HomeMy WebLinkAbout2016-2440.Grievor.19-07-16 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# 2016-2440; 2016-2442; 2016-2443; 2016-2850; 2017-1794; 2017-3718
UNION# 2017-0368-0001; 2017-0368-0003; 2017-0368-0004; 2017-0368-0020;
2017-0368-0385; 2018-0368-0011
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Grievor) Union
- and -
The Crown in Right of Ontario
(Ministry of Health) Employer
BEFORE
Ian Anderson
Arbitrator
FOR THE UNION
Ed Holmes
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Regina Wong
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING June 21, 2019
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INTERIM DECISION
[1] On the agreement of the parties, and without prejudice to the position of the
Employer with respect to any future decision in this or any other matter, the name
of the Grievor is omitted from this decision and its style of cause.
[2] The Grievor has filed a number of grievances. On the request of the Employer,
the Union provided particulars. The Employer brings this preliminary motion to
have some of the Union’s particulars struck and to have some of the grievances
dismissed for want of a prima facie case. This decision determines that motion.
Striking of Particulars
[3] The Employer seeks to strike particulars on two bases. The first is that of
“grievance procedure privilege”. Specifically, the Employer seeks to have
paragraph 54 of the Union’s particulars struck on this basis.
[4] Paragraph 54 forms part of the Union’s particulars in relation to Grievance No.
2017-0368-0001 (hereafter, “Grievance 0001”). For the purposes of this motion,
it suffices to note Grievance 0001 alleges the Employer’s decision to award a
particular acting assignment to another employee, Reid, was discriminatory.
Paragraph 51 of the Union’s particulars alleges the Grievor was told the acting
assignment was awarded to Reid on the basis of seniority. Paragraph 54 reads:
On March 21, 2017 a Stage 2 meeting was held [with respect to Grievance 0001],
attended by the Grievor and Union. At that meeting the Employer changed its
position and advised that the Acting assignment was not awarded by Seniority but
rather based on date of hire. However, either way the Grievor was senior to Reid
as he and Reid were hired on the same date and in such circumstances it is the
practice / policy to proceed alphabetically and G. comes before R. The Grievor’s
date of hire is therefore before Reid’s. Mr. Fisher was simply making things up in
an attempt to justify keeping the Grievor out of the assignment. The real reason
was discrimination based on disability and a refusal to accommodate which later
became abundantly clear.
[5] Grievance procedure privilege refers to the exclusion of evidence of statements
made during the grievance procedure relating to the subject matter of the
grievance, not limited to offers of settlement. The reason for this “privilege” was
well articulated by Arbitrator Pamela Picher in Re Regional Municipality of
Ottawa-Carleton and CUPE Loc. 503, (1984) 14 LAC (3d) 445 at p. 448:
The purpose of the privilege surrounding statements made during the grievance
procedure is to foster an environment in which the parties may freely discuss the
grievance at hand with a view to settling it. In our opinion, however, the free
discussion that should be promoted within the grievance procedure requires that
the privilege extend beyond offers of settlement or statements specifically related
to the possible settlement of the issue. Without limiting our view of the full scope
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of the privilege, we conclude that, ordinarily, it should extend at least, to any
statements that generally relate to the subject-matter of the grievance.
[6] The Union accepts that such a privilege applies, but argues there are other
exceptions. It relies upon North America Mining Ltd. v. IUOE, Local 955
(Dowhaniuk), 2014 CarswellAlta 1339, [2014] AWLD 3654, [2014] AWLD 3655,
[2104] AGAA No. 39, 120 CLAS 123 (Wallace) at para. 10:
Nevertheless, grievance procedure is not absolute. Sometimes the policy
rationale supporting the privilege must be weighed against other important policy
considerations. So, there are exceptions to the general rule that grievance
communications should not be heard by the arbitrator unless privilege is waived.
Among the exceptions are that evidence of grievance procedure communications
may be adduced to establish that the grievance was in fact settled in whole or in
part: see Brown and Beatty, supra at 3:4342, footnotes 4 and 5; and, e.g. Lehigh
Northwest Cement v. Boilermakers’ Lodge D-277, (2005), 142 LAC (4th) 108
(B.C. Arb.) (Taylor). Another exception is that grievance communications may be
admitted to prevent the arbitrator from being misled as to the true state of the
facts, or to otherwise prevent an abuse of the arbitration process: see, e.g.
Ottawa Humane Society v. Ottawa- Carleton Public Employees Union (2005) 137
LAC (4th) 337 (Ont. Arb.) (M. Picher).
[Emphasis supplied.]
The Union relies upon the underlined sentence. It argues that it must be
permitted to lead evidence of the Employer’s changing explanation in order to
ensure that I am not misled as to the true state of facts. Alternatively, it argues it
would be an abuse of process to permit the Employer to hide its change of
position behind privilege. Finally, the Union argues the evidence is necessary
because it speaks to the credibility of the Grievor and would provide a basis for
challenging the credibility of the Employer’s witnesses.
[7] The underlined sentence relies upon Arbitrator Michel Picher’s decision in
Ottawa Humane Society. The “true state of facts” in that case were that the
employer initially took the position an employee had no right to grieve the
termination of her employment as she was a probationary employee. During the
grievance procedure the employer abandoned this position. At the arbitration
hearing it sought to assert the position once again. At pp. 341-2, Arbitrator
Picher stated:
As the jurisprudence reflects, the parties must conduct themselves during the
course of the grievance procedure in such a way as to respect the process. That
process is intended to narrow and define the issues which will ultimately proceed
before a board of arbitration if full settlement is not achieved. During the course
of that process they are bound by those partial settlements which may be made,
and so should not lightly make such partial settlements unless they are willing to
be bound by them. If a party which withdraws a position or makes a partial
settlement is allowed thereafter to resile from its position, the integrity of the
grievance process is substantially undermined. Additionally, the scope and
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course of the arbitration hearing itself is made substantially less certain, with
resulting inefficiencies and potential prejudice to the parties themselves.
I agree with that statement. The description “true state of facts” adds nothing to
this analysis and is potentially misleading. To the extent Arbitrator Wallace was
suggesting some open ended broader exception, I disagree. Permitting
introduction of evidence of other statements allegedly made during the grievance
procedure would be inimical to the free discussion it is designed to foster.
[8] In the grievance before me, the issue is whether the Employer’s decision to
award the acting assignment to someone else was discriminatory. The
Employer’s position is and was that it was not. There is no suggestion that
during the grievance procedure the matter was settled in whole or in part or that
there was a change in the Employer’s position. Throughout, the Employer has
denied its decision was discriminatory. There has been no abuse of the
grievance procedure.
[9] Accordingly, para. 54 is amended to read as follows:
The Grievor was senior to Reid as he and Reid were hired on the same date and
in such circumstances it is the practice / policy to proceed alphabetically and G.
comes before R. The Grievor’s date of hire is therefore before Reid’s. Mr. Fisher
was simply making things up in an attempt to justify keeping the Grievor out of the
assignment. The real reason was discrimination based on disability and a refusal
to accommodate which later became abundantly clear.
[10] The second basis on which the Employer seeks to strike particulars is on the
assertion they relate to matters that were resolved by a previous memorandum of
settlement (“MOS”) dated June 20, 2016 between the parties or were addressed
by a recent decision of Arbitrator Petryshen with respect to an alleged breach of
that settlement. The paragraphs of particulars which the Employer seeks to have
struck are 7, 44, 61 - 64. It is useful to reproduce those paragraphs, and, for
context, paragraphs 20 and 21 to which the Employer does not object:
7. Previous to 2014 the Grievor did not have a workplace accommodation. Rather,
he had an unofficial allowance to leave the workplace for the purposes of escorting
his son from home to school. This would require an absence of approximately 9
minutes. The Grievor would do this during his morning break.
….
20. The Parties executed a MOS resolving grievances on June 29, 2016 (Tab 7).
21. The MOS recognized the Grievor’s break would be from 8:30 – 8:45. He used
this time period to escort his son to school from home (Tab 7, para 6).
….
44. Upon his return from the Secondment [on December 26, 2016] a new
accommodation plan was created. We note that the Employer continued to
exclude the family status, child care accommodation need from the plan
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notwithstanding the MOS agreed break time 8:30 – 8:45 to address this specific
requirement (Tab 45).
….
61. The Grievor has an accommodation plan dated January 1, 2017 (Tab 45). It
notes the accommodation for his hours of work 7:00AM – 7:00PM. In addition, the
Grievor had a MOS dated June 29, 2016 (Tab 7) which allows for him to take his
morning break between 8:30AM and 8:45AM to escort his son (then 8 years old)
from his house to the school. He has had this accommodation (informal and then
formalized in the MOS) for a number of years. The Employer was fully aware that
this is the activity that the Grievor undertook during the morning break. The escort
takes approximately 9 minutes in total – door to door.
62. On February 21, 2017 the Grievor was asked by Darian Bacon (AC02), if he
should record that the Grievor was going for food on his break. This was said in a
voice loud enough for staff in the dispatch area to hear. Bacon also said to the
Grievor in front of (IT) Justin and Staff to hear that the Grievor should ask everyone
if they wanted anything. At this time, Darryl Fisher was in his office with his door
open. His office was close to where Bacon loudly made these statements. Fisher
had to have overheard these statements. Fisher did not address this. Bacon was
fully aware of why the Grievor was leaving the CACC at the time. The Grievor
advised Bacon that he should talk to Management.
63. The Grievor and Management are fully aware that other staff also leave the
CACC for their breaks and are not singled out and discriminated against in the
same fashion. This includes Shelley Harrison on February 25, 2017.
64. Bacon deliberately attempted to single out and humiliate the Grievor in front of
all staff for using his break for family status accommodation purposes and Mr.
Fisher condoned this inappropriate and unwelcome behavior [sic].
[11] The Employer argues paragraph 7 pre-dates the MOS and is barred by the MOS
which, generally speaking, provided it was in resolution of all claims to the date of
the MOS. The Employer argues the issues in paragraphs 44 and 61 - 64 were
already addressed by Arbitrator’s Petryshen’s award and thus are res judicata.
[12] The Union argues that paragraph 7 is simply a statement the Grievor did not
have workplace accommodation in 2014 and is not, therefore, barred by the
MOS. With respect to paragraphs 44 and 61 to 64, the Union notes the events in
question post date the MOS, and argues, therefore, they cannot be struck on the
basis that they were resolved by the MOS. With respect to the question of res
judicata, the Union argues the only issue before Arbitrator Petryshen was
whether there had been breach of the MOS. The question of whether the events
in question constituted a breach of the MOS was not placed before Arbitrator
Petryshen. Further, while Arbitrator Petryshen commented that they would not
have been a breach of the MOS, he did not decide the issue which is before me:
whether the alleged events constitute discrimination on the basis of family status.
[13] The following provisions of the MOS are relevant for the purposes of the issue
before me:
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WHEREAS the Grievor filed numerous grievances alleging a variety of breaches
of the collective agreement, including allegations of improper competitions,
discrimination, and harassment related to disability and family status, and including
but not limited to violations of Articles 2 and 3 of the Collective Agreement;
And WHEREAS the parties wish to resolve the above-noted grievances and all
issues related to any grievances filed by the Grievor to date;
THEREFORE the Parties agree to the full and final settlement of the above-noted
grievances without precedent and without prejudice to any other matter between
the parties, on the following terms:
1. The Employer agrees to revise paragraph 1 of Appendix A of Local Operating
Practice Section 2 Practice L 2.1 to indicate that Break 1 for the ACO will be 08:30
– 08:45 hours.
….
18. For greater clarity, the Parties agree that this Memorandum of Settlement is
not intended to affect or negate the Grievor’s accommodation plan. The parties
acknowledge that the Grievor’s accommodation plan will be reviewed in
accordance with Employer policy.
….
20. In consideration of the above, the Grievor and the Union release and forever
discharge the Employer, and Employees, agents, officials and servants of the
Employer, from all actions, causes of action, applications, claims, complaints,
grievances and demands of every nature and kind arising out of the circumstances
of the above noted grievances ….
[14] At paragraph 10, of his decision, Arbitrator Petryshen stated as follows:
[10] The final matter I will address relates to paragraph 18 and to some extent
paragraph 1 of the Memorandum. There is not an alleged breach of these
provisions as such, but [the Grievor] has a concern about them. As the preamble
in the Memorandum indicates, [the Grievor] had previously alleged in a grievance
that he was being treated illegally by the Employer based on family status. To
accommodate the family status issue, [the Grievor] wanted his morning break time
changed to 08:30 - 08:45 hours. As one can see from paragraph 1 of the
Memorandum, the Employer did agree to change the time of the break to
accommodate his request. Indeed, the Employer changed the break time for all
the ACOs. There is no indication in the Memorandum that the Employer changed
the break time due to the family status claim made by [the Grievor]. It appears to
me that the Employer was simply prepared to change the break time to satisfy [the
Grievor’s] request without getting into a fight over whether he was actually entitled
to a different break time for family status reasons. [The Grievor] has not been
denied the opportunity to leave the office during that break time. However, he
believes that his right to that break time is in some doubt because there is no
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recognition in the Memorandum that he was entitled to the new break time for
family status reasons. As I indicated to [the Grievor] at the hearing, the right to the
new break time is protected by paragraph 1 of the Memorandum. The absence of
any reference to family status to justify the new break time does not weaken the
status of the accommodation he received. [The Grievor] expressed a concern that
his supervisor engaged him in some discussion about his break on two occasions.
As I understand it, there is a practice in this workplace that if someone leaves the
office, that person is expected to do a coffee or food run. It appears that [the
Grievor] had been asked by his supervisor if he was leaving to do a food run.
Without explaining why he was leaving the office, [the Grievor] simply advised his
supervisor to speak to the manager. I note that the supervisor is a bargaining unit
employee classified as an ACO2. [The Grievor] believes that more certainty about
the family status basis for his accommodation would mean that he would not be
asked questions about leaving the office on his morning break. It is not clear to
me that that would be the case. In any event, such discussions with a supervisor
about his break do not amount to breach of the Memorandum. The Memorandum
was drafted in a particular way by the parties and in the absence of [the Grievor]
being denied the opportunity to leave the office during his morning break, there
has not been a breach of paragraphs 18 and 1 of the Memorandum.
[15] Paragraph 7 of the particulars alleges that prior to 2014 the Grievor was given
“unofficial allowance to leave the workplace for the purposes of escorting his son
from home to school” and the he did this during his “morning break”. This may
have been relevant to one of the Grievor’s claims which was resolved by the
MOS. In particular, Arbitrator Petryshen’s award indicates the Grievor had
alleged discrimination on the basis of family status and sought as a remedy a
change in his morning break time. (I note that paragraphs 8 to 14 of the Union’s
particulars made the connection between paragraph 7 and this claim relatively
clear. During the course of argument, the Union agreed to strike paragraphs 8 to
14.) As argued by the Employer, this Board’s well established jurisprudence with
respect to the effect of a settlement bars the introduction of that evidence: see for
example, Ontario Public Service Employees Union v. Ontario (Community Safety
and Correctional Services), 2009 CanLII 43624 (ON GSB) (Leighton). I would
also note that it is difficult to see how an unofficial allowance afforded the Grievor
prior to 2014 is in any way relevant to the issues before me.
[16] Paragraphs 44 and 61 both suggest the Employer had agreed to “accommodate”
the Grievor’s family status child care obligations as part of the MOS. As stated
by Arbitrator Petryshen, this suggestion is not supported by the MOS. Rather,
the Employer simply agreed to change the break times for all employees. There
is nothing in the MOS which indicates this was done out of recognition the
Grievor had family status child care obligations which required such an
accommodation. Pursuing the assertion that the MOS constitutes such a
recognition would necessarily require looking behind the written agreement of the
parties and further would require evidence with respect to the claims resolved by
the MOS. Accordingly, the suggestion that the MOS in any manner constituted
such a recognition is struck.
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[17] Paragraph 61, also suggests that prior to the MOS, the Grievor had been
“informally” accommodated in the same manner. This evidence relates to a
claim resolved by the MOS. Accordingly, for the reasons stated above, it is
struck.
[18] Paragraphs 44 and 61 are otherwise unobjectionable, as are paragraphs 62, 63
and 64 essentially for the reasons argued by the Union.
[19] Accordingly, paragraph 7 is struck and paragraphs 44 and 61 are amended to
read as follows:
44. Upon his return from the Secondment a new accommodation plan was created.
….
61. The Grievor has an accommodation plan dated January 1, 2017 (Tab 45). It
notes the accommodation for his hours of work 7:00AM – 7:00PM. In addition, the
Grievor had a MOS dated June 29, 2016 (Tab 7) which allows for him to take his
morning break between 8:30AM and 8:45AM. The Grievor used this time to escort
his son (then 8 years old) from his house to the school. The Employer was fully
aware that this is the activity that the Grievor undertook during the morning break.
The escort takes approximately 9 minutes in total – door to door.
No Prima Facie Case
[20] The Employer seeks to have three of the grievances dismissed on the basis that
the particulars do not make out a prima facie case.
[21] The Employer relies on the test for such a motion set out in Ontario Public
Service Employees Union (Martin et al) v Ontario (Community and Social
Services), 2015 CanLII 60449 (ON GSB) (Anderson):
[3] There is little disagreement between the parties as to the principles
applicable to a motion alleging the particulars of a grievance fail to make out a
prima facie case. In order to succeed, the moving party, in this case the Ministry,
must establish that the “facts asserted in support of a grievance, if accepted as
true, are not capable of establishing the elements necessary to substantiate the
violation alleged”: Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake).
Arguments or conclusions do not constitute allegations of fact. Accordingly, they
need not be accepted as true for the purposes of a no prima facie case motion.
….
[5] The Union notes that in Evangelista, 2011 CanLII 41847 (ON GSB) (Harris)
the Board stated that it was not appropriate to weigh the quality of the proposed
evidence in determining whether there was a prima facie case: see para. 11.
The Union asserts that as a result, for example, I would be required to accept as
true the assertion that the moon is made of blue cheese. With respect, I
disagree. In Evangelista, the proposed evidence was capable of belief. That is
not the case with the Union’s hypothetical example. As I noted in Bharti, 2015
CanLII 19330 (ON GSB) at para. 10:
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In Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R (3d) 1 the
Ontario Court of Appeal held that for the purposes of determining whether
or not a plaintiff’s pleadings made out a prima facie case, alleged facts
that were patently ridiculous or incapable of proof need not be accepted
as true.
[6] The question is whether the asserted facts, taken as a whole, constitute
particulars capable of supporting the violation of the collective agreement
alleged. As the Union argues, the words “capable of supporting the violation” are
of some significance. What matters for the purposes of the no prima facie case
motion is whether the party responding to the motion, in this case the Union, has
articulated a legal theory which, on the facts it has particularized, could
reasonably support a conclusion that there is a violation of the collective
agreement. Therefore, the particulars are to be assessed against the responding
party’s theory of the case. Whether that theory is correct need not be determined
at this stage in the proceedings. Provided the responding party’s theory is
reasonable and it has provided particulars which, if true, would result in a finding
of a breach on the application of that theory, the motion should be dismissed.
[22] The Union argues it is inappropriate to consider the documents referenced in its
particulars as that amounts to “weighing evidence”. In my view, to the extent that
portions of documents are adopted by reference in particulars, they form part of
those particulars and may be considered for the purposes of a motion to dismiss
for no prima facie case. Such consideration does not amount to “weighing the
evidence”.
[23] The Union relies upon Ontario Public Service Employees Union (Ladouceur et al)
v Ontario (Ministry of the Environment) 2005 CanLII 55166 (ON GSB) (Briggs) for
the proposition that the purpose of particulars is only to provide a “road map” of
intentions. If by this the Union means to suggest that it is not limited to its
particulars for the purposes of a no prima facie case motion, I disagree that
Ladouceur stands for that proposition. Rather, in the passage relied upon by the
Union, Arbitrator Briggs merely observed that in the case before her: “In my view,
it is fair to characterize the Union’s particulars as a “road map” of their litigation
intentions.” She then proceeded to determine whether or not there was a prima
facie case based only on those particulars.
[24] The Union relies upon Ontario Public Service Employees Union (Pinazza et al) v
Ontario (Ministry of Community Safety and Correctional Services) 2004
CarswellOnt 5817, 131 LAC (4th) 132, 78 CLAS 183, CanLII 55337 (ON GSB)
(Herlich) for the proposition that the test on a no prima facie case motion is
whether it is “impossible” on the facts alleged by the union to arrive at the
conclusion it urges. I do not agree the case stands for that proposition. Rather,
as argued by the Employer, Arbitrator Herlich’s use of the word “impossible” in
paragraph 24 of his decision was responsive to the argument in the proceeding
paragraph that “none of the events as described in the union’s asserted facts can
possibly give rise” to the breach it alleged. In my view, the vast weight of
authority is consistent with the test I outlined in Martin, and set out above.
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Grievance No. 2017-0368-0003
[25] This grievance alleges:
I [the Grievor] grieve that the Employer [Ministry of Health Long Term Care]
CACC Lindsay office has violated the collective agreement and the Ontario
Human Rights Code, Privacy Act, but not limited to [sic]. The employer has
poisoned my work environment.
[26] The grievance relates to the secondment of the Grievor to a United Way
campaign. Local management had approved the secondment and told the
Grievor his position would be backfilled. As it turned out, initially this was not the
case, and there was a shortage of staff. The Grievor believes he was blamed for
the short staffing. The particulars in support of this grievance are as follows
(subject to the modifications of paragraph 44 directed above):
23. The OPS and UW had a 2016 Sponsored Employee Program opportunity
where employees would have a paid LOA between September to December 2016
(Tab 23).
24. The Grievor applied (Tab 25).
25. In order to apply he required his Manager’s support / approval. Mr. Fisher
approved and supported the Grievor’s right to apply for the initiative (Tab 24).
26. The Grievor confirmed with the UW that his application was sponsored by
work (Tab 26).
27. Wendy Fischer was the Manager, Special Projects – 2016 OPS UW campaign.
The Grievor and Ms. Fischer exchanged correspondence about his application and
Ms. Fischer connected the Grievor to a UW rep (Tab 27).
28. The Grievor met with the UW reps on July 27 (Tabs 28 and 29).
29. The Grievor was provided an Agreement from UW to execute / review on
August 2, 2016 (Tab 30). The Grievor sent the Agreement to Mr. Fisher on August
3, 2016 and asked if the start date of September 12, 2016 could be confirmed. He
also asked if Mr. Fisher needed anything else from him. Mr. Fisher advised that
the start date was fine but wanted the end date to be December 25, 2016. The
Grievor would return to the CACC in December 26, 2016. Mr. Fisher also advised
the Grievor he would continue to be called for OT while on Secondment. Further,
he stated the September dates were filled (Tab 39). He did not say that approval
was outstanding. The Grievor understood he had approval for the Secondment.
30. The Grievor advised the UW of the approval and the dates of the Secondment
per Mr. Fisher (Tab 31).
31. On September 8, 2016, the day before the Grievor’s last work day before the
Secondment, Mr. Fisher advised approval had not been granted and that the
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Grievor may be expected to work at the CACC the next week notwithstanding the
fact that Mr. Fisher confirmed that his shifts had been backfilled (Tabs 32 and 30).
32. The Grievor made a number of frantic calls on September 9, 2016 in relation
to this new information from Mr. Fisher (Tab 33). His reputation and promise to
the UW was now in question.
33. Wendy Fischer advised the Grievor in one of the calls that this was a priority
project with Treasury Board and no LOA approval was needed if the operator’s
supported the Secondment. Darryl Fisher had already supported the Secondment.
At 4:40PM September 9, 2016 the Grievor was advised it was “all a go”. The
Grievor experienced significant stress / anxiety during this process.
34. The Grievor advised the UW that he finally was approved (Tab 34).
35. The Grievor was commended for his work while at the UW (Tab 35). The
Employer was copied on these letters (Tab 35, 26 & 37).
36. In January 2017 the Grievor was advised of the amazing job he did and, in
particular, in relation to Hydro One (Tab 38).
37. On September 19, 2016 Mr. Fisher issued a letter to all staff wherein he
blamed the Grievor for the down staffing of the CACC. Mr. Fisher notes that he
and Mr. Naismith “approved and fully supported” the Secondment. Mr. Fisher
suggests that backfilling of the position was not done (Tab 39). However, Mr.
Fisher had already advised the Grievor that backfilling of his position was in place
(Tab 32) and schedules had been created and posted in August confirming that
the Grievor’s shifts were backfilled by FXT staff (Tab 42). These schedules were
printed and date stamped August 16, 2016 (Tab 42).
38. There was no operational reason or imperative for Mr. Fisher to single out the
Grievor and blame him for a situation that had already been addressed.
39. A co-worker texted the Grievor on September 23, 2016 where the co-worker
was of the understanding that it was the deliberate intention of CACC Management
(Fisher and Naismith) to blame the Grievor also (Tab 40). A group grievance was
threatened.
40. On September 28, 2016, Mr. Fisher issued a follow up memo to all staff noting
that all shifts “will continue to be back filled”. Clearly Fisher simply attempted to
create crisis, which did not in fact exist, with the intent to have co-workers turn on
the Grievor thereby poisoning the work environment for the Grievor (Tab 41).
41. Further blame toward the Grievor was expressed at the LRTC Meeting held
on September 21, 2016. Section (m) speaks to scheduled downstaffing and refers
to “an AC01 on Secondment” as the reason (Tab 43). However, as noted above,
(Tab 42) the schedules created and posted / printed on August 16, 2016 clearly
demonstrate that the schedules for the Grievor for the period September 12, 2016
to October 9, 2016 were, in fact, already backfilled. There was no reason, other
than to poison the Grievor’s workplace, to single him out for a non-existent crisis
which was clearly resolved well before the expiration of the posted schedule.
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42. It should be noted that the Grievor did not have remote access to his email
while off on Secondment so would not have seen these letters unless he attended
the workplace and had time to go back through emails.
43. The Grievor attended at his doctor’s on or about October 19, 2016 and
provided an updated accommodation request note (Tab 44).
44. Upon his return from the Secondment a new accommodation plan was
created.
[Emphasis supplied.]
[27] The non-emphasized portions of the particulars are largely allegations of fact.
The emphasized portions are deserving of further comment.
[28] Paragraph 37 makes the factual allegation that on September 19, 2016, Mr.
Fisher issued a letter. The statement that the letter “blames” the Grievor,
however, is a conclusion. The letter itself is incorporated by reference into the
particulars and is attached to them. It is actually a memo, and reads:
DATE: September 19, 2016
TO: All Staff
FROM: Darryl Fisher - CACC Operations Manager
Re: 02650-01-00113 - CACC Lindsay-Down Staffing
___________________________________________________________
In an effort to be open and transparent with all staff I would like to explain the
current situation involving recent down staffed shifts.
To provide some history, in June, [the Grievor] applied for a ministry-approved
secondment to the local United Way, in which Chris and I approved and fully
supported and will continue to support. In July, Emergency Health Services
Branch (EHSB) was notified of the Leave of Absence request and the need for
backfillng of the shift. To date the EHSB has not provided a decision to the
request and have unfortunately directed us not to backfill the position until
approval has been given. Chris and I will continue to pursue the EHSB for
backfilling of this shift.
Operationally we have no control over this situation as our hands are completely
tied. Our goal ls to have this situation dealt with sooner rather than later to
mitigate the overall impact to our staff and the services we provide.
I apologize for this but appreciate the professionalism that all have shown in
dealing with this thus far.
If you have any questions at all, please contact me in person, by email or phone
and I would be more than happy to discuss further.
Sincerely,
Darryl Fisher
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[29] There is simply no plausible basis on which this memo can be said to be
“blaming” the Grievor. On the contrary, Mr. Fisher appears to have gone out of
his way to explain the situation and accept responsibility for it.
[30] Paragraph 38 is also based on the September 19, 2016 memo. The conclusion
that Mr. Fisher “blamed” the Grievor is not supported.
[31] Paragraph 39 makes a factual allegation about a co-worker texting the Grievor
and suggests in the text the co-worker indicated management was blaming the
Grievor. The text itself is incorporated by reference into the particulars and is
attached to them. It constitutes a text exchange between the coworker and the
Grievor and states in pertinent part:
Ok so management is not filling your spot. What they are doing is down staffing
us on nights on our side claiming the ministry approved your secondment but not
your replacement. We have started a group grievance. We all want you to know
that there is no resentment towards you. You did everything correctly its
management that’s making things suck. So if you hear anything know that
everyone is happy for you, likes & respects you & misses you.
Wow. That is horse shit. I was not aware that they were doing this. I
would join the group grievance for sure. Let me know what you need
from me. That makes me feel shitty … management never mentioned
anything to me.
No reason for you to feel shitty. I just didn’t want you to hear garbage coming
from the Cacc & think we are blaming you. So don’t worry about anything & have
fun &128512;
I was told the treasury pays for me. But who knows what BS was told
[32] Once again, there is simply no plausible basis on which this exchange can be
understood as the coworker saying that management (or anyone else) was
blaming the Grievor for the lack of backfill.
[33] The first sentence of paragraph 40 is an allegation of fact. It adopts by reference
the following memo:
DATE: September 28, 2016
TO: All Staff
FROM: Darryl Fisher - CACC Operations Manager
Re: 02650-01-00114 - CACC Lindsay-Down Staffing
________________________________________________________________
To follow up from a previous memo 02650-01-00113 the issue of down staffing
has been resolved. All future shifts have and will continue to be back filled.
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I appreciate the professionalism that all have shown in dealing with this matter
and thank you for our patience as we worked to resolve the issue with Senior
Management.
If you have any questions, please contact me in person, by email or phone and I
would be more than happy to discuss further.
Sincerely,
Darryl Fisher
[34] The second sentence of paragraph 40, which asserts that Mr. Fisher was
attempting to create a crisis which did not exist and thereby poison the work
environment against the Grievor, is a conclusion or argument. That conclusion is
best understood by reference to paragraphs 37 and 41. It appears the Grievor
believes the fact that Mr. Fisher told him on or about August 3, 2016 his position
would be backfilled, and the fact schedules showing the position as backfilled
were posted on or about August 16, 2016, warrant the conclusion that there was
in fact backfilling available for his position in September, 2016. In my view, those
facts are insufficient to warrant that conclusion, even without regard to the
explanation offered by Mr. Fisher in his memos, adopted by reference in the
Union’s particulars.
[35] The first sentence of paragraph 41 asserts: “Further blame toward the Grievor
was expressed at the LRTC Meeting held on September 21, 2016.” Once again
this is a conclusion or argument. No particulars are provided in support of this
conclusion or argument other than a reference to a section of the minutes of the
meeting. That section states:
ITEM DISCUSSION ACTION
(m) Scheduled down
staffing Date Tabled:
21SEP2016
-Discussion about the current
downstaffing issue relating to an
ACO1 on secondment.
-Further to the memo released,
management advised they were
hoping to receive and [sic] answer
about the request for backfilling of
the shift from EHSB by the end of
the current week (23SEP2016).
-If the downstaffing continues,
management will make an effort for
an equal distribution of downstaffing
platoons.
-Management to
communicate updates to
staff.
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[36] There is no plausible basis on which this can be understood as “blaming” the
Grievor. The balance of paragraph 41 advances the argument of poisoned work
environment discussed above in relation to paragraph 40. As already stated, the
facts are insufficient to warrant the conclusion urged by the Union.
[37] I have no reason to doubt the Grievor believes his work place is poisoned. In
law, however, the question is whether there is an objective basis for that belief.
In my view, the particulars are incapable of reasonably supporting an objective
basis for that belief. I note I would have arrived at the same conclusion based on
the unmodified version of paragraph 44. Accordingly, Grievance No. 2017-0368-
0003 is dismissed on the basis it fails to make out a prima facie case.
Grievance No. 2017-0368-0004
[38] This grievance alleges the Employer discriminated against the Grievor contrary
to the collective agreement by failing to call the Grievor for available overtime
opportunities while he was on secondment.1
[39] The Union’s legal theory is that the Employer has engaged in discrimination as
claimed by the Grievor. Discrimination in employment is made out if a clamant
establishes three things:
(1) The claimant has a characteristic protected from discrimination under the
collective agreement or the Code;
(2) The claimant has experienced adverse treatment with respect to his or her
employment; and
(3) The protected characteristic was a factor in the adverse treatment, i.e. a causal
nexus between the first two items.
While the burden of proof remains on the claimant through out, because the
reasons for the treatment lie within the responding employer’s knowledge,
relatively little affirmative evidence is required to establish a prima facie case of
discrimination, which gives rise to an “evidential burden” on the employer to
provide a response justifying its actions: see Peel Law Association v. Pieters,
2013 ONCA 396 (CanLII), at paras. 55 and 56 and 64 to 74.
[40] With respect to this grievance, the Union’s particulars allege: the Grievor has a
disability (a protected characteristic under the Code); he was not called for
overtime opportunities while on secondment (with two exceptions); and this
occurred after his manager told him he would continue to be called for overtime
opportunities while on secondment. In my view, the particulars in relation to this
grievance looked at in isolation are not capable of giving rise to the necessary
causal nexus to make out a prima facie case of discrimination.
1 The grievance form itself alleges the Employer “breached the collective agreement, but not limited to
discrimination”. No other provision of the collective agreement has been identified as having been
breached.
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[41] This grievance, however, is linked to Grievance 0001, referenced above.
Grievance 0001 alleges the Employer’s decision to award a particular acting
assignment to another employee instead of the Grievor was discriminatory. The
particulars in relation to Grievance 0001 allege, among other things, that an
invitation to express interest in the assignment was posted while the Grievor was
out of the workplace on secondment, with a deadline for applying. The
particulars allege the Grievor was “deliberately overlooked for OT calls until after
the deadline for posting” with the result that he was not aware of the posting in a
timely way. The Employer has not sought to strike out Grievance 0001 on the
basis that its particulars do not establish a prima facie case. If the Union
succeeds on Grievance 0001, it may succeed with the allegation that the Grievor
was deliberately overlooked for overtime for discriminatory reasons. I would not,
therefore, strike Grievance No. 2017-0368-0004 on a preliminary basis.
[42] The Employer argues the manager’s good faith can be inferred from the context
and certain documents. Whether or not that would be sufficient to meet its
evidential burden to provide an explanation for its actions in a hearing on the
merits, it is not relevant on a motion to dismiss for no prima facie case. If the
Union’s pleadings establish a prima facie case of discrimination, they establish a
prima facie case for the purposes of resisting a motion to dismiss without a
hearing.
[43] The Employer argues the Union has failed to particularize any actual lost
overtime opportunities. The Grievor was on secondment and thus absent from
the workplace during the period in question. The Union has plead what it knows.
The dates of overtime opportunities during the relevant period, if any, lies within
the knowledge of the Employer.
[44] For the foregoing reasons, the Employer’s motion to dismiss Grievance No.
2017-0368-0004 is denied.
Grievance No. 2017-0368-0020
[45] This grievance alleges:
I, [the Grievor] grieve that the Employer MOHLTC Lindsay CACC office has
breached the collective agreement and the Ontario Human Rights Code, but not
limited to Articles, 2, 3. The management at the Lindsay CACC are harassing
me about my approved accommodated plan with the Ministry. This is becoming
repetitive, histrionic and and therefore systemic.
[46] The particulars provided specifically in relation to this grievance are paragraphs
61 to 64 set out above. For ease of reference, I reproduce them again (with the
modification to paragraph 61):
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61. The Grievor has an accommodation plan dated January 1, 2017 (Tab 45). It
notes the accommodation for his hours of work 7:00AM – 7:00PM. In addition, the
Grievor had a MOS dated June 29, 2016 (Tab 7) which allows for him to take his
morning break between 8:30AM and 8:45AM. The Grievor used this time to escort
his son (then 8 years old) from his house to the school. The Employer was fully
aware that this is the activity that the Grievor undertook during the morning break.
The escort takes approximately 9 minutes in total – door to door.
62. On February 21, 2017 the Grievor was asked by Darian Bacon (AC02), if he
should record that the Grievor was going for food on his break. This was said in a
voice loud enough for staff in the dispatch area to hear. Bacon also said to the
Grievor in front of (IT) Justin and Staff to hear that the Grievor should ask everyone
if they wanted anything. At this time, Darryl Fisher was in his office with his door
open. His office was close to where Bacon loudly made these statements. Fisher
had to have overheard these statements. Fisher did not address this. Bacon was
fully aware of why the Grievor was leaving the CACC at the time. The Grievor
advised Bacon that he should talk to Management.
63. The Grievor and Management are fully aware that other staff also leave the
CACC for their breaks and are not singled out and discriminated against in the
same fashion. This includes Shelley Harrison on February 25, 2017.
64. Bacon deliberately attempted to single out and humiliate the Grievor in front of
all staff for using his break for family status accommodation purposes and Mr.
Fisher condoned this inappropriate and unwelcome behavior [sic].
[47] Paragraph 64 is not a statement of fact. Rather it is a conclusion and statement
of the Union’s legal theory as to why the preceding facts constitute a breach of
the collective agreement and the Ontario Human Rights Code. In essence, the
Union has pled that Mr. Bacon’s conduct constituted harassment, the Employer,
in the person of Mr. Fisher, was aware of this conduct, failed to take any action
and thereby condoned it and failed in its duties to ensure a safe workplace.
[48] I have no reason to doubt the Grievor experienced Mr. Bacon’s conduct as
harassment. In law, however, the question is whether on an objective basis the
conduct can be viewed as harassment. The particulars describe an isolated
incident which cannot reasonably be described as egregious. In my view, the
particulars cannot reasonably support the legal theory advanced by the Union. I
note I would have arrived at the same conclusion based on the unmodified
version of paragraph 61. Accordingly, Grievance No. 2017-0368-0020 is
dismissed on the basis it fails to make out a prima facie case.
Conclusion
[49] For reasons given above, Grievances Nos. 2017-0368-0003 and 2017-0368-
0020 are dismissed. Paragraph 7 of the Union’s particulars is struck and
paragraph 54 of the particulars is to be modified as directed. (Paragraphs 44
and 61 would also be modified but for the fact that they relate to Grievances Nos.
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2017-0368-0003 and 2017-0368-0020 which have been dismissed, and thus, like
all particulars which relate only to those grievances, are simply no longer
relevant.)
Dated at Toronto, Ontario this 16th day of July, 2019.
“Ian Anderson”
______________________
Ian Anderson, Arbitrator