HomeMy WebLinkAboutMullins 19-05-131
IN THE MATTER OF AN ARBITRATION
BETWEEN:
SAULT COLLEGE
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (SUPPORT STAFF)
(the “Union”)
AND IN THE MATTER OF THE GRIEVANCE OF A. MULLINS
OPSEU # 2017-0612-0002
Louisa M. Davie Sole Arbitrator
Appearances
For the Union: Tim Hannigan, Counsel
For the College: Daniel Michaluk, Counsel
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Award
This grievance has been filed pursuant to the Support Staff collective agreement
between Sault College ("the Employer") and the Ontario Public Service Employees
Union ("the Union").
On August 10, 2017 Ms. A. Mullins ("the grievor") filed a grievance which alleges that
"I grieve the employer has allowed me to be bullied, harassed and discriminated
against by management and coworkers, as well as management failing to
accommodate me contrary to articles 4, 13 of the Collective Agreement, the
Ontario Human Rights Code, and any other article, act, or employment legislation
that may apply."
In filing the particulars of the grievance the Union refers to events and incidents which
occurred in July 2011.
The Employer has brought a preliminary motion with respect to the scope of the
grievance and the scope of the evidence which can be add uced in support of the
grievance. Simply put, the Employer maintains that the grievor should not be able to go
back six (6) years before the grievance was filed. This award deals with that preliminary
motion.
The relevant facts to determine the preliminary motion must be ascertained from the
particulars. Those state that the grievor was initially hired on a contract basis in
November 2008. She assumed her permanent full-time position in the Financial
Services Department in March 2011.
The particulars allege that in the summer and fall of 2011 the grievor experienced a
series of incidents revolving around the conduct of an ergonomic assessment and the
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provision of an ergonomic chair. The grievor alleges these incidents were the start of a
pattern of bullying and intimidating conduct on the part of her supervisor. The grievor
asserts that throughout this time, and indeed until she filed the grievance in August
2017, she was singled out because of her disability and her need for accommodation.
In March 2012 an ergonomic assessment was done. Thereafter, and with the exception
of a discrete incident involving a lost/found file in June 2013 there is a period of calm.
For the next fifteen (15) months there are no other particulars or events alleged in
support of the grievance.
The grievor was on sick leave from July 15, 2013 to September 15, 2013.
The particulars refer to events, incidents and circumstances in the fall of 2013 until
November 2014 which the grievor asserts continued the pattern of harassing, bullying
and intimidating behavior towards her because of her disability and need for
accommodation. The events, incidents circumstances include not only issues relating to
her chair and the ergonomic assessment, but also issues relating to the grievor's
workload, work direction by her supervisor, a performance appraisal and issues around
problems and concerns the grievor raised about accounting methods and procedures
within the Department. The grievor maintains that the Employer failed to address her
concerns and failed to take matters seriously. With respect to this latter circumstance
the grievor asserts that the Employer's treatment and its conduct towards her in
response to her raising concerns about improper methods or procedures within the
Department caused the grievor added stress and anxiety as, for example, her Manager
angrily told her "you are delusional" when she raied her concerns.
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It is to be noted that at various points in time between September 2013 and November
2014 the grievor was assisted and represented by her local Union representative at
meetings that she had with her Employer. A grievance was not filed during this
timeframe.
In or about July 2014 the Union's Regional Staff Representative contacted the Employer
indicating that he was assisting the grievor "… with a few concerns [the grievor] has
brought forward regarding harassment towards her by her supervisors." Tendered in
evidence were emails which indicate an investigation into the grievor's concerns was
undertaken by the Employer in the September 2014 to November 2014 timeframe. That
investigation culminated in a meeting on or about November 10, 2014. That meeting
was attended by the grievor, the Union's Regional Staff Representative, the Union's
Local President and members of the Employer's management staff. At that meeting the
Employer advised that following its investigation the grievor's complaint was being
dismissed. During this time a grievance about these matters or the dismissal of her
complaint was not filed by the grievor.
On November 13, 2014 the grievor was given a Letter of Counsel. The particulars
assert this Letter of Counsel was "frivolous".
On November 13, 2014 the grievor went on sick leave. She was in receipt of short-term
disability benefits until March 2015. She did not return to work until January 2017.
The particulars assert that the grievor attempted to return to work in May 2015 but that
the Employer "refused to accommodate the grievor's mental disability and the return to
work was unsuccessful." During this time frame there was a WSIB claim and an appeal
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both of which were dismissed. The grievor did not file a grievance regarding a failure to
accommodate her return to work.
During the grievor's absence from November 2014 to January 2017 th e supervisory
structure in the Department was changed. Upon her return to work in January 2017
therefore the grievor's supervisor was not that same person whom she asserts exhibited
intimidating, bullying and harassing behavior towards her in the 2011 to 2014
timeframe.
The particulars filed refer to a number of events, circumstances and incidents following
the grievor's January 2017 return to work which the grievor maintains continued the
Employer's harassing, bullying and intimidating behavior towards her. The Employer
concedes that the grievance filed in August 2017 captures the timeframe from January
2017 when the grievor returned to work so I need not set out in detail the particulars of
the events during the January 2017 to August 2017 timeframe. In highly abbreviated
format I note only that the grievor claims she continued to have issues with her need for
accommodation and an ergonomic chair. The grievor's particulars assert also that her
workload and her interactions with the Employer's supervisory and management staff,
as well as her interactions with colleagues, caused her anxiety and stress as the
Employer continued to ignore her concerns about practices in the workplace and
continued its bullying and intimidating behavior towards her.
The grievor has not been at work since July 28, 2017. The particulars assert that the
medical evidence discloses that she is totally disabled. She has appealed the denial of
long-term disability benefits. Although the issue of entitlement to long-term disability
benefits is not before me, the opening statement of counsel indicate that the grievor
feels strongly that the Employer's conduct and actions are significant factors
contributing to her current absence from work. The grievor takes the position that if she
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had not been bullied and harassed, and if she had been accommodated, she would not
have been off work for such an extended period of time. The remedial relief claimed
therefore includes lost income and benefits while the grievor has been absent from
work.
It is within this factual context that I turn to address the submissions of the parties.
The Employer's Submissions
Employer counsel submitted that my jurisdiction to deal with this harassment grievance
was limited to the events and circumstances which occurred after the grievor's return to
work in January 2017. Employer counsel acknowledged that this type of harassment
grievance involves repeated conduct, or a pattern of behavior, so that the grievor must
be given some leeway to go back over a period of time to establish the pattern or the
"course of conduct." However, it was the Employer's position that in the circumstances
of this case I did not have jurisdiction to entertain allegations or complaints which date
back some six (6) years before the grievance was filed.
In the alternative Employer counsel submitted that I should limit the evidence to a
reasonable period of time prior to the filing of the grievance. In this case that
"reasonable period of time" commenced in January 2017. The allegations and
particulars before that date were stale, especially when viewed in context of both a
significant hiatus in time between allegations, and the changed circumstances which
existed when the grievor returned to work in January 2017, and filed her grievance in
August 2017.
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Employer counsel relied upon specific articles of the collective agreement to argue that
the parties to this collective agreement have expressly turned their minds to the issue of
time limits and the need for expedition in dealing with workplace disputes. Article
18.3.1.1 of the collective agreement imposes a mandatory 15 day time limit for filing a
grievance. Article 18.2.1 deems a grievance to be abandoned if the grievor fails to act
within the time limits for initiating a complaint or filing a grievance. Article 18.4.4
expressly provides that an arbitrator can't exercise discretion to relieve against the time
limits of the collective agreement.
Viewed in context of these collective agreement provisions the particulars and facts of
this case indicate that there were specific points in time at which the events complained
about had crystallized and the grievor should have grieved , but didn't.
Moreover, there were two significant periods of time after the claims crystallized which
interrupted the pattern or course of conduct upon which the grievor relies to support this
harassment grievance. First, there was a hiatus of approximately fifteen (15) months,
from March 2012 to June 2013, during which there are no particulars or allegations of
harassment or bullying behavior. To the extent the grievor complained about incidents
which occurred from July 2011 to March 2012 as a pattern of conduct which violated the
bullying and harassment provisions of the collective agreement or the Human Rights
Code, this fifteen (15) month hiatus interrupted that pattern of conduct. In these
circumstances the grievor could not grieve conduct which she asserts is harassment
when that conduct occurred years earlier and her claim had crystallized years earlier.
She should have complained and filed a grievance about the July 2011 to March 2012
conduct in or about that time. A 2017 grievance which refers to that conduct is untimely
and well beyond any reasonable period of time to establish a "course of conduct" given
a lengthy fifteen (15) month hiatus between incidents.
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The grievor's particulars also allege a second period of time during which she claims a
course of harassing, bullying and imitating behavior towards her. That timeframe was
from June 2013 to November 2014. It is evident from the particulars that during this time
the grievor was being assisted by the Union. This second period of time was also
followed by another lengthy hiatus of twenty-six (26) months (November 13, 2014 to
January 16, 2017) during which there are no fu rther complaints or allegations of
harassment by the grievor. Given this lengthy hiatus it was too late now for the grievor
to file a grievance about the harassment she claims occurred from June 2013 to
November 2014.
From the Employer's perspective it was equally significant that when the grievor
returned to work in January 2017 there had been a change in the work environment a nd
management structure of the department in which the grievor worked. It was submitted
that although harassment grievances may deal with a course of conduct, these types of
grievances are meant to deal with current circumstances in the workplace. Harassment
grievances are predicated on current events and circumstances and deal with an
existing workplace and work environment which needs to be changed or remedied. (In
this case for example the grievor's request for remedial relief includes a request for a
cease-and-desist order and to be placed in a different department.) The Employer
argued that given the twenty-six (26) month hiatus, and the changed circumstances in
the work environment to which the grievor returned in January 2017 , it was too late for
the grievor to complain in August 2017 about events which took place in the June 2013
to November 2014 timeframe. The grievor should have filed her grievance then. Her
grievance about these events years later was untimely and I was without jurisdiction to
deal with those stale allegations.
In the alternative the Employer submitted that I should approach its objection from an
evidentiary perspective and determine that evidence with respect to events that
occurred three to six years before the grievance was filed was not relevant or
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admissible. In developing this argument Employer counsel relied principally upon a
series of cases at the Grievance Settlement Board ("GSB") which has developed a rule
of thumb which recognizes a three-year period prior to the filing of the grievance as a
fair cut-off point for the scope of the evidence. In so doing the GSB has sought to
balance the interests of the Union and the grievor to refer to a sufficient timeframe to
establish a pattern, with the Employer's right to defend itself against old allegations.
In making this submission Employer counsel again relied upon the significant hiatus
periods and the changed circumstances upon the grievor's return to work in January
2017. Employer counsel noted that the three-year rule of thumb is particularly apt
where changed circumstances indicate that no labour relations purpose would be
served by litigating dated allegations. Employer counsel relied upon Renfrew County
and District Health Unit and OPSEU (Correia), [2013] O.L.A.A. No. 342, 116 C. L.
A.S. 110, Hotel-Dieu Grace Hospital v ONA (1997) 62 L.A.C. (4th) 164, University
Health Network v. OPSEU [2008] 92 C. L. A.S. 248, OPSEU and Ontario (Ministry
of Natural Resources and Forestry) (Fletcher grievance), (2018) 137 C. L. A. S. 74,
Ontario (Ministry of Community Safety and Correctional Services) and OPSEU
(Dubuc grievance), (2016) 129 C. L. A.S. 98, OPSEU and Ontario (Ministry of
Community Safety and Correctional Services) (Calder grievance),(2017) 133
C. L. A. S. 53.
The Union's Submissions
The Union emphasized that harassment grievances of this nature are not concerned
merely with what happened fifteen (15) days before the grievance was filed.
Harassment grievances involve a series of incidents which establish a pattern of
conduct which, in this case, has had a significant impact on the grievor.
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It was asserted that the particulars established history and context. Evidence of
repeated conduct on the part of the Employer's supervisors also enabled the Union to
deal with motivation and intent. In this regard it was argued that evidence which detailed
a history or context allowed the Union to establish that an event or incident was not
merely an isolated or inadvertent circumstance, but a deliberate course of harassing,
intimidating and bullying conduct. The history was important to establish the context so
that circumstances were not viewed in a vacuum.
In this case the particulars which outlined the context or history include similar
complaints and allegations. The same things that the grievor complained about in the
November 2011 to June 2013 timeframe are the things she complained about in the
July 2013 to November 2014 timeframe, and about which she continues to complain
following her return to work in January 2017. Issues with respect to her need to be
accommodated, her need for an ergonomic chair, belittling comments made by the
same supervisor in which the supervisor asserts that the grievor was not truthful or was
delusional spanned the entire history and provided context. The commonality of the
particulars was an important factor to consider in determining the admissibility of the
evidence.
Union counsel asserted that it was important to look at the history of the conduct and
behavior upon which the grievor relies to found her harassment claim. Even if a specific
remedy with respect to events and incidents which occurred in the 2011 to 2014
timeframe was not available to the grievor because of the length of time which had
elapsed, these events and incidents provided context and supported her claim of the
serious adverse effects which the Employer's conduct has had on her.
Finally, Union counsel submitted that the three-year rule was not a rigid, inflexible rule
to be mechanically applied in all cases. Rather it was a guideline. The jurisprudence
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established that each case should be decided on its own facts. In this case there were
unique circumstances which justified a departure from the three-year rule of thumb. Not
only was there commonality in the particulars over the six-year period of time, but the
grievor was absent from the workplace for much of the timeframe which would be
encompassed by a rigid application of the three-year rule.
The grievor was off from November 2014 until her return to work in Januar y 2017. Prior
to going off to due to illness in 2014 the grievor complained about the Employer's
conduct and behavior towards her. Following her return to work in January 2017 the
grievor raised the very same issues she had raised before she went off sick. The
twenty-six (26) month hiatus to which the Employer points was not a hiatus during which
there were no issues of harassment, discrimination or bullying behavior. It was a hiatus
caused by the grievor's absence from the workplace. Absence from the workplace due
to illness is not the type of hiatus which the cases have decided is material to the issue
of whether there has been a pattern of behavior which contravenes the collective
agreement or the Human Rights Code. A hiatus caused by the grievor's absence from
the workplace due to illness should not be determinative of the issue of the scope of the
evidence to be a admitted in this case.
Counsel also argued that the Employer would not suffer any prejudice in the
presentation of its case or in its ability to defend against the allegations. There is
nothing to indicate witnesses are not available or documentary evidence no longer
exists.
The Union relied upon OPSEU and Ontario (Ministry of Public Safety and Security)
(Patterson grievance) unreported decision of arbitrator Leighton dated December 1,
2003, OPSEU and Ontario (Ministry of Community Safety and Correctional
Services) (O'Brien grievance) [2011] 104 C. L. A.S. 303, OPSEU and Ontario
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(Ministry of Labour) (Lunan grievance) unreported decision of arbitrator Leighton
datedMay 15, 2015 and George Brown College of Applied Arts and Technology
and OPSEU (Lee grievance), [2016] 128 C. L. A. S. 260
Decision
In rendering this award I adopt the approach enunciated in the cases relied upon by
both counsel to determine the scope of the grievance and the evidence which can be
adduced. That approach requires that I strike a balance between gi ving the Union and
the grievor a fair opportunity to provide context and history which establish a pattern of
conduct, with the Employer's right to defend itself with evidence which has not been
diminished by the passage of time and the effect that may have on the ability of
witnesses' recollections.
In my view, when striking the balance, an arbitrator should also keep in mind the time
honored principle of labour relations that grievances about alleged violations of the
collective agreement should be brought within a reasonable time after the matter in
issue arose (see General Electric Company and United Electrical, Radio and
Machine Workers 3 L. A. C. 980 (Laskin)). I accept Union counsel's submissions that
the issue of delay in filing a grievance can be addressed through fashioning appropriate
remedial relief, and that admission of evidence of incidents that date back many years
for contextual purposes does not mean that remedial relief will be granted for such
incidents. However, it is my view that a delay in filing harassment grievances results not
only in prejudice in conducting a fair hearing (which is what most of the cited awards
seem to focus on). Delay also impacts the ability of the parties to properly address, in a
timely fashion, issues and concerns as they arise. That circumstance affects ongoing
relations between and amongst the Employer, the grievor and the Union. As Professor
Laskin put it so eloquently in General Electric supra, the proper administration of a
collective agreement requires "...mutual recognition by the parties of a principle of
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repose as to all claims under the Agreement not asserted within a reasonable time."
There is real danger to present relations by permitting a grievance to drag up ghosts
from the past when the Employer is either unaware of the matters of concern at the time
they arise (and therefore unable to address them) or where the Employer believes the
concerns have been addressed and the matter concluded. In the circumstances of this
case this latter aspect has been a factor in my decision to limit the scope of the
grievance and the scope of evidence to events, circumstances and incidents which
postdate the November 10, 2014 meeting attended by the Employer, the grievor and
her Union representatives.
The November 10, 2014 meeting followed the Employer's investigation of the grievor's
concerns. The documents tendered in evidence indicate that those concerns included
the grievor's concerns about harassment by her supervisor. At the time of these events
the grievor was being represented by both her local Union representatives (the local
President and Union steward) and the Union's Regional Staff Representative. At the
November 10, 2014 meeting the Employer communicated its decision that its
investigation caused it to dismiss the grievor's complaints and concerns. When a
grievance was not filed following that meeting, or in and around that time, the Employer
could reasonably conclude that matters had been brought to a close. To permit the
grievor to raise those matters again, nearly three (3) years later, would not fairly balance
the respective interests of the parties.
I am not persuaded that the fact that the grievor went off on sick leave shortly after this
meeting is sufficient reason to permit the grievor to go back and rehash events,
incidents and circumstances that go back many years before the grievance was filed.
There is no evidence before me, neither medical evidence or any other evidence, that
during this time the grievor was incapacitated and unable to file a grievance or instruct
the Union to file a grievance on her behalf.
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In the circumstances of this case therefore, after balancing the respective interests of
the parties, I have determined to allow the Employer's objection and will limit the events
and incidents which can be the subject of evidence to those which occurred after
November 10, 2014. I find that to be the only arguably relevant evidence of the context
or history to establish a pattern of conduct necessary in this type of harassment
complaint.
Obviously, any evidence tendered will be subject to the usual rules concerning
relevance and admissibility.
I note also that one of the particulars filed which postdates November 10, 2014
references the grievor's unsuccessful attempts to return to work in 2015 and alleges a
refusal to accommodate a disability. I note that a grievance with respect to an alleged
failure to accommodate her return to work was not filed in 2015 . My ruling with respect
to the grievance and the scope of evidence therefore is also without prejudice to the
Employer's right to rely upon the fact that a timely grievance alleging a failure to
accommodate was not filed in the event the grievor is successful on the merits of her
grievance and remedial relief is claimed for that time frame.
Dated at Mississauga this 13th day of May, 2019
Louisa Davie
Louisa M. Davie