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HomeMy WebLinkAbout2018-1346.Grievor.19-09-24 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#2018-1346 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN The Association of Management, Administrative and Professional Crown Employees of Ontario (Grievor) Association - and – The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Brian McLean Arbitrator FOR THE ASSOCIATION FOR THE UNION Nadine Blum Goldblatt Partners LLP Counsel Avril Dymond Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Peter Dailleboust / Andrew Lynes Treasury Board Secretariat Legal Services Branch Co-Counsel HEARING August 22, 2019 - 2 - Decision [1] These are grievances that arose out of physical contact between two public service employees in their workplace. The Grievor, who is represented in her employment relationship with the government by AMAPCEO, was physically contacted by B as they passed by each other in the hall at work. In these grievances AMAPCEO has, broadly speaking, two complaints. The first is that it contends that B’s actions were deliberate and therefore constituted an assault on the Grievor for which she suffered significant psychological trauma which has caused her to be off work since the incident. AMAPCEO’s second complaint is that the investigator, who was tasked with investigating the incident and wrote a report exonerating B, was unconsciously tainted by racist stereotypes; the Grievor is black and B is white. As a result of the Grievor’s claims, B seeks to intervene in this grievance. This award determines that she may participate in the hearing on a limited basis. [2] Importantly, one of the remedies sought by AMAPCEO in these grievances is an order that “the Employer ensure that [the Grievor] and [B] are not required to work together or interact in any way”. AMAPCEO acknowledges that “as a practical matter, this may require that either the Grievor or [B] be transferred, but AMAPCEO is not specifically asking that [B] be transferred”. [3] OPSEU/B seek to intervene as a party in these grievance so that it can represent B’s interests including the protection of her collective agreement rights. B has filed her own grievance, which is not consolidated with this one, largely complaining about her treatment during the investigation process, including the length of time the investigation took to complete and the assertion that the investigator did not properly take into account medical issues she asserts she was having. B has also been off work since the incident and continues to assert that the physical contact she made with the Grievor was an inadvertent accident. The Employer takes the position that OPSEU/B should be permitted to participate in this grievance as a party. - 3 - [4] AMAPCEO opposes OPSEU/B’s request to intervene. It asserts that the Employer will protect B’s interests in the hearing since it supports her version of events (apart from the issues raised by her grievance, which can be dealt with in a separate proceeding). Moreover, OPSEU can be an observer of this arbitration and, if B’s interests diverge from the Employer’s, it can renew its request to participate at that point. [5] The parties appeared before me on August 22, 2019 to argue OPSEU/B’s motion to be permitted to intervene. [6] OPSEU and the employer rely on a series of cases in which boards of arbitrations have granted intervenor status (of some kind) to persons who are alleged as part of a grievance to have sexually harassed or discriminated against a Grievor. In these cases, arbitration boards have expressed concern that the outcome of the grievance arbitration could affect the reputation and privacy of the alleged perpetrator. They have also been concerned about the possibility that at some point during the hearing the interests of the alleged perpetrator and the employer may diverge such that the legal and other interests of the alleged perpetrator may not be protected by the employer. [7] OPSEU notes that B’s role in the incident and the appropriate remedy will be effectively determined by my award on the merits of this grievance. It is contrary to natural justice principles that B may be ordered to a different workplace as a result of this grievance without having her own say on that remedy and without having had an opportunity to cross-examine the Grievor and otherwise present evidence to protect herself and advance her version of events. - 4 - [8] AMAPCEO argues that in all of the cases relied on by OPSEU there was a finding that there was a real possibility that the interests of the alleged perpetrator and the employer would diverge whereas that possibility is just not present in this case. The employer will make all of the arguments and lead all of the evidence that OPSEU/B would were they given standing. It would also unnecessarily lengthen the proceeding to have OPSEU and the employer essentially taking the same positions in this proceeding. [9] In addition, AMAPCEO notes that the Grievor currently has a medical restriction which precludes her from being in the same room as B. To grant B full party status, with the right to be in the hearing room, could jeopardize the Grievor’s health or preclude her from attending her own grievance. [10] AMAPCEO relies on Hurd v. Hewitt [1994] 20 O.R. (3d) 639 where the Ontario Court of Appeal had before it a case where witnesses (who were not parties) sought to overturn a tribunal’s determination that they were involved in a conspiracy, which finding created personal repercussions for them. The alleged conspiracy and their alleged involvement in it were not drawn to the attention of the witnesses when they testified. The judge of first instance relied on the rule in Browne v. Dunn and quashed the tribunal’s decision. The Court of Appeal reversed this decision because it (Carthy J.A.) found that there was no rule as to the questioning of witnesses: “the tribunal must assess the evidence and adjudicate upon the rights of the parties as those rights appear from the evidence, and not the evidence minus that which appears unfair to third parties.” Hurd is obviously very different than the case before me but AMAPCEO relies on it for the proposition that there is no firm rule that persons whose reputations may be impugned by evidence given at a hearing must be given an opportunity to respond, let alone be made a party: GRIFFITHS J.A. (concurring): -- I agree with the reasons and result reached by Carthy J.A. and would add only these observations. - 5 - While we are setting aside the declaration issued below I would note, that the declaration had salutory effect in that it conveyed the message that the findings of the arbitration panel impugning the reputations of the respondents were made without affording the respondents an opportunity to respond. One would hope that where it is convenient and practical to do so, that is without unduly lengthening or complicating the process, that decision-makers generally would afford non-parties the opportunity to be heard before making findings reflecting on their character or integrity. However, I agree with the well reasoned conclusions of my colleague, that it would be inappropriate to hold that every decision-maker has an absolute duty in law to afford non-parties the opportunity to be heard before making adverse findings against them. (emphasis added) Decision [11] The starting point in my analysis is the recent award of Arbitrator Steinberg in Health Sciences North v Cupe, Local 1623, 2019 CanLII 31098 (ON LA) which was relied on heavily by AMAPCEO. In that case, the third party (MC) sought to intervene in an arbitration hearing with “full party standing”, including the right to participate in matters which did not affect her directly. The arbitration hearing was in respect of a termination grievance brought by an employee who had been discharged for allegedly harassing MC. Arbitrator Steinberg dismissed the motion, primarily because MC was the complainant, not an alleged perpetrator. In this regard Arbitrator Steinberg stated: [52] This request, if granted, would be without precedent. There are no cases that were referred to where a harassment complainant has been granted third party standing in a grievance arbitration. Moreover, it goes far beyond the limited right of participation granted in the cases relied on by MC and the employer where a right to intervene was granted to an alleged harasser only in respect of personal matters (reputation, privacy, integrity). [12] However, Arbitrator Steinberg went further in expanding on why MC was not granted standing despite the fact that her reputation might be affected by the outcome of the arbitration. Arbitrator Steinberg found that exceptional - 6 - circumstances were required to give third parties standing including where the third party is effectively unrepresented and legal rights will be affected by the arbitrator’s award. I quote his reasoning at length: [53] The case law is settled that grievance arbitration is a private process between the union and the employer. The participation of third parties in that process is exceptional (Laurentian University (and the cases cited therein) and Kawartha Pine Ridge DSB). [54] The exceptional circumstances which will support the participation of a third party in that private process have been articulated by Arbitrator Burkett in Laurentian University at p. 5 in the following terms “…a third party may be given intervenor status in circumstances where the third party is effectively unrepresented and it’s legal rights stand to be adversely affected by the arbitral decision or where a failure to grant intervenor status would lead to parallel hearing with a potentially contradictory result (i.e. jurisdictional disputes)”. [emphasis added] It is based on concepts of fairness and natural justice. [55] In Bloorview, which was cited by Arbitrator Burkett in Laurentian University, Arbitrator Knopf reviewed a non-exhaustive list of factors that should be considered by arbitrators in exercising their discretion in these cases. These include: • Does the third party have a direct and significant interest at stake? • Would the third party suffer a definite and/or significant adverse effect if the grievance succeeds? • What is the nature of the third party’s “interest”? Is it a legal, contractual, commercial or ‘other’ interest? • Is the third party’s interest grounded in any labour law principles? • Can the third party defend or protect that interest in any other forum? • Would the denial of status result in the possibility of a different ruling in another forum? • Does the third party have something significant to add to the proceeding? [56] In this case, MC can arguably claim that the first two factors support her request to intervene. However, in my view, she cannot do so in respect of the other factors. [57] She does not have a legal interest or right that would be adversely affected by the outcome of this proceeding. Although she can claim a broad legal interest in a harassment-free workplace, this is a right that all - 7 - members of the bargaining unit share and is not a right personal to her that would support a request for third party status. [58] With respect to the grievor’s grievance, she has no legal rights that will be impacted by the outcome of that grievance. No doubt she strongly prefers that he not be reinstated. But that is a preference and not a legal right that she has. She also makes the point that his reinstatement will have adverse consequences on her and her health. If he is reinstated and if she suffers such adverse consequences, she may very well have legal rights at that will arise at that time that she can assert. [59] As noted by the union, most of her submissions in support of her request to intervene are focused on the lack of representation afforded to her by the union. This is a matter that must be pursued at the OLRB and not by way of intervention in a grievance arbitration proceeding. It is not obvious to me that there is any possibility of inconsistent results in view of the legal issues to be determined. The issue before me in the employer grievance is about whether the union violated the collective agreement and employer policies relating to harassment. The issue at the OLRB would be whether the union violated its duty of fair representation not to act in a manner that was arbitrary, discriminatory and in bad faith in the representation of the grievor. [60] The determinative factor in this case is whether the interests of MC and the employer align or are divergent. As Arbitrator Ish noted in Saskatoon Regional Health Authority: 29 The case law generally considers whether the interests of the employer are completely co- extensive with that of the third party. If the interests are divergent, or potentially divergent, this will be an important factor in determining that standing should be granted to the third party. It is important to note that it is not necessary for the third party to show that the interests are actually divergent or in conflict; rather, it is sufficient to show that there is a reasonable potential for that to occur. [61] In my view, the interests of MC and the employer are perfectly aligned with respect to the relevant issues before me. Both rely on the right to a harassment free work environment broadly defined to include union activities off the work-site. Both identify the union and the grievor as having violated this right. Both assert that, as a result, the termination of the grievor was for just cause. Both assert that the employer’s grievance should be allowed and that of the grievor dismissed. Both are vehemently opposed to the return of the grievor to the workplace. - 8 - [62] There is no doubt that MC will be a witness, perhaps the main witness, for the employer. The employer is represented by skilled counsel who will, no doubt, continue to bring forward the evidence and raise every available argument to achieve the results that both the employer and MC wish to achieve. In my view, MCs cannot claim to be “effectively unrepresented” in this proceeding. (see quote from Arbitrator Burkett in Laurentian University at para.54 above). [13] AMAPCEO argues that in all of the cases relied on by OPSEU and the employer where standing was given to a third party there was at least a reasonable likelihood that the interests of the third party and all other parties (usually in the discrimination cases, the employer) may diverge. This argument echoes portions of Arbitrator Steinberg’s award where he reviewed decisions submitted by MC and noted that in each of them there was a finding that the interests of the third party were not aligned with the employer. [14] It is not clear to me that the law is as consistent as AMAPCEO’s argument might suggest. Many of the cases suggest that a potential divergence of interests is just one of the factors an arbitrator should consider in determining whether to permit a third party to intervene. While, divergence of interests is a frequently noted factor, it is apparent that many arbitrators have found that the nature of the allegations against the third party might lead to the conclusion that they should be made a party. For example in C.U.P.E., Local 101 and The City of London, 131 L.A.C. (4th) 56 Arbitrator Lynk held in a discrimination case that a Supervisor could intervene “first and foremost” because the Supervisor had “important personal interests to protect: namely his reputation and privacy”. While Arbitrator Lynk noted the potential for a divergence of interests, it is clear that was a secondary concern. Nevertheless, for the purposes of this award, I accept that in order for B to be granted standing as a matter of reputational protection there must be a reasonable potential that her interests and those of the employer might diverge. - 9 - [15] I need not decide whether the divergence of interests criteria is necessary before a person can be made a party because I am satisfied that there is a reasonable potential for conflict between the interests of B and the employer. Unlike most of the cases which have considered this issue, including Health Sciences North, this is not a discipline case, nor is it a case where the employer is defending itself for allowing a discriminatory workplace or from alleged bad conduct by managers. In those types of cases the employer’s interests and those of its witnesses (as in Health Sciences North) or “co-defendants” (as in the discrimination/harassment cases) are almost inherently aligned. If the employer is to win in the case it is reliant on the third party and must protect the third party’s interests as a consequence. This is reflected in Arbitrator Steinberg’s statement at paragraph 70 of his award that he could see “no possible conflict of interest between MC and the employer in the litigation before” him. [16] However, the case before me is different. There are two grievances. One of the grievances concerns alleged racial bias during the investigation of the Grievor’s claims which, in my view, is not relevant to B. In the second grievance, AMAPCEO and the Grievor seek a finding of fact that B intentionally assaulted the Grievor and a remedy for that finding as set out above. In the second grievance the employer is not attempting to sustain action it has taken and is not defending its conduct. The only reason it is really necessary to resolve the main factual issue is to determine whether it is an appropriate remedy for the employer to be ordered to ensure that the Grievor and B do not work together in the future. It is not difficult to imagine that in the circumstances the employer might come to that conclusion on its own. [17] The employer must recognize the possibility that I might come to a different factual assessment of the assault allegation than did its investigator. However, that can hardly be surprising to the employer given that I have more fact-finding tools to make my determinations than did the investigator, - 10 - particularly that witnesses will testify under oath and be subject to cross- examination by lawyers. However, the possibility that I may draw different conclusions than did its investigator is also likely not especially troubling to the employer since it took no disciplinary or other action against either of the employees involved in the incident. In these circumstances, it is difficult to see what serious interest the employer has in the fact-finding about the alleged assault. It has no real “skin in the game” with respect to the real factual issue and the way it litigates may well reflect that. [18] On the other hand, B has an obvious significant interest in the fact-finding. The allegations against her are serious: she is alleged to have assaulted a co-worker. If the allegations are proven, they could have an impact on her ability to earn a livelihood, particularly in the OPS. Given that the Grievance Settlement Board is deemed to be “one board” it may be that findings made against her or the remedy imposed cannot be challenged in any other way. B will essentially be “stuck” with the result without having had a chance to defend herself directly. [19] In addition, unlike in the cases relied on by AMAPCEO, including Health Sciences North (where Arbitrator Steinberg found MC did “not have a legal interest” that could be adversely affected by the outcome of that proceeding), the third party in this case (and indirectly OPSEU) stand to lose rights under the OPSEU collective agreement which benefit B if I grant the remedy which AMAPCEO seeks. Ever since the decisions in the seminal cases of Re Bradley and Ottawa Professional Fire Fighters Assn. (1967), 1967 CanLII 160 (ON CA), 63 D.L.R. (2d) 376, [1967] 2 O.R. 311, 67 C.L.L.C. para. 14,043 and Re Hoogendorn and Greening Metal Products & Screening Equipment Co. [1968] S.C.R. 30, 67 C.L.L.C. para. 14,064 the right of individual employees to appear in an arbitration as a party despite being represented by the union participant in the arbitration has been recognized in certain limited circumstances. Those circumstances include, according to the Court in Bradley at para 16, the right to continued - 11 - enjoyment of collective agreement benefits where their union is seeking to deprive them of those benefits. I find that reasoning persuasive here. B has benefits under the collective agreement which include protection vis a vis discipline and, presumably, rights respecting her place of employment, each of which could be affected by my award on the merits. If the employer were to have transferred B as a response to the Grievor’s grievance B would have been entitled to grieve that decision including challenging the factual basis for the employer’s decision. If the same thing happens as a consequence of a remedy I grant in this case she may well not have the right to grieve as my award may be a complete answer to any grievance. In my view, she is accordingly entitled to participate in this proceeding in order to protect her collective agreement rights. [20] That being said, I am mindful of the risks associated with permitting B and OPSEU to participate in this proceeding and, at this point make the following directions: 1) B will not be a party to AMAPCEO’s challenge to the employer’s investigation. B’s right to participate in the hearing is limited to the “incident” and the remedy, if any, which might affect her as a result of my factual finding. 2) I will be strident in preventing duplication of evidence and argument during the hearing. 3) I remit the issue of B’s presence in the hearing room to the parties. If the parties are unable to resolve the situation in a way which protects the Grievor’s health I will hear submissions on a conference call. Dated at Toronto, Ontario this 24th day of September, 2019. “Brian McLean” Brian McLean, Arbitrator