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HomeMy WebLinkAbout2021-0702.Ceballos.21-11-02 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-0702 UNION# 2021-0229-0044 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ceballos) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian Sheehan Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Daniel DiCroce Treasury Board Secretariat Employee Relations Advisor HEARING October 19, 2021 -2- DECISION [1] The Employer and the Union at the Ontario Correctional Institute (OCI) agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and, as such, it is without prejudice or precedent. [2] Adrian Ceballos (the “grievor”) is employed as a Correctional Officer 2 at OCI. His date of hire was June 17, 1999. [3] On April 11, 2021, the grievor sent a brief email to Staff Services Manager David Ruttle. In that email, the grievor indicated that he supported a coworker with respect to the coworker's "ongoing issues at OCI". The email went on to reference a human rights tribunal decision that the grievor suggested Mr. Ruttle might be interested in reading. Attached to the email was an Internet article referencing a decision of the British Columbia Human Rights Tribunal that ordered the Government of British Columbia to pay a substantial monetary remedy, including a "record-shattering" amount for injury pertaining to dignity, feelings, and self-respect to a British Columbia Corrections Officer. [4] On May 26, 2021, the grievor received a Letter of Expectation with respect to the tone and content of his April 11, 2021, email to Staff Services Manager Ruttle. The Letter sets out the Employer’s concern regarding the April 11, 2021, email as follows: Mr. Ceballos, as an employee of the Ministry of the Solicitor General, you must be mindful of the content and undertone of all communications with the Employer. It is inappropriate and unprofessional to send unsolicited emails containing legal decisions to a member of management that may directly deal with an ongoing matter in which you are not involved in. In the future, I expect that you will refrain from sending unsolicited emails containing legal decisions for matters that you are not involved in and that you maintain professionalism in all correspondence with the employer. As you know, you were recently counselled on sending an email to -3- management with inappropriate and unprofessional undertone and content. I expect you to learn from this and behave appropriately in your correspondence with the Employer moving forward. It is the Employer's expectation that you comprehend the seriousness of your misconduct. I encourage you to carefully reflect on your actions and to conduct yourself in accordance with standards of behaviour consistent with the principles of our Ministry policies and procedures including but not limited to the Respectful Workplace Policy. This letter is not disciplinary and will not be kept on your corporate file. This letter is simply meant to reinforce the Employer's expectations of you. [5] The grievance filed by the grievor claims that he has advocated for equity and fairness in the workplace since he joined the Ontario Public Service. It was also noted that the grievor has had email exchanges in the past with members of management over a variety of human rights issues. Moreover, the Union and the grievor asserted that the email in question was rather innocuous in nature, and that there is nothing inherently inappropriate with an employee bringing a legal decision to the attention of a supervisor. [6] Arguably, the start and endpoint of the analysis as to the merits of the grievance relates to the fact that the issue being addressed is a Letter of Expectation issued to the grievor. In this regard, since a Letter of Expectation is non-disciplinary in nature, the Employer does not have to establish that there was just cause for the issuance of the Letter. Nor does an arbitrator have jurisdiction to assess whether, in fact, the Employer has established just cause with respect to the issuance of the Letter. The quid pro quo of a Letter not being subjected to a just cause assessment is that an employee who chooses not to grieve or chooses to withdraw a previously filed grievance regarding a Letter of Expectation should not necessarily be viewed as being in acceptance of the underlying facts relied upon by the Employer. Nor should it be interpreted that the employee is in agreement with the Employer's determination that his/her behaviour was inappropriate. That is— the purpose of the Letter of Expectation is to simply advise the employee that the Employer expects that the employee will act in a certain manner in future and puts the employee on notice that if he fails to act in the manner outlined by the Employer, then discipline may flow. In terms of future discipline issued to the employee, the function of the Letter of Expectation is solely relevant for the purpose of the Employer rebutting any claim by -4- the employee that he/she had not been put on notice that the behaviour in question would be deemed inappropriate. Accordingly, it is my view that it would be inappropriate to assess the overall appropriateness of the issuance of the Letter of Expectation. [7] In fairness to the grievor, the grievance also asserts that the issuance of the Letter of Expectation was a result of anti-union animus on the part of the Employer. The quick rebuttal to that point is that the grievor is not a union official and was not acting in a union capacity with respect to his April 11, 2021, email. Therefore, it is difficult to appreciate, in any way, the assertion that the Employer’s action was in some manner an attack on the integrity or the legitimacy of the Union, or that it interferes with the exclusive representational rights of the Union. [8] The grievance also claims that the Letter of Expectation constituted bullying and harassment by the Employer. It is noted that with respect to this point, the grievor filed a complaint under the Employer’s Workplace Discrimination and Harassment Prevention Policy subsequent to the issuance of the Letter of Expectation. While not commenting upon the merits of that Complaint, or the grievor’s overall relationship with the Employer, it is difficult, based on the underlying facts, to come to the conclusion that the issuance of the Letter, in itself, constituted bullying and/or harassing behaviour, on the part of the Employer. [9] In light of the above reasoning, the grievance is, hereby, dismissed. Dated at Toronto, Ontario this 2nd day of November 2021. _____“Brian Sheehan”_____ Brian P. Sheehan, Arbitrator