HomeMy WebLinkAbout2017-0441.O'Flaherty.20-12-08 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# 2017-0441; 2017-1396; 2017-1397; 2017-1399; 2017-1401
UNION# 2017-0302-0043; 2017-0302-0057; 2017-0302-0058; 2017-0302-0060; 2017-0302-0062
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(O’Flaherty) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Gordon F. Luborsky
Arbitrator
FOR THE UNION
Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Andrew Lynes
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING December 4, 2020
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DECISION
[1] The background to this dispute is set out in my preliminary Decision dated October
24, 2018 [reported at 2018 CanLII 109253 (ON GSB)], which need only be summarized
generally.
[2] The Union originally filed seven grievances before the Grievance Settlement Board
(hereinafter “Board” or “GSB”), withdrawing one, thereby leaving six for adjudication. In
broad terms they all allege violations of the Employer’s obligations under the collective
agreement and occupational health and safety legislation to take all reasonable steps to
ensure a safe working environment for the Grievor, who is a Probationary Officer
employed at the Ajax-Pickering Probation and Parole Office.
[3] In my earlier preliminary Decision, I addressed a number of challenges by the
Employer to the Union’s statement of particulars and the remedies demanded in relation
to the first of these grievances (“Grievance No. 1”). Those challenges consisted of three
types: claims that some of the particulars referred to assertions of fact that occurred more
than three-years prior to the date of the grievance (contrary to the Board’s “three-year
rule”); that a number of the allegations went beyond the scope of the grievances; and
some of the requested remedies were of a general or policy nature as opposed to the
Grievor’s individual interests. Based on my ultimate determination of those challenges, I
directed the parties (in para. 45) to “review the written objections raised by the Employer
to the additional particulars (and demanded remedies) filed in the course of these
proceedings, with a view to resolving those objections having regard to my determinations
on the application of the Board’s three-year rule and the proper scope and/or expansion
of each grievance, as may be applicable to all of those grievances.”
[4] The parties have for the most part been successful in that endeavour, leaving only
four disputes concerning the remaining particulars for adjudication. The issue in all of
those is whether the Union’s particulars go beyond the scope of the specific grievance
under consideration. Referring to my earlier review of the applicable legal principles at
paras. 25 – 28 in the preliminary Decision, the Employer argues that the challenged
particulars must be struck because they represent an improper expansion of the
applicable grievance contrary to the Board’s practices (referred to in OPSEU (Brown-
Bryce et al) and Ontario (Ministry of Community Safety and Correctional Services), GSB
#2014-1158 (2016) (Dissanayake) and OPSEU (Laderoute) and Ontario (Ministry of
Community Safety and Correctional Services), GSB #2014-0029 (2018) (Gee). In
response, the Union relies primarily upon the Ontario Court of Appeal’s decision in Blouin
Drywall Contractors Ltd. v. C.J.A., Local 2486, standing for the proposition that
grievances, “should not be won or lost on the technicality of form” (per Brooke J. A. at
para. 10) but rather “should be liberally construed so that the real complaint is dealt with
and the appropriate remedy provided to give effect to the agreement provisions” (at para.
11).
[5] As noted at para. 28 in the preliminary Decision, in considering the authorities
referenced by the parties I was influenced by the observations of Arbitrator Rayner in Re
Electrohome Ltd. and I.B.E.W., Loc. 2345 (1984), 16 L.A.C. (3d) 78 (Ont. Arb.), who wrote
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the following at p. 82 in reconciling or balancing a flexible approach with the expectation
that parties must be held to the substance of a dispute as expressed in the submission of
the grievance to arbitration:
Although the value in maintaining a flexible approach to grievances filed before a
board of arbitration is readily apparent in so far as the parties are not operating
under the same rules of practice that would guide counsel in normal litigation, there
is another value that must be kept in mind. The whole process of grievance
arbitration, and grievance procedure, is designed to permit the parties at the earlier
stages to resolve the dispute between themselves. Hence, collective agreements
invariably contain grievance procedure provisions so that grievances are funneled
to an arbitration board only after the parties have had a chance to resolve the
matter. It is our view that the comments of Professor Laskin and the decision in
the Re Blouin Drywall case attempt to accommodate both values. If the issue
raised at the arbitration hearing is in fact part of the original grievance, a
board of arbitration should not deny itself jurisdiction based on a technical
objection as to the scope of the original grievance. To do so would deny the
value of flexibility and would be to compel the parties to draft their grievances with
a nicety of pleadings. On the other hand, if the issue raised by one of the
parties is not inherent in the original grievance, for the board to permit the
party to raise that issue as part of the original grievance would be to deny
the parties the benefit of the grievance procedure in an attempt to resolve
the issue between themselves. In fact, it would be to permit one party to
substitute a new grievance for the original grievance.
[Emphasis added]
[6] Applying the foregoing balancing process, I have assessed each of the remaining
disputes between the parties on the question of whether the particulars submitted by the
Union are beyond the scope of the specific grievance at issue, for the brief reasons set
out below:
Grievance No. 2 (regarding providing clarity re: prohibited items): Para. 63 –
Employer’s failure to require offenders to be searched.
[7] Grievance No. 2 (2017-0302-0057) dated June 22, 2017, alleges that:
The Employer has violated articles 2, 9 and any other relevant articles for
failing to provide clarity with respect to prohibited items (primarily what
constitutes a coat, but not limited to that) entering the service area of the
office. Failure to comply with policy. Failure to provide lockers that work.
[8] The “settlement desired” on the grievance form is:
To be made whole including but not limited to clarity with specific examples
provided concerning “coats” etc. To have the specific underlying reason why
they are identified. To state something to the effect “to remove the
possibility of hiding weapons” is insufficient as this Employer is aware of
how weapons may be concealed.
[9] In connection with the above grievance and remedial request, para. 63 of the
Union’s particulars states:
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60. The Grievor takes the position that an “active and dynamic” control
to prevent weapons from entering the office would require that all P&P
[“Probation and Parole”] clients be searched for weapons prior to entering
secure areas of the office. The current system places the obligation, and
near-absolute trust with offenders to comply with passive means (i.e.
signage) to place bags, coats and belongings which may include hidden
weapons into lockers. Clients should be searched for weapons prior to
entering the secure area. The current setup poses an unacceptable risk to
the health and safety of P&P staff. As it stands, if an offender has a weapon,
workers must defend themselves or come to the aid of a co-worker.
[10] In my opinion, these particulars expand the scope of Grievance No. 2 beyond what
is reasonably contemplated or incorporated within a broad reading of the words used on
the grievance form. A plain reading of those words supports the conclusion that the
Grievor is challenging the “clarity” surrounding the identification of specific items that are
prohibited from the Grievor’s working area, with emphasis on a better or clearer definition
of what constitutes a “coat” and like items (implied by the term “etc.”) from that list. The
focus of the particulars in para. 63 is the alleged obligation of the Employer to physically
search clients in an “active and dynamic” manner to prevent the weapons from entering
the office; which is beyond seeking mere “clarity” with the identification of the “prohibited
items” sought in the grievance.
[11] Consequently, para. 63 of the particulars must be struck for that reason.
Grievance No. 5 (risks posed by unassessed offenders): Para. 160 – No mechanism
to assess collateral contacts.
[12] Grievance No. 5 (2014-0302-0060) is also dated June 22, 2017. It alleges:
The Employer has violated article 1 (and all other relevant articles) of the
collective agreement in failing to identify potential risk to staff by “unknown”
or unassessed offenders and failing to take reasonable precautions
consistent with similar workplaces. The Employer has failed to develop an
assessment tool and train staff / communicate risk to staff as has been done
in other similar workplaces (OPP – …).
[13] As remedy the grievance requests that the Grievor, “be made whole including but
not limited to developing an assessment tool to identify risk to staff by offenders.
[14] The following statement in para. 160 of the Union’s particulars is challenged by the
Employer for allegedly being outside the scope of the grievance:
160. Furthermore, there is no mechanism for PPOs [“Probationary and
Parole Officers”] to formally assess the potential risk a member of the public
(collateral contact) may pose as PPOs have no legal right to conduct any
form of investigation on them. PPOs are required to interact with collateral
contacts (e.g. family members) as part of their duties, and many of these
collateral contacts may be just as, if not more difficult to deal with, and pose
just as much, if not more risk of violence than the actual offender. However,
PPOs are unable to conduct any form of background check, or to even look
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a person up who may have a history or record with PPO or MCSCS
services. As with offenders, members of the public are treated as posing
no risk to staff until specific acts prove otherwise and only then can we
respond. This poses a risk to the health and safety of PPOs.
[15] In my view, Grievance No. 5 is framed to sufficiently encompass the assertions in
para. 160 of the Union’s particulars. The essence of the Grievor’s complaint on the
grievance form is that unreasonable risk is associated with “unknown” persons or
“unassessed offenders” who the Grievor may need to have contact with in the course of
performing his duties for the Employer. Such individuals logically may include family
members or friends of an offender who is required to report to the Grievor at his P&P
office. The Grievor’s complaint that the Employer has allegedly failed to develop “an
assessment tool” to appropriately identify such potential dangers would appear to be
included among the circumstances broadly subsumed by this grievance. While the
references to other workplaces where such policies are in place are not identified in the
grievance (which is claimed to support the Grievor’s position on the matter), they are
available to the Employer if required.
[16] Consequently, the Employer’s objection is denied. Paragraph 160 remains within
the statement of particulars for Grievance No. 5.
Grievance No. 7 (Employer’s direction to staff re: do not attempt to physically
restrain or detain physically assaultive clients): Paras. 201 – 206 – Allegation that
managers and supervisors have not completed the PST [“Personal Staff Training”]
program).
[17] This grievance (2017-0302-0062) dated June 27, 2017 is lengthy and the relief
sought is wide-ranging. It and the remedies requested are set out in their entirety below:
Statement of Grievance
Policy recognizes that by the nature of the offenders we work with, staff are
placed at an increased risk to injury as a result of violence. The employer
has created a response to violence that focuses on limiting corporate liability
while increasing personal liability and risk to staff. The employer has
created a confusing mess of contradictory direction and training to staff that
makes the determination of an appropriate and reasonable staff response
virtually impossible.
I grieve the employer has knowingly, or ought reasonably to have known,
they have violated articles 2, 3, 9 and all other relevant articles of the
Collective Agreement, failed to meet their obligations under the
Occupational Health and Safety Act, removed staff rights as a citizen under
the Criminal Code of Canada by establishing and directing staff response
to an offender with a profiled behaviour that is, or is likely to be, assaultive
or worse, that it is also contradictory to staff Personal Safety Training
[“PST”]. Direction to staff removes and/or limits their rights to defend
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themselves or to come to the aid of another person to prevent or repel force
if assaulted. Direction to staff places us at far greater risk to injury and/or
potential personal liability in the event force is required to defend oneself or
to come to the aid of another person.
Furthermore, both policy and practice fails to take into consideration the
potential physical restrictions a person may have in responding to an
offender with a profiled behaviour that is, is or is likely to be assaultive,
because they have failed to identify any physical standard consistent with
responding to a hostile offender yet still directs staff to go towards the
potentially violent situation.
Training identifies that staff’s decision to use for is that of a “citizen” sec. 25
CCC, yet our Officer Safety and Security manual states “Staff shall not
attempt to physically restrain or detain any client” and that staff response
shall be “controlled, non-physical”. This removes our rights to defend
ourselves or to come to the aid of any person who is being, or may be
assaulted. Furthermore it also removes our legislated rights under
“Citizen’s Arrest and Self Defence Act” to restrain a subject when the Use
of Force Management Model also identifies this as an appropriate staff
response to limit the damage or injury.
Furthermore, the Safety and Security Manual makes the assumption that
the profiled behaviour of the subject will not escalate beyond “Physically
Uncooperative” and direction to staff limits what may otherwise be an
appropriate response without providing a mitigating alternative to a subject
with a profiled behaviour of “Assaultive” or worse.
Furthermore, the Safety and Security Manual identifies that an appropriate
staff response with respect to numbers responding, exceeds the minimum
number of staff required for the office doors to be open and/or offenders
and collaterals to be allowed into the secure area of the office.
Furthermore, the employer has placed senior management in oversight of
the risks we face who are incompetent by definition of the OHSA.
Resolution Sought
• Removal of current existing senior MCSCS management or limitations
placed on their direct until competent employer representatives can be
identified.
• Immediate third party review and implementation of an Interim Ajax-
Pickering Probation and Parole response to an Assaultive (or worse)
offender and/or other party pending a Ministry wide review of policy and
training.
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• Immediate armed security officer with appropriate training and ability to
respond to an Assaultive (or worse) offender and/or other party until the
direction to staff is clarified appropriately.
• That there be clarity with respect that there is an expectation for staff to
physically intervene to aid another person.
• Determination of physical standards and expectation of staff so that
restrictions can be identified in the event an accommodation is required
to determine the appropriate staff response with respect to potential
duties or roles.
• Creation of a Use of Force Management Model for Community
Corrections that realistically represents how we interact with ourselves,
the public and offenders and more accurately reflects the limitations the
employer has placed on staff or the removal of those limitations and new
policy and training developed to address such.
• A new policy is developed that addresses the removal of our rights as a
citizens (sic) to defend ourselves or to come the aid (sic) of another
person or removal of those limitations and a new policy and training
developed to address such.
[18] Paragraphs 201 – 2016 of the particulars is challenged by the Employer as beyond
the scope of the foregoing grievance. They are reproduced as follows:
201. For many years, managers and supervisors have not been required
to complete the Personal Safety Training Program and most do not know
what the program entails. However, they are expected to assume a
leadership position in a crisis situation.
202. In the event of an incident at Ajax-Pickering, a manager, by nature
of the position shall assume a leadership role in coordinating staff response.
If the manager is not trained in the same method as PPOs or Support Staff,
their direction may be contradictory to the direction in PST. As an example,
AM [A.S.], recently returned from other duties and assumed supervision at
Ajax-Pickering, but for months did not have the training. Yet, he still made
decisions that had the potential to directly impact employee-offender
interactions.
203. Furthermore, the Grievor’s MOL complaint with Inspector [C.], the
Grievor provided specific detailed explanation as to why he felt then acting
Area Manager [C.M.] was not qualified to make determinations as to staff
response to hostile offenders or in support of the PST program as he himself
had not taken the instruction. As such, these matters are part of an
unresolved process which has been unreasonably delayed.
204. As detailed previously and can be identified as historical background,
the managers and directors assigned to CSHSWG to resolve safety issues
did not have PST training yet made decisions on behalf of the employer with
respect to potentially remedying concerns raised. They had been extremely
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critical of the issues I tabled without having any idea what I was talking
about. All of these have bene documented numerous times in my previous
attempts to resolve concerns.
205. Management members on the Provincial JOHSC, MERC, TD and
later the CSHSWG are therefore unfamiliar with the training, yet dismissed
worker/employee concerns with the training. This evidenced the employer’s
lack of attentiveness and concern to staff health and safety. This was one
of the cornerstone issues that caused the Grievor to file this MOL complaint
and these grievances.
206. Since filing the MOL complaint and these grievances, the training is
still not mandatory for manager; however, the Grievor acknowledges that
many managers do take the training. However, the Grievor maintains his
position that the training not being mandatory for managers is unacceptable
and poses a risk to staff health and safety.
[19] Among the duties of an employer under the Occupational Health and Safety Act,
R.S.O. 1990, c. O.1, as amended, sec. 25(2)(c) is to ensure that “when appointing a
supervisor” it selects “a competent person”. The last sentence in the grievance makes
the assertion that, “the employer has placed senior management in oversight of the risks
we face who are incompetent by definition of the OHSA”. As the issue of the insufficient
competency of the managers and supervisors who direct the Grievor’s activities in
potentially “assaultive (or worse)” situations with offenders is claimed in the grievance, it
is my assessment that questions surrounding the sufficiency of training for those
personnel are captured by the broad terms of Grievance No. 7, which is directed at the
adequacy of the policies intended to safeguard PPOs in their interactions with potentially
violent offenders. Inasmuch as the particulars in paragraphs 201 – 206 address those
concerns and potential demands for their remedy (as it may affect the Grievor personally)
I conclude they are within the scope of the grievance.
[20] Consequently, the Employer’s objection to the inclusion of these particulars is
denied. The Union is entitled to rely upon those particulars.
Grievance No. 7 (Employer’s direction to staff re: do not attempt to physically
restrain or detain physically assaultive clients): Paras. 226 – 227 – Allegation that
new hires have no training in safety, and Grievor could be at risk if required to help
them.
[21] Paragraphs 226 – 227 of the particulars state:
226. New hires supervise offenders with no training in safety. In many
cases, they have not been introduced to any skills or tools. There is a
possibility that the Grievor would have to be one of the responding staff
members in the event an offender becomes hostile when interacting with a
new hire. Numerous Ministry policies identify the value in any experienced
PPO mitigating the risk of potentially hostile offenders.
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227. While it is common practice that when operationally feasible, or at
the Area Manager’s discretion, certain offenders posing an elevated risk not
be supervised by inexperienced PPOs, there is no policy in place which
directs that this must occur. At Ajax-Pickering, there is no time where this
could not be implemented given the staffing levels.
[22] The focus of Grievance No. 7 is on deficiencies and/or confusion in the policies
governing a PPOs response to a violent offender (including questioning the adequate
training of senior managers/supervisors to oversee the risks and response to such
circumstances). That is not in my view the focus of the allegations in paras. 226 – 227,
which address supposed deficiencies in the training of new hires which the Grievor claims
may place him at risk if he is required to come to their aid. As such, those allegations are
outside the scope of the grievance.
[23] Therefore, the Employer’s objection is sustained and those two paragraphs must
be struck.
Concluding Directions
[24] As reviewed with the parties at the conclusion of the oral hearing into the above
matters, it is my intention to tightly case-manage this litigation, into what amounts to six
grievances covering a wide range of issues related to the Grievor’s health and safety
allegations.
[25] With the disputes concerning particulars now dealt with, counsel for the parties are
directed to develop a “Plan” for the orderly hearing of this dispute. The Plan will include
an outline of what specific grievances (and issues therein) will be addressed by which
anticipated witnesses, and the likely ordering of the evidence.
[26] Among the matters for the parties to also include in their Plan, are the documents
to be admitted on consent (and duly exchanged in advance); copies of documents that
while not mutually agreed upon (and will require proof) to the extent they are relied upon
by either party to the dispute they must be disclosed to the other side in order to limit
“surprise”; full or partial written agreements of facts on areas not in dispute; the
preparation of “will-say” statements (if acceptable to reduce the amount of hearing time);
culminating in a “litigation timetable” so that on any day of the hearing the parties will
know what evidence is being proffered and what witnesses will be required. The parties
are also directed to cooperate in the efficient planning for any expert witnesses, senior
management and/or on-duty worker personnel, etc., in order to limit the inconvenience to
operational and personal needs.
[27] If the parties have difficulties concluding their Plan, they may schedule a brief
telephone and/or videoconference with me to efficiently resolve outstanding issues. Once
the Plan is completed the parties will contact the Registrar to schedule an appropriate
number of hearing days contemplated by their Plan. The final Plan will be filed with me
in advance of the first day of the hearings on the merits.
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[28] I will continue to remain seized of any disputes between the parties respecting the
interpretation of the foregoing rulings and any difficulties in agreeing upon future steps in
these proceedings.
Dated at Toronto, Ontario this 8th day of December, 2020.
“Gordon F. Luborsky”
_________________________
Gordon F. Luborsky, Arbitrator