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Home My WebLink About2017-3672.Mohamed.19-09-17 Decision Crown 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#2017-3672 UNION#2018-0526-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Mohamed) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Esther Song Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Regina Wong Treasury Board Secretariat Legal Services Branch Counsel HEARING July 22, 2019 - 2 - Decision [1] The grievance before me dated February 5, 2018, was filed on behalf of Mr. A. Mohamed, a part-time Court Services Officer. Mr. Mohamed alleges in the grievance that the Employer breached article 3 of the Collective Agreement, the no discrimination/ employment equity provision. The Union claims that Mr. Mohamed has been bullied, harassed and discriminated against on the basis of his race and ethnicity by the Employer. [2] The Union’s letter of particulars is dated July 19, 2019. Most of the particulars cover a period starting in the later part of 2017 and for the most part relate to events concerning Mr. Mohamed’s supervisor at the time, Ms. D. Charalambous. Particulars 3 and 4 however are about much earlier incidents concerning a different supervisor, Mr. M. Fernandes. The essential features of particulars 3 and 4 in relation to the alleged conduct of Mr. Fernandes are as follows. Particular 3 provides in part that “Sometime in 2009, the Grievor’s ex-wife made certain allegations about him. The police came to the Grievor’s workplace and his then manager, Michael Fernandes directed the police to the 9th floor, where the Grievor was working with the judge….” It is then noted that the police removed Mr. Mohamed from the workplace in handcuffs. Particular 4 reads as follows: “Sometime in 2012, the police came to his workplace, looking for the Grievor. Mr. Fernandes told them information about the Grievor, including when he had left work and where he went. As a result, the police arrested the Grievor in front of his children’s school and the neighbouring school, which was the most traumatizing.” [3] The Employer took the position that particulars 3 and 4 should be struck from this proceeding given that the events referred to therein are very dated and unrelated to the more recent timely events that pertain to Ms. Charalambous. This decision only deals with the Employer’s motion to strike particulars 3 and 4. [4] Employer counsel noted in his submissions that article 22.2 of the Collective Agreement requires a grievance to be filed within 30 days after the - 3 - occurrence of the circumstances giving rise to the compliant. She noted that Mr. Mohamed’s grievance was filed about 9 years after the events described in particular 3 and about 6 years after the events referred to in particular 4 and she submitted therefore that the grievance is extremely untimely in so far as these events are concerned. She also submitted that there is no basis for me to exercise my discretion to extend the time for the filing of the grievance. Employer counsel also argued that I should apply the well established 3 year “rule of thumb” at the GSB when dealing with the scope for grievances alleging harassment and discrimination. Counsel submitted that there was no basis for departing from the rule in this case and that I should preclude the Union from calling evidence about the events described in particulars 3 and 4. [5] Employer counsel also argued that because the events in particulars 3 and 4 involved a different manager, were separated by many years and dealt with co- operating with the police, they had no relevance to the more recent events relied on to support the grievance. [6] Employer counsel relied on the following decisions: OPSEU (Kavanaugh) and Ministry of Community and Social Services, (2009) GSB #2007-0136 et al. (Harris); OPSEU (Patterson) and Ministry of Public Safety and Security, (2003) GSB #2001-0925 et al. (Leighton); and, OPSEU (Dubuc) and Ministry of Community Safety and Correctional Services, (2016) GSB #2015-1330 (Herlich). [7] In arguing that particulars 3 and 4 should not be struck from this proceeding, Union counsel emphasized that harassment and discrimination grievances raise serious issues that at times require a review of events over many years to establish the validity of the grievance. She maintained that it is for this reason that strict time limits do not apply to these types of grievance. Union counsel argued that Mr. Mohamed’s grievance was a continuing grievance and that I should exercise my discretion to include the events of particulars 3 and 4 even though they occurred more than three years before the filing of the grievance. She submitted that the focus should be on the relevance of the events and not on when they took place. Union counsel - 4 - argued that the three year rule used for harassment and discrimination grievances is merely a guideline, and not a hard and fast rule. She maintained that the events described in particulars 3 and 4 are relevant to establishing a pattern of illegal conduct by the Employer against Mr. Mohamed. Union counsel also noted that the fact that the disputed particulars relate to a former manager is irrelevant because the grievance is not against a specific person but against the Employer’s continuing conduct that amounts to harassment and discrimination. [8] To support her submissions on the motion, Union counsel provided me with the following decisions: George Brown College of Applied Arts and Technology and OPSEU, 2016 CanLll 9122(ON LA) (Bendel); OPSEU (O’Brien) and Ministry of Community Safety and Correctional Services, (2011) GSB #2003-1881 (Leighton); OPSEU (Lunan) and Ministry of Labour, 2015 CanLll 36166 (ON GSB) (Leighton); OPSEU Liantzakis) and Ministry of Community Safety and Correctional Services, 2014 CanLll 70084 (ON GSB) (Tims); OPSEU (Hunt et al.) and Ministry of the Attorney General, 2003 CanLll 52888 (ON GSB) (Abramsky); Switzer v. CAW-Canada, 1999 Carswell ONT 4438 (Surdykowski); Becker Milk Co. v. Teamsters, Local 647, 1978 CarswellOnt 885 (Burkett); Greater Niagara General Hospital v. O.N.A., 1981 CarswellOnt 1881 (Schiff); and, OPSEU (Stone) and Ontario Clean Water Agency, (2001) GSB #1111/99 (Johnston). [9] After considering the submissions of counsel, I am satisfied that the essential issue before me is to determine the proper scope of the evidence of Mr. Mohamed’s harassment and discrimination grievance and whether there is a basis for permitting an exception to the 3 year rule. As the GSB cases have indicated, the 3 year rule is a guideline, not an inflexible rule. The circumstances of each case must be carefully examined in each instance in order to balance the Union’s interest in proving its case and the Employer’s interest in having a fair opportunity to defend itself against allegations that occurred many years before the filing of the grievance. In this instance, the events described in particulars 3 and 4 occurred many years before the grievance was filed and their substance does not have anything in common with the more recent events that the Union relies upon to support the grievance. It is difficult to appreciate - 5 - how these earlier events assist the Union in establishing a pattern of harassment and discrimination when comparing them to the more recent events. In my view, no reasons have been provided to illustrate that exceptional circumstances exist in this case that would warrant a departure from the 3 year rule. The striking of a fair balance between the Union’s and the Employer’s respective interests lead me to conclude that the Employer’s position has considerable merit and that the 3 year should be applied. [10] Accordingly, the Employer’s motion is allowed. The Union will not be permitted to call evidence about the events described in particulars 3 and 4. The hearing of this matter will resume on the dates scheduled. Dated at Toronto, Ontario this 17th day of September, 2019. “Ken Petryshen” Ken Petryshen, Arbitrator