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HomeMy WebLinkAbout2018-2716.Haider.19-09-12 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# 2018-2716 UNION# 2018-0542-0019 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Haider) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Janice Johnston Arbitrator FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Stefan Pietrangelo Treasury Board Secretariat Employee Relations Advisor TELECONFERENCE September 4, 2019 -2- DECISION [1] This matter was scheduled for mediation on May 6, 2019. It has been scheduled pursuant to the expedited process set out in Article 22.16 of the collective agreement. Article 22.16 states in part: 22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise. 22.16.7 Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise. [2] The grievance in this case, which was filed on September 26, 2018 alleges: “I grieve that the employer has violated the Collective Agreement including but not limited to Article 2 (Management Rights), Article 3 (Harassment and Discrimination), Article 9 (Health and safety), Article 1.4 and any other related employer policy and other labour legislation. The employer has asked the member to do a new job description without notifying the union. The member is not in favour of the management decision asking him to do a new job even though the member has a letter stating that his job position would not change, The Employer has been harassing and bullying the member and has created a poisonous work environment for the member. This has caused stress for the member” [3] We were unable to reach a settlement on May 6th. After the mediation process failed, the Employer raised a preliminary objection that the Union had failed to establish a prima facie breach of the Collective Agreement with regards to all allegations raised by this grievance and requested that the grievance be dismissed. I determined that the Union should be given an opportunity to make out its best case. Therefore the Parties agreed to an expedited process to address the grievance. It was agreed that the union would provide specific particulars with regard to any alleged statements made by the employer, or alleged conduct on the part of the employer that constituted harassment, -3- bullying, arbitrary or unreasonable conduct contrary to the collective agreement or relevant employment statutes within 30 days and the Employer would then have 30 days to respond to those particulars. [4] Before I turn to the submissions of the parties it is helpful to set out some of the background that led to the filing of the grievance. The employer undertook an organizational review and on February 20, 2018, provided written confidential disclosure to OPSEU Ministry Employee Relations Co-chair, with a copy to the OPSEU President, regarding an organizational change that would result in a change in reporting relationships for 62 OPSEU employees in the Labour and Transportation I&IT Cluster, one of whom was the Grievor. The letter states that following a comprehensive review of their organizational structure, consultations with staff and management and a review of the findings and recommendations of a third-party consultant, Knowsys Group, a new organizational structure was finalized. As a result of this organizational change, the Grievor’s reporting relationship changed from reporting to Udai Singh, Manager, Data Management Unit to his current reporting relationship under Peter Chan, Manager, Solution Delivery Unit. There were no changes made to the employee’s classification, salary, work location, or job description as a result of this change in reporting relationship. His daily duties changed but he was still performing work that fell within his job description. [5] A conference call was held with the parties on September 4, 2019. Counsel for the union changed after the first day of mediation and the Statement of Particulars was drafted without counsel having had the benefit of participating in the first day of mediation. During the call I pointed out that the particulars filed did not meet the level of specificity agreed to and to a large extent merely repeated the allegations which had been raised during the mediation. It was agreed that I would review the submissions and if I concluded that further submissions would be helpful I would provide counsel with an opportunity to provide them. -4- [6] On June 15, 2019 the union filed its Statement of Particulars. I have carefully reviewed this document. It is clear from it and the grievance that the grievor is not happy with the results of the organizational review undertaken by the employer and the manner in which it was implemented. He alleges for example that “the change in duties was imposed without any discussion or consultation with the grievor or the union”. Assuming this is true (and at this point I am not making any findings) the change may not have been implemented in the best way but the way it was handled does not constitute a violation of the collective agreement or any employment statute. The employer after an organizational review is entitled to make the changes recommended as long as it does not violate the collective agreement in doing so. [7] The particulars go on to state: 7. The Grievor also alleges that the conduct towards him by the Employer, including the conduct of Peter Chan, its failure to prevent Mr. Chan’s misconduct and the way in which the Grievor’s work was changed, constitutes bullying and harassment contrary to the Collective Agreement. 8. Soon after the Grievor was given the March 8, 2018 letter, including at meetings with management March 29 and in April with Mr. Singh, Bob Stephens and then with Mr. Chan, he began being told his job duties would change. When he expressed concern to his Employer and asked questions about the prospective change he was assured that his duties would remain the same, but that he was obliged to accept any changes in assignment. Despite his requests he was given no explanation for any change in his duties, nor was the Union. Nor was the Employer open to any discussion about the nature of or reasons for the potential changes. 9. On July 6, 2018 at a meeting with the Director Bob Stephens and his previous manager Mr. Singh he was told his duties would be changed to duties in which he had no training and that he would not be given any training. They would not discuss with him why the changes were being made or listen to his concerns. Mr. Chan repeated the same points in a meeting with the Grievor August 10, 2018. [8] In paragraph 7 the union states that the conduct of Peter Chan constitutes bullying and harassment. But absolutely no specifics or examples are provided. With all due respect to the union, it is my job to determine if conduct on the part of the employer meets the test to be found to be bullying and harassment. -5- [9] In Paragraphs 8 and 9 the grievor is clearly not happy about the changes to his duties that are being implemented as a result of the reorganization and the manner in which they were implemented. However, the employer is entitled to reorganize the manner in which work is performed and to assign duties to employees as long as in doing so it does not violate the collective agreement. There are no allegations raised in paragraph 8 or 9 that would merit my concluding that the collective agreement has been violated. [10] Paragraph 11 of the particulars allege: 11. On August 27, 2018 without any basis for doing so, Mr. Chan introduced a process of micro-managing the Grievor’s work in order to ensure that the Grievor was only performing the duties he had assigned him and was not performing the duties he had been doing for last 11 years. This micro management was direct only at the team members who filed the grievances, not for the whole team. [11] Management is entitled to manage and although the grievor may not enjoy the management style of Mr. Chan, micro managing in the absence of anything else is not a violation of the collective agreement. [12] Concerns are raised with regard to the fact that the employer as a part of the reorganization moved employees in terms of their cubicle assignment. The grievor’s move was alleged to be “unnecessary, demeaning and penalizing”. Again I have no doubt that the grievor views this change in this manner. However, the Employer in its submissions points out: 16. On August 21, 2018, Mr. Chan advised the Grievor that as part of the transition to his team there were plans to move his cubicle into his office area within the next few weeks. On September 12, 2018, Mr. Chan advised the Grievor that his office would be moving to a space in his office area and that the move should occur within weeks. This change in cubicles was part of an initiative that saw a number of LTC staff in the office and the Downsview complex move offices in order to have staff’s desks near their team and/or manager following the reorganization. 17. During a discussion on or around September 13, 2018, the Grievor was offered a choice of several offices in the Solutions Delivery Unit office area. 18. As of July 19, 2019, the Grievor has still not moved cubicles. -6- [13] Therefore, the change complained of has not been implemented. It appears that the employer had legitimate operational reasons for making the changes in cubicles and I do not believe that even if the change had been implemented that it constitutes a violation of the collective agreement. [14] The Union’s particulars allege in Paragraph 12 that “On September 6, 2018 in a meeting convened by Mr. Chan, he continued to refuse to discuss the Grievor’s concerns and made comments that were belittling and demoralizing. He should have realized how they would be received.” No specific comment is provided. What is set out is a conclusion, that it is my job to make. In my view this is the only paragraph that merits further particulars. Before I can address the allegations in it I need to know exactly what Mr. Chan is alleged to have said. [15] During the conference call we agreed that if the Union was going to be asked to provide additional particulars that it would do so by October 18, 2019. The Employer shall have until November 8, 2019 to respond. The union will then be given until November 22 to reply. [16] Once all of the submissions have been received I will determine the next step to be taken in this case which could include dismissing the grievance or scheduling another conference call. Dated at Toronto, Ontario this 12th day of September, 2019. “Janice Johnston” ______________________ Janice Johnston, Arbitrator