are not readily distinguishable from the type of
pleadings one might expect in a job competition case. As far as any claim of improper
discrimination, the first two paragraphs read as follows:
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Conrado Poblete (the “Grievor”) has been an employee with the OPS since
July 5, 2005. He is 67 years of age.
The Grievor is a racialized individual. He immigrated from the Philippines to
Canada on July 27, 1977.
[8] In addition to the above selection, the pleadings also assert that some or all of
the successful candidates in the impugned competitions were under the age of 60. This
is the sum total of the pleadings as they relate directly to any possible ground of
asserted prohibited discrimination. I note that the grievor’s status as a racialized
individual and immigrant was not the subject of any further scrutiny in the particulars.
Indeed, it was common ground between the parties that the vast majority, if not all, of
the successful applicants in the various job competitions were themselves racialized
individuals.
[9] The parties’ positions on the first employer motion – that the pleadings fail to
disclose a prima facie case of improper discrimination – are not complex.
[10] The employer relied on the three-part test that has been articulated to outline the
factors necessary to establish a prima facie case of improper discrimination:
(a) [The grievor] is a member of a group protected by the Code;
(b) [The grievor] was subjected to adverse treatment; and
(c) [The grievor’s] gender, race, colour or ancestry was a factor in the
alleged adverse treatment
[11] This test was cited with approval by the Court of Appeal in Peel Law Association
and Melissa Firth v Selwyn Peters and Brian Noble 2013 ONCA 396 (CanLII) at para.
56 and has been cited in decisions of this Board – see, for example, OPSEU
(Bonneveld) and Ministry of Community Safety and Correctional Services GSB #2010-
1747, December 18, 2013 (Briggs); and OPSEU (Morgan) and Ministry of Children and
Youth Services GSB #2012-1700 et. al, May 7, 2014 (Tims).
[12] The employer conceded that the first branch of the test had been met. It was not
quite as generous in granting any similar concession in relation to the second and third.
A question was raised as to whether the lack of success in a job competition might
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properly be described as adverse treatment where there was no question that the
grievor had and had exercised his right to participate in the competitions. But the
employer did, nonetheless, not seriously dispute that the second element of the test had
been satisfied. The employer’s primary focus was on the third branch of the test.
[13] I was urged not to infer a prima facie case simply on the basis of speculation,
simply on the basis of the grievor’s belief or opinion about the nature of his treatment
and the connection between it and his race, age or ancestry. Mere membership in a
protected class is not/should not be sufficient to establish any connection between that
membership and the adverse treatment complained of. There must be some objective
facts disclosed or alleged in the particulars to meet the requirement of a connection
between the adverse treatment and the membership in a protected group. Thus, for
example, in Bonneveld, supra, the Board rejected the union’s submission that the
grievor’s age (he was 69 years old, “significantly older” than the other employees he
alleged were receiving preferential treatment regarding scheduling of shifts) was, in and
of itself, sufficient to ground a claim of improper discrimination even if there had been
any adverse treatment.
[14] The employer, while accepting the first two branches of the test have been
established, vigorously contested that there is anything that can be pointed to in the
pleadings (beyond membership in a protected group) which supports the conclusion
that there is any connection between that membership and the adverse treatment.
[15] The union began its submissions by providing context for the grievances and the
claims of improper discrimination. In a cogent and forceful presentation, counsel asked
that I take notice of the difficulties racialized immigrants, particularly professional and
older immigrants, face in advancing their careers in Canada. The pleadings do assert
that the grievor has extensive experience in accounting and financial services. He was a
Chartered Public accountant in the Philippines. He has been in the OPS since February
2003 and since 2006 has been employed as a Reconciliation Representative in the
Bank Reconciliation Unit for the Ministry of Government and Consumer Services.
Despite his service and qualifications, he has been unsuccessful in the five job postings
which are the subject of the grievances before me.
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[16] While it did not dispute the currency of the three-part test earlier outlined, the
union placed a different gloss on its submissions. It relied on a number of decisions of
this Board.
[17] In OPSEU (Pinazza) and The Crown in Right of Ontario (Ministry of Community
Safety and Correctional Services) and Mark Keating (Third Party), GSB 2002-0840 etc.,
August 9, 2004 (Herlich), the Board dismissed a no prima facie case motion brought by
the third party. That case involved allegations of sexual harassment and sought
remedies that would impact the third party, the alleged perpetrator. The latter sought
and was granted status to participate in the proceedings. In arriving at its decision to
dismiss the motion, the Board observed (at p. 6 et seq):
The union argues that the asserted facts and all of the relevant events detailed
therein amount to sexual harassment. The employer conceded that, at least
some of the events adverted to do or might well be found to amount to sexual
harassment. Mr. Keating asserts that none of the events as described in the
union’s asserted facts can possibly give rise to any conclusion that the impugned
conduct amounts to sexual harassment.
I am not persuaded that it is impossible to arrive at the conclusion that (at least
some of) Mr. Keating’s conduct amounted to sexual harassment and I must,
therefore, decline to allow his motion that these grievances be dismissed on that
basis.
For the sake of clarity, I will repeat what I have and have not decided. I have not
decided that any or all of Mr. Keating’s conduct does or does not amount to
sexual harassment – and to put the matter somewhat colloquially – perhaps all
that I have decided is that the union’s case (again, based on its pleadings) Is not
so weak as would cause me to dismiss it at this stage.
[emphasis in the original]
[18] The union submits that the approach in this case was followed in OPSEU
(Greenbank et al.) and Ministry of Finance, GSB 2003-2771, July 12, 2005 (Mikus) and
that a comparable approach was adopted in OPSEU (Evangelista et al) and Ministry of
the Attorney General, GSB 2009-1091 etc., June 13, 2011 (Harris).
[19] I have considered the submissions of the parties and, for the reasons which
follow, I am persuaded that the employer’s motion must succeed.
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[20] I begin with the authorities relied upon by the union. The principal such authority
is the Pinazza case. There are numerous reasons why this case must be distinguished
from the one now before me. First, the case involved allegations of sexual harassment,
not improper discrimination in relation to job postings. Second, while the pleadings were
not reproduced, it is clear from the award that specific “events” had been particularized
which the union (at least) argued could be described as sexual harassment. In our case,
no comparable “events” are particularized – all we have is the grievor’s lack of success
in the job postings and his membership in a protected class(es) but nothing further to tie
those together so as to suggest improper discrimination. Third, there was no dispute
between the collective bargaining parties in Pinazza that the allegations (or at least
some of them) could support a finding of sexual harassment. It was the third party that
chose, unsuccessfully, to argue differently. (Indeed, the very unusual circumstances
which included third party participation provide perhaps another basis upon which to
distinguish the case.) Fourth, to the extent the Board engaged in ruminations on the
“possibility” of conclusions, it was responding directly to the submissions of the third
party. The latter, as the above excerpt discloses, had chosen to argue that none of the
events in question could possibly support a conclusion that sexual harassment had
occurred. The Board simply rejected that submission. And finally, the Board had neither
the opportunity (the authorities cited in the Peel Law Association case appear to
suggest the test was formulated long after the Pinazza decision issued) nor need to
consider the three-part test.
[21] And neither do the other two cases pointed to by the union assist it in this branch
of its argument. In Greenbank, this issue was little more than an afterthought following
the disposition of other issues. After clearly concluding that the case was not one in
which “the Union had failed to provide particulars that could establish their allegations”,
the Board, with little discussion, cited limited portions of the comments in Pinazza set
out earlier. It is clear, however, that the particulars included a description of events
which could be characterized as instances of threat or intimidation. Moreover, while
there was a passing reference to the Human Rights Code in the grievance, it is clear
from the award that this was, in essence, a health and safety case (raising issues
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related, among others, to the relative jurisdiction of this Board and the Ontario Labour
Relations Board in health and safety matters).
[22] Finally, in Evangelista, the Board dealt with a no prima facie case motion brought
against the case as a whole. The alleged discrimination in the case was but one part of
the total claim. The Board dismissed the motion and expressed its view that the
employer was inappropriately asking the Board to weigh the quality of the union’s
evidence on a preliminary basis, something it was not prepared to do. (There is some
helpful discussion in the Peel case (at para 63 and following) which highlights the
difference between prima facie case considerations in preliminary motions and ultimate
burden of proof issues where evidence is heard.) In our case, I am not asked to weigh
the quality of the union’s potential evidence. There is no such potential evidence for me
to assess. All we have are the undisputed facts (for the purposes of this motion), i.e.
membership in a protected class(es) and adverse treatment. There is no potential
evidence disclosed in the pleadings that links the two.
[23] The union’s submissions raise what may be described as something of a
conundrum in some efforts at reconciling legal analysis with broader concerns of social
policy. I am satisfied, however, that its pleadings in this case do not support a case to
be litigated.
[24] In that regard, I am mindful of the manner in which this conundrum has been
dealt with in some of the cases pointed to by the employer. In OPSEU (Morgan) and
Ministry of Children and Youth Services, GSB 2012-1700 etc., May 7, 2014 (Tims) the
Board observed (at para. 39):
The Union’s particulars here, including for present purposes those relating to
alleged post-grievance conduct, similarly fail in my view to demonstrate that the
grievor’s gender, race, colour or ancestry was a factor in any adverse treatment
she experienced.
In so concluding, I have considered the Union’s argument that discrimination on
the basis of race or gender may be subtle in nature, and that there may be no
overt conduct which can be relied upon to substantiate such a claim. I accept this
to be true. This was noted by the Board in Ministry of the Environment (Dobroff),
supra, [[2008] O.G.S.B.A. No. 73 (Dissanayake)] a case in which anti-union
animus was in part alleged. The Board there stated as follows:
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I agree that an admission or a “smoking gun” would rarely be found in
anti-union animus cases or cases of discrimination on the basis of a
prohibited ground. Thus, in appropriate circumstances, anti-union
animus may be inferred from circumstantial evidence. However, as
Vice-Chair Gray observed in Re Damani 1581/95; 1703/98, proof is
nevertheless necessary. Anti-union animus will not be inferred merely
because a grievor believes that it exists.
At para 17-18, Mr. Gray wrote:
(17) I accept as a general matter that racism “is out there,” as the
grievor put it at one point. I agree with union counsel’s submission
that racism often is latent, in the sense that those whose conduct is
influenced by racist attitudes may not openly acknowledge it ... The
presence and the effect of racist attitudes may be difficult to detect
and prove. It does not follow, and the union does not suggest, that
proof is therefore unnecessary, or that the mere allegation of racial
discrimination shifts the burden of disproving the allegation to those
accused of it.
[25] A similar observation is found in the Human Rights Tribunal of Ontario case
Preddie v St. Elizabeth Health Care, 2011 HRTO 2098 at para. 25 (cited in Lavoué v
Crown in Right of Ontario (Ministry of Natural Resources and Forestry) 2018 HRTO
1646 at para 27):
(…) discrimination … can be subtle and hard to detect, but an applicant must
provide some reasonable basis for making allegations of such discrimination. It is
not sufficient to claim discrimination as a member of a group protected under the
Code and to look to a hearing process before the Tribunal as the means to
discover whether such discrimination occurred; there must be some reasonable
prospect that evidence the applicant has or that is reasonably available to her
can show a link between the events alleged and the alleged prohibited ground.
[26] In cases of alleged discrimination that proceed to hearing, the employer, once
the union’s evidence is in, will decide whether, in its view, that evidence has been
sufficient to warrant some evidentiary explanation on its part. If so, the employer may
opt to tender such evidence. However, if it is of the view that the evidence does not
require any explanation, the employer may, in the hope that the adjudicator shares that
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view, move for a non-suit. And given the propensity at this Board to not put the mover of
a non-suit to its election, the employer, if it fails in the non-suit motion may then have to
make the legal and strategic decision as to what evidence, if any, to call. At the
conclusion of such cases, there may well be room for appeals to inference based on the
evidence tendered.
[27] But the current matter involves a no prima facie case motion and a consequent
determination as to whether the matter ought even to proceed to hearing. In my view
and barring some pleaded facts, which, in and of themselves, may support a possible
inferential conclusion of improper motive, the presence of only two of the factors in the
three-pronged test will not be sufficient to warrant a hearing on the merits. In other
words, membership in a protected class does not confer on the individual an automatic
right to have any and every instance of alleged adverse treatment advanced to a
hearing on the basis of alleged discrimination. To echo some of the cases referred to,
there must be more than the grievor’s subjective belief or opinion to establish a prima
facie case of discrimination.
[28] Having regard to the foregoing, the employer’s motion to dismiss these
grievances, insofar as they allege improper discrimination, is hereby allowed and the
grievances are, to that extent, hereby dismissed.
Timeliness
[29] I turn now to a consideration of the employer’s objection to the timeliness of the
grievances. In essence, the employer asserts that all of the grievances are out of time.
The collective agreement provides that a grievance may be filed “within thirty (30) days
after the circumstances giving rise to the complaint have occurred or have come or
ought reasonably to have come to the attention of the employee”. The employer
contrasts this provision with predecessor provisions such as Article 27.2 of the 1992-
1993 collective agreement between the parties which required an employee to raise a
complaint “within twenty (20) days of first becoming aware of the complaint or
difference”. The current language, says the employer, provides a more objective test for
the determination of timeliness. The delay in filing the grievances in the instant case
ranges from roughly one to five and one-half years. The grievances are clearly out of
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time. And further, a review of the usual factors discloses no reasonable basis for any
discretionary extension of the time limits.
[30] The union first advances two separate bases to support its view that the
grievances (or at least some of them) are timely. The first basis advanced, however, is
premised upon the grievances disclosing an ongoing pattern of improper discrimination.
The grievances have now been dismissed to the extent they allege improper
discrimination. Thus, I need not further address this argument.
[31] The second basis upon which the union asserts that the grievance (dated April
24, 2017) regarding the more recent job competitions is timely is premised on the
asserted fact that on January 4, 2017, as part of a series of communications the grievor
had engaged in regarding his concerns about the competition process, he was advised
by a management representative that if he (the grievor) was unsatisfied with
management’s responses, he could exercise his rights under Article 22 (Grievance
Procedure) of the collective agreement. This, it is asserted, was the first time the grievor
was aware of this right. Thus, the union asserts, the window for the timely filing of the
grievance did not open until then. Of course, even if this argument were to be accepted,
the grievance was not filed for some four months beyond that date. The union claims,
however, that there are good and sufficient reasons (including the grievor’s absence
from work for some three weeks as well as his ongoing efforts to engage in discussions
with the employer during that period) for the delay.
[32] In my view, even had the grievance been filed on January 4, 2017 it would have
been out of time by some seven months. And whatever may have transpired between
January 4, 2017 and the filing of the grievance on April 24, 2017 cannot have rendered
the grievance any more timely.
[33] The union’s claim that the timeliness clock in relation to events which crystallized
on May 31, 2016 (when the grievor was advised that he had not succeeded in the
competition), did not begin to run until January 4 of the following year is untenable. This
is roughly akin to asserting that any bargaining unit employee (or at least those similarly
situated to the grievor) has, perhaps by virtue of their ignorance, an indefinite ongoing
inchoate right to file a grievance regarding events that may be years old. And further,
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that the window for filing such a grievance does not even open until the employee first
learns or is possibly advised by the employer that s/he has a right to file a grievance.
[34] In this regard, I am in agreement with the employer, even assuming that the
collective agreement does not provide an exclusively objective approach to the
timeliness of filing a grievance. The collective agreement ties the timeliness of a
grievance to the “circumstances giving rise to the complaint” not to a grievor’s
knowledge about labour relations in general, the existence of a trade union and its
function or, more importantly, the specific provisions of and rights under the collective
agreement. Any such lack of knowledge cannot be visited upon the employer by
requiring the processing of grievances to arbitration years beyond the circumstances
which gave rise to them.
[35] I am satisfied that the grievances before me are untimely.
Should the time limits be extended
[36] This brings me, finally, to the question of whether I ought to exercise my
discretion to relieve against the collective agreement time limits. Arbitrators have a
legislative discretion to relieve against grievance procedure time limits “where the
arbitrator or arbitration board is satisfied that there are reasonable grounds for the
extension and that the opposite party will not be substantially prejudiced by the
extension”.
[37] The context for the exercise of such discretion and the factors to be considered
in that regard have been well established. This was not the subject of controversy
between the parties. The factors and their origin are set out in OPSEU (Stone) and The
Ontario Clean Water Agency, GSB No. 1111/99, March 19, 2001 (Johnston) at p. 8:
The parties agree that I have the jurisdiction to extend the time limits in this case
pursuant to section 48 (16) of the Act, but disagree on whether or not I should do so.
They also agree that the two key cases outlining the factors to be taken into
[consideration] by an arbitrator in deciding whether or not to exercise the discretion to
extend the time limits are Becker Milk Company and Teamsters Union, Local 647
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(1978), 19 L.A.C. (2d) 217 (Burkett) … and Greater Niagara General Hospital and
O.N.A. (1981), 1 L.A.C. (3d) 1 (Schiff).
Arbitrator Burkett identified the following factors to be considered:
1. The reason for the delay given by the offending party.
2. The length of the delay.
3. The nature of the grievance.
This list was repeated and expanded upon by Arbitrator Schiff as follows:
1. The nature of the grievance.
2. Whether the delay occurred in initially launching the grievance or at
some later stage.
3. Whether the grievor was responsible for the delay.
4. The reasons for the delay
5. The length of the delay.
6. Whether the employer could reasonably have assumed the grievance
had been abandoned.
[38] In my view, a consideration of the enumerated factors does not favour the
exercise of my discretion to extend the time limits in this case.
[39] These are job posting grievances and while the interests at stake are by no
means trivial, they do not rise to the level of cases where job security is at stake (e.g.
discharge or surplus cases) and neither is this case one like the Stone case, supra
where, by virtue of the circumstances of that case, the job competition grievance had
significant job security implications. Thus, this factor is, at best, neutral.
[40] The delay in the instant case relates to the initial filing of the grievances, not a
delay in the course of the grievance procedure where the employer had been put on
notice of a dispute by the filing of a grievance. This factor weighs against the grievor.
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[41] There is no suggestion that anyone but the grievor is responsible for the delay.
This factor weighs against the grievor.
[42] The only factor which potentially weighs in the grievor’s favour relates to the
reasons proffered for the delay. This is, in some sense, a reprise of the argument
advanced and rejected as to when the grievance procedure clock begins to tick. The
union points to the grievor’s lack of knowledge of his legal rights and lack of
sophistication in labour relations matters as a sympathetic explanation for the delay in
filing the instant grievances. It highlights the comments of OLRB Vice-Chair
Surdykowski (as he then was) in William Gordon Switzer, [1999] OLRB Rep.
July/August 757 at para. 16, which question the propriety of legal assumptions of
citizens’ knowledge of the law and of imputing such knowledge to all. There are two
reasons, however, to distinguish this case. First, this is a decision of the OLRB in an
unfair representation case in which the individual employee was the applicant. Perhaps
more significantly, the Board in that case determined that a substantial part of the delay
in the case resulted from the conduct of the union, i.e. the responding party in the case.
If the delay in the instant case could somehow be laid at the feet of the employer, I too
might be reluctant to permit that delay to defeat the rights asserted. This factor, at best,
is but a very minor one in the grievor’s favour.
[43] The length of the delay is impressive, ranging from approximately one to five and
one-half years (depending upon the specific competition complained of). This factor
weighs against the grievor.
[44] The final factor is not applicable or perhaps merely duplicative in a case where
the delay precedes the filing of the grievance. In any event, there is nothing here to
assist the grievor’s case.
[46] Having regard to the foregoing (and without even broaching the question of
prejudice to the employer resulting from the delay), I am satisfied that there is no
reasonable basis for the exercise of my discretion to extend time limits in this case and I
decline to do so.
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[47] Having regard to all of the foregoing, the instant grievances must be and hereby
are dismissed.
Dated at Toronto, Ontario this 26th day of February, 2019.
“Bram Herlich”
______________________
Bram Herlich, Arbitrator