HomeMy WebLinkAbout2017-1413.Cooper.19-06-07 Decision
Crown Employees Grievance Settlement
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Commission de
règlement des griefs
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GSB#2017-1413
UNION# 2017-0584-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Cooper) Union
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The Crown in Right of Ontario
(Ontario Clean Water Agency) Employer
BEFORE Ian Anderson Arbitrator
FOR THE UNION Allison Vanek
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Felix Lau
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING May 2, 2019 (by teleconference)
SUBMISSIONS Written Submissions completed by May 31, 2019
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Decision
[1] By decision dated April 15, 2019, I invited further submissions on certain matters:
17. Because of the process adopted in this case, I am able to assess the
relevance of the particulars which the Employer seeks to strike by reference to
what would be in essence the Union’s entire case in chief were those particulars
permitted to stay. Having carefully reviewed the Union’s particulars and the
Grievor’s declaration, it is not apparent to me how the events which pre-date
2017 would be relevant to proving the events which post date 2017 constitute
harassment. The earlier events relate to very different issues, not
accommodation. Further, there is no overlap between those involved in the
accommodation process and those involved in the earlier incidents.
18. By contrast, the events during the period February 2017 to March 2019 all
relate to the accommodation process. To the extent the Grievor asserts the
Employer’s actions during this period constituted a subtle form of harassment
arising from a course of conduct, the period is of sufficient length for the Union to
attempt to prove its case.
19. The Employer, however, did not object to all particulars which pre-dated
February 2017. Rather it objected to all particulars which pre-dated the
grievance by more than three years. The Union, therefore, has not had an
opportunity to make submissions with respect to the relevance of particulars with
respect to the events from October 2014 to February 2017. Accordingly, prior to
deciding whether to strike those particulars, the Union shall have the opportunity
to make such further submissions as it may wish to make. Any such
submissions shall be filed in writing no later than May 24, 2019. The Employer
shall have until May 31, 2019 to file any submissions in reply.
[2] A conference call was held on May 2, 2019 in relation to this matter, and the
parties filed submissions in accordance with the direction in the decision dated
April 15, 2019.
[3] The Union’s submissions state in material part:
8. While the Union recognizes that this Board has broad statutory discretion
regarding the admissibility of evidence in this proceeding, the Union submits
that in the instant case, the incidents described in the Union's Particulars from
the period of July 31, 2014 to February 2017 are indeed relevant to
demonstrating that the incidents in the Union's Particulars post-February 2017
constitute harassment of the Grievor, and it is therefore appropriate to allow the
Union to call evidence to support these facts.
9. In general, many of the incidents detailed in the time between July 31, 2014
and February 2017 demonstrate the failure of OCWA management to take the
Grievor's medical needs and requests seriously, and properly accommodate
the restrictions identified by his doctors and imposed by his disability. This can
be observed in several ways.
10. For example, although the Grievor submitted a medical note by Dr.
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Michael West on June 2, 2014, restricting him from working on night shifts, it is
the Grievor's evidence, as described in his Declaration, that he continued to be
placed on night shifts even after this. His very last shift at work, on October 24,
2014, was a 12- hour overnight shift, in defiance of Dr. West's explicit order.
11. Additionally, when the Grievor complained to members of OCWA
management regarding his suspicions that other employees were
deliberately putting nails in the tires of his car, his concerns were brushed off
and no action was taken.
12. Furthermore, during his initial attempt to return to work, the Grievor's
principle restriction due to his disability was his inability to continue to work
within OCWA. All his medical from 2017 and onwards points to this restriction.
The only accommodation proposed by the Employer, on November 7, 2017, did
not take into this restriction into account and specifically contemplated a gradual
return to work plan that would eventually put the Grievor back in the workplace
that his disability restricted him from entering.
13. However, while off on sick leave, the Grievor made numerous attempts to
try to find work outside of OCWA, applying for various positions with other
employers, including an application in February 2016 to the City of Hamilton
and another in March 2015 to the Region of Niagara, both of which are
identified in the Union's Particulars. But many of his attempts to find work
outside of OCWA were thwarted by OCWA management providing negative
references.
14. These thwarted attempts to find work outside of OCWA between 2014 and
2017 are relevant to the Grievor's attempt to be accommodated by his
Employer when he attempted to return to work in 2017. They demonstrate the
sincerity and desperation in the Grievor's desire to work outside of OCWA,
away from the people that were harassing him and the workplace that his
Employer had allowed to become toxic. And they demonstrate how his
Employer continuously blocked his ability to do so.
[4] Paragraph 9 of the Union’s submissions refers to the failure of “OCWA
management” to take the Grievor’s needs and requests seriously. Paragraph 10
gives an example. Paragraph 11 refers to complaints to “members of OCWA
management”.
[5] In my view, allegations of harassment must be specific. If regard is had to Mr.
Cooper’s Declaration, the only member of management referred to in events
which both pre-date and post-date the accommodation process is Tony Puim.
References to Mr. Puim during the accommodation process are found at
paragraphs 327, 337 and 399 of Mr. Cooper’s declaration, set out in their entirety
in Appendix A to this decision. None of those references allege any act on the
part of Mr. Puim, let alone an act which might be considered part of a course of
conduct amounting to harassment. Mr. Puim’s conduct prior to February, 2017 is
therefore irrelevant to the issue of whether the Grievor experienced harassment
during the accommodation process.
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[6] Paragraph 12 of the Union’s submissions refers to the nature of the Grievor’s
disability. This is clearly relevant to the accommodation process. It does not,
however, make the source of that disability relevant to the accommodation
process. As stated at para 14 of the April 15, 2019 decision:
14. The Union argues that they are relevant to understanding why
the Grievor was off on sick leave in the first place. The Grievor
would not have needed to be accommodated but for the Employer’s
failure to provide a safe workplace free from harassment. I do not
accept this argument. The Employer’s duty to accommodate arises
from the existence of a disability at the time the accommodation
request is being considered, not the reason for that disability.
[7] Paragraph 13 of the Union’s submissions refers to the Grievor’s attempts to find
employment outside the OCWA. In paragraph 14, the Union argues this
demonstrates the “sincerity and desperation” of the Grievor’s desire to work
elsewhere and that it demonstrates “how his Employer continuously blocked his
ability to do so.”
[8] At this point, it appears to me that the Grievor’s sincerity and desperation are at
best collateral to any issue in these proceedings and in any event do not appear
to be in dispute. With respect to the allegation that “his Employer” continuously
blocked the Grievor in these efforts, my comments at paragraph 5 above are
applicable.
[9] For all of the foregoing reasons, and those stated in the April 15, 2019 decision,
the allegations in the Union’s representations and paragraphs in the Grievor’s
Declaration with respect to events which predate the attempts to accommodate
the Grievor commencing in 2017, are struck.
Dated at Toronto, Ontario this 7th day of June, 2019.
“Ian Anderson”
_____________________
Ian Anderson, Arbitrator
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Appendix A
327. I received an email from Manulife stating the following: "This email is in
response to you from the date of March 31, 2017. I have spoken with your
Human Resources Department for the Ontario Clean Water Agency. They
have advised that they have spoken to your Manager named Tony Puim and
have begun the process of looking at getting you into a different location."
337. May 6th, 2017 I received teleconference meeting request from Sharmilla
Setaram included are Tony Puim, Sabrina Dubeau, Gary Mansfield, and
myself.
[Exhibit 22
Teleconference Invitation, May 6, 2017]
399. November 8th, 2017 from OWWOC to James Hello James,
Upon review of your request to renew your Class 4 Water Treatment,
Water Distribution & Supply and Water Quality Analyst certificates, we
regret to inform you that your applications cannot be processed at this
time because we are missing signature of authorized representative under
"Part F - Operating Experience Verification."
Please have Tony Puim sign the attached page and resubmit it to our office
as soon as possible, so we can process your request.
If you have any questions/concerns, do not hesitate to let me know.
Regards,
Jonathan Loureiro, Certification Administrator [Exhibit 52 - Email from
OWWOC, November 8, 2017]