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HomeMy WebLinkAbout2005-1443.Tardiel et al.08-07-11 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2005-1443 and files listed in Appendix I UNION# 2005-0530-0022 and files listed in Appendix I IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Tardielet al.) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Christopher J. Albertyn FOR THE UNION David Wright, Ryder Wright Blair & Holmes LLP, Barristers and Solicitors Eric del Junco, Barrister and Solicitor Donald McLeod, The McLeod Group, Barristers and Solicitors FOR THE EMPLOYER Lisa Compagnone Counsel Ministry of Government and Consumer Services HEARING June 27, 2008. 2 Decision This decision concerns grievances arising from circumstances at the Toronto Jail (?the Jail?). The decision sets out the orders I make for the hearing and resolution of these grievances, based on the parties? submissions. To the extent that the list of grievances cited is not accurate, either party may raise that issue with me. I note the previous agreement of the parties to proceed by way of mediation-arbitration (also referred to as ?med-arb?), pursuant to Article 22.16 of the parties? collective agreement, in the full knowledge that issues of human rights form a significant feature of the issues in the grievances. The mediation-arbitration is directed to accomplishing the following objectives: To provide the grievors with an opportunity to tell what happened to them, and to feel, at the end of the process, that they have had a fair opportunity to be heard; To provide management with an opportunity to provide its response; To reconcile all of the different constituencies in the workplace at the Toronto Jail by agreeing upon systemic remedies; To provide a basis for effective ongoing reconciliation of differences between the various constituencies within the Jail; To ensure that the systemic remedies agreed on are properly implemented by all of the constituencies; To settle the grievances in a manner that is fair to each grievor, given their particular individual circumstances, and generally reasonable; To achieve these objectives within the relatively near future. To accomplish the above objectives I recognize the following: a.an individual dimension (the opportunity for the individual grievors to be heard and, if possible, ultimately to feel vindicated), b.a collective and organizational dimension (the re-constituting of the relationships in the workplace and developing systemic remedies), and 3 c.a legal dimension (the resolution of the grievances). I note that there are various interest groups in the individual and legal dimensions, and there are various constituencies in the collective and organizational dimension. The details of these groups and constituencies will be identified further as the process proceeds. The parties will start with the following: d.Individual groups i.Group A grievors ? those claiming they have been discriminated against because they are racialized: 1.Recipients of the letters 2.Those named in the letters 3.Those who claim to have experienced racist incidents 4.The remaining grievors who believe themselves to be at risk of racist acts at work because they are racialized ii.Group B grievors 1.Those who claim to be wrongfully accused of writing / sending the anonymous mail. 2.Those who claim to have suffered by association with or support of those who claim to be wrongfully accused. 3.Those who claim to have been wrongfully implied to be responsible for the anonymous mail. 4.Those who claim to have been wrongfully targeted by co-workers, management or any third party during the course of any investigation/processrelating to the anonymous mail or any racist conduct, including those claiming to: a.Be wrongfully identified as a suspect or person of interest. b.Be defamed, threatened, coerced or ostracized in any fashion. c.Have suffered property damage or other costs in association with the poisoned environment. d.Be wrongfully disciplined. 5.Those who claim they have suffered a poisoned work environment as a result of wrongful accusations of racism against themselves or 4 co-workers. 6.Those who claim to have experienced racist incidents in relation to the anonymous hate mail. 7.Those who claim to have had to attend at the poisoned workplace where they claim to be potentially targets of racist acts on any given day. iii.Group C grievors Those assigned by the Union to Group A or B who feel uncomfortable with that assignment. e.Organizational constituencies: i.Management 1.Senior management within the Ministry (Operations and Human Rights & Organizational Change) 2.The Superintendent and the senior management staff at the Jail 3.Operational management at the Jail, OM16s 4.Other influential constituencies ii.Union 1.the Union provincially ? MERC representatives 2.the Union local executive 3.Group A grievors 4.Group B grievors 5.Other influential constituencies. I stipulate the following concerning the media. The media are excluded from the process. If there are media inquiries, the parties will provide a joint statement, as follows: ?the parties are currently working on an agreed process to resolve individual and workplace issues, and are not in a position to give more detail?. There will be no discussion of details of the mediation-arbitration process until the process is resolved. However, if there is an unanticipated development not associated with this process at the jail, no media statement will be made that could harm the mediation-arbitration process. 5 There will be four broad parts to the mediation-arbitration process, intended to address the issues and achieve the above objectives. The first will involve private hearings, with small attendance, for some of the individual Grievors (?the first part?). The second will involve hearings attended by representatives of all of the relevant constituencies in the Jail at which the Grievors and the Employer will have a representative opportunity to inform all present of the grievances, and the circumstances giving rise to them, and of actions taken to remedy the situation (?the second part?). The third part will involve the organizational constituencies in an organizational initiative designed to agree upon values and to re-constitute relationships within the Jail and to address systemic remedies sought by the parties (?the third part?). The fourth part will be an expedited mediation-arbitration of the claims of each of the Grievors (?the fourth part?). The parties will provide a will-say statement for each person selected to testify, the selection being subject to my overall direction. The will-say statement will give an account of the individual?s experiences, to be followed at the hearing by the individual telling their experience based on the will-say. This might be supplemented with other documents (e.g. copies of the letters, doctors reports, etc.). All of these documents will to be produced at least 7 days in advance. Attendance at the first part will consist of those representatives of the parties in the coordinating group (?the coordinating group?) I have consulted on this process to date, with the affected Grievor, and with a senior representative of the Ministry?s operational management. To the extent a Grievor wishes to have an individual or individuals present in support, within reason, that will be permitted. If possible, the parties should produce an agreed common bundle of documents, preferably electronically. At the close of a Grievor?s narrative of what occurred, some preliminary discussion of settlement of the Grievor?s claim will occur. For this, as with all other parts of the process, I reserve the right to exclude any person, and I will likely meet only with the parties directly affected once discussion of the parameters of settlement of individual claims occurs. 6 There will be no cross-examination. There may be some questioning, for the purpose of clarification, from counsel for the parties (management, group A, group B) and by me. The timing of the first part of the process is as follows: - May 26, 2008: Mark Brewster - May 27, 2008: Mark Brewster, Charlene Tardiel - May 28, 2008: Trevor Marrett - May 29, 2008: Harriet Rusteau, Leroy Cox - June 11, 2008: Perry Alleyne, Emmanuel Mutema - June 18, 2008: Colleen La Rose, Hayton Marrison - June 19, 2008: Hayton Marrison - June 27, 2008: Alnoor Vasta - October 6, 2008: to be determined - October 7, 2008: to be determined - October 8, 2008: to be determined - October 28, 2008: to be determined - October 31, 2008: to be determined - November 5, 2008: to be determined - December 17, 2008: Group B grievances med-arb - December 18, 2008: Group B grievances med-arb - January 30, 2009: Group B grievances med-arb - February 2, 2009: Group A grievances med-arb - February 3, 2009: Group A grievances med-arb - February 9, 2009: Group B grievances med-arb - February 18, 2009: Group A grievances med-arb - February 19, 2009: Group A grievances med-arb - February 20, 2009: Group A grievances med-arb - February 24, 2009: to be determined - February 26, 2009: to be determined. 7 The October dates may be used, if necessary, for continuation of the first part. Otherwise, those dates will be used for the fourth part, the mediation-arbitration of individual grievances. The purposes of the second part of the process will include: to enable the different constituencies in the Jail to hear each other in a respectful, tolerant manner; to allow individuals who have suffered some harm from past occurrences to speak of these occurrences and of the harm, without interference; to build understanding of the actions taken by various affected individuals; to facilitate reconciliation between the various organizational constituencies in the Jail. Management may wish to explain the efforts it made to address the problems identified in the grievances, and to address such other matters as it thinks appropriate. Attendance in the second part will consist of those in the first part and representatives of each of the different constituencies described above. Those who will participate in the organizational initiative (the third part) will be present to hear what is said in the second part. I will issue a further decision in due course listing those entitled to attend the second and the third parts. No persons other than those so listed will be admitted to the hearing. Name tags will be issued to the participants and returned at the end of each day. Lists of those whom the Union and the Employer propose will attend the second and third parts will be submitted to me by the parties by June 27, 2008. The sequence of the second part hearings will be as follows: DATE 10am ? 12:30pm 1:30pm ? 3:30pm 4pm ? 6pm July 21, 08 Group A Group B Management July 23, 08 Group B Management Group A July 24, 08 Management Group A Group B July 25, 08 Union Management - There will be no cross-examination. There may be some questioning, for the purpose of clarification, from counsel for the parties (management, group A, group B) and by me and by the 8 facilitators engaged by the parties, Brian McLean and Dana Randall, who will be present in the second part and who will assist me in the third part of the process. At the conclusion of the second part, I may prepare a very brief summary of my observations, to be shared with the coordinating group, and subsequently introduced into the third part. The third part is a concentrated process, representative of the different constituencies, intended to address systemic remedies and to develop shared values. It will take place in the period July 28 to August 1, 2008 enable the following: - Each group will identify the problems it believes have led to a polarized, poisoned work environment. - Each group will be urged and engaged to suggest what each group / employee / member of management / union representative can do to ensure, on an ongoing basis, that the work environment is fair, respectful, efficient, and free from discrimination and harassment. - The third part will result in the development of a common set of agreed objectives from the lists proposed by the various constituencies. This will be done through a process of facilitated discussion. - The parties will jointly identify (by re-constituted sub-committees drawn from the different constituent groups) the actions needed to be taken to achieve the objectives. - Suitable structures will be established to supervise the ongoing realization of the objectives with an agreed timetable. - Procedures for review of the process will be agreed upon to review the implementation of the agreements reached. The rules described above for the second part will apply to the third part. The expectations of the participants should be that their attendance will be required from 9am each day until 5pm each day from Monday, July 28, 2008 to Friday, August 1, 2008, and such later time each day as I may require. 9 The terms of Article 22.16 will apply to all parts of the mediation-arbitration process. The fourth part will commence in October 2008 and continue until all of the grievances are determined. At the conclusion of the process, for those grievances not resolved by agreement, I will issue a brief decision determining each grievance. I am seized with respect to all of the above grievances. th day of July 2008 Dated at Toronto this 11 Christopher J. Albertyn Vice-Chair 10 Appendix I Group A Grievances GSB No. Grievor OPSEU File No. 2005-1443 Tardiel, Charlene et al. 2005-0530-0022 2005-2702 Vasta, Al 2005-0530-0040 2005-3087 Marrett, Trevor 2005-0530-0049 2005-3859 Henry, Herman 2005-0530-0052 2005-3860 Jauha, Kulwinder 2005-0530-0053 2005-3861 Miller, Frank 2005-0530-0054 2005-3863 Smith, Calvin 2005-0530-0056 2005-3865 McLennon, Michael 2005-0530-0058 2005-3866 Manor, Quincy 2005-0530-0059 2005-3867 Joseph, Manoj 2005-0530-0060 2005-3869 Lindo, Karen 2005-0530-0062 2005-3870 Cataline, Johnson 2005-0530-0063 2005-3871 LaRose, Colleen 2005-0530-0064 2005-3874 Harries-Jones, Sarah 2005-0530-0067 2005-3875 Gray, Veronica 2005-0530-0068 2005-3876 Grant, Caroline 2005-0530-0069 2005-3879 Ellis, Donovan 2005-0530-0072 2005-3883 Dawjee, Khalid 2005-0530-0076 2005-3884 Cox, Leroy 2005-0530-0077 2005-3886 Brewster, Mark 2005-0530-0079 2005-3888 Alleyne, Perry 2005-0530-0081 2005-3889 Stewart-May, Patricia 2005-0530-0082 2005-3890 Samuels, Rhona 2005-0530-0083 2005-3891 Persaud, Bibi 2005-0530-0084 2005-3893 Ortiz, Florencio 2005-0530-0086 2005-3894 Olivierre, John 2005-0530-0087 2005-3895 Emmanuel, Mutema 2005-0530-0088 2005-3896 Moore, Mark 2005-0530-0089 2005-3898 Mohamed, Mohamed 2005-0530-0091 2005-3901 Thompson, Denise 2005-0530-0094 2005-3909 Cajamarca, John 2005-0530-0102 2005-3910 Tuan-Kiet, Doan 2005-0530-0103 2005-3912 Glover, Jason 2005-0530-0105 2005-3917 Montague, Roderick 2005-0530-0110 2005-3920 Tan, Joey 2005-0530-0113 2005-3922 Majid, Mohammad 2005-0530-0115 2005-3923 Skeffington, John 2005-0530-0116 2006-0128 Jackman, Marva 2006-0551-0002 2006-0422 Walcott, Pauline 2005-0530-0121 2006-0423 Marshall-Wilkinson, Joan 2005-0530-0129 11 Group A Grievances GSB No. Grievor OPSEU File No. 2006-0424 Walji, Nasim 2005-0530-0123 2006-0425 Joson, Nelson 2005-0530-0124 2006-0482 Manrique, Lolet 2005-0530-0125 2006-0623 Cajamarca, John 2006-0530-0019 2006-1079 Union, 2006-0530-0022 2006-1129 Vasta, Al 2005-0530-0126 2006-1130 Williams, Simone 2005-0530-0127 2006-1816 Tardiel, Charlene 2006-0521-0022 2006-2369 Harries-Jones, Sarah 2006-0530-0094 2006-2892 Thompson, Denise 2007-0530-0003 2007-0328 Rusteau, Harriet 2007-0530-0020 2007-1459 Wilson, Debby et al. 2007-0530-0030 2007-1460 Singleton, Samantha 2007-0530-0031 2007-1461 Gray, Stewart 2007-0530-0032 2007-1462 Adesua, Olusola 2007-0530-0033 2007-1463 Garisto, Joe 2007-0530-0034 2007-1464 Mitchell, Ewen 2007-0530-0035 2007-1465 Ward, Vaughn 2007-0530-0036 2007-1466 Morgan, Gracelyn 2007-0530-0037 2007-1467 Etienne, Cavelle 2007-0530-0038 2007-1468 Ramlal, Sylvia 2007-0530-0039 2007-1469 Azeese, Ally 2007-0530-0040 2007-3030 Williams, Simone et al. 2007-0530-0050 2007-3576 Rusteau, Harriet 2008-0530-0029 2007-3864 Rusteau, Harriet 2008-0530-0032 2008-0548 Manor, Quincy 2008-0530-0043 2008-0549 Emmanuel, Mutema 2008-0530-0044 Group B Grievances GSB No. Grievor OPSEU File No. 2005-3857 Adair, Allan et al. 2005-0530-0050 2005-3858 Cooney, Guy 2005-0530-0051 2005-3862 Perunovic, Stefanka 2005-0530-0055 2005-3864 Tanel, Luciano 2005-0530-0057 2005-3868 MacKey, Nigel 2005-0530-0061 2005-3872 Jagpal, Sam 2005-0530-0065 2005-3873 Hopkins, Byron 2005-0530-0066 2005-3877 Flanagan, James 2005-0530-0070 2005-3878 Fryginberg, Elina 2005-0530-0071 2005-3880 Dvorak, Jeffrey 2005-0530-0073 2005-3881 Durdle, Philip 2005-0530-0074 12 Group B Grievances GSB No. Grievor OPSEU File No. 2005-3882 Deal, Tony 2005-0530-0075 2005-3885 Brown, Sidney 2005-0530-0078 2005-3887 Bazger, Hamza 2005-0530-0080 2005-3892 Parna, Elmar 2005-0530-0085 2005-3897 Montgomery, Mavis 2005-0530-0090 2005-3899 McNeely, Elizabeth 2005-0530-0092 2005-3900 Valaitis, Laura 2005-0530-0093 2005-3902 Pacheco, John 2005-0530-0095 2005-3903 Agnello, Tania 2005-0530-0096 2005-3904 Lino, Angelucci 2005-0530-0097 2005-3905 Ardito, Santa 2005-0530-0098 2005-3906 Bartosiewicz, Agnes 2005-0530-0099 2005-3907 Bolton, Karen 2005-0530-0100 2005-3908 Brooks, Tim 2005-0530-0101 2005-3911 Fitzpatrick, Carrie 2005-0530-0104 2005-3913 Hauery, Mark 2005-0530-0106 2005-3914 Haars, Catherine 2005-0530-0107 2005-3915 Kotsovolos, George 2005-0530-0108 2005-3916 Miklasz, Stanley 2005-0530-0109 2005-3918 Robbescheuten, Crystal 2005-0530-0111 2005-3919 Phillips, Stana 2005-0530-0112 2005-3921 Leppan-Triolo, Barbara 2005-0530-0114 2005-3924 Jacklyn, Denise 2005-0530-0118 2006-0040 Pacheco, John 2006-0530-0005 2006-0041 Pacheco, John 2006-0530-0006 2006-0042 Pacheco, John 2006-0530-0007 2006-0138 Christensen, Robert 2005-0530-0119 2006-0620 Pacheco, John 2006-0530-0016 2006-0624 Phillips, Stana 2006-0530-0020 2006-1131 Nash, Heather 2005-0530-0128 2006-2272 Pacheco, John 2006-0530-0086 2006-3129 Leppan-Triolo, Barbara 2007-0530-0013 2006-3130 Deal, Tony 2007-0530-0014 2006-3131 Miklasz, Stanley 2007-0530-0015 2007-2491 Jagpal, Sam et al. 2007-0530-0049