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HomeMy WebLinkAboutBrestovanska 21-06-14 In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act Between: LifeLabs -and- Ontario Public Service Employees Union, Local 389 Grievance of Natka Brestovanska OPSEU File No. 2019-0389-0039 Arbitrator: Randi H. Abramsky Appearances For the Union: Emily Cumbaa Grievance Officer For the Employer: Brian O’Byrne Counsel Hearing: May 31, 2021 via videoconference and written submissions provided on June 1 and June 4, 2021. 2 AWARD 1. On August 16, 2019, the Grievor, Natka Brestovanska, filed a grievance alleging that her Manager made an inappropriate comment during a job interview on July 31, 2019, and that the Supervisor in attendance “giggled” at the comment. The grievance asserts that this comment violated the collective agreement, the Ontario Human Rights Code and internal policies. The Employer denies that the comment was made by the Manager, or that the Supervisor responded as alleged. Facts: Background 2. The Employer, LifeLabs, is a provider of laboratory testing, operating numerous facilities in Ontario and elsewhere in Canada. The Grievor was hired in 2014 as a regular part-time Medical Lab Technician. In the summer of 2019, she was supervised by Wendy Cake, Client Services Supervisor and her Manager was Joshua Mackay, Client Services Manager. 3. A position for a full-time Medical Lab Technician was posted in the summer of 2019, and the Grievor applied for it. After screening by Human Resources, the Grievor was interviewed for the position on July 31, 2019. Present at the interview were the Grievor, Manager Mackay and another Client Services Supervisor, Monika Aitchison. Both the Grievor and Ms. Aitchison testified that before the interview, they had only met once, briefly. 4. The Grievor testified that, prior to the interview, she had a “basic” working relationship with Mr. Mackay. There was “not a lot of one-on-one time” since he worked elsewhere. She occasionally saw him at meetings. On cross-examination, she acknowledged that their prior working relationship was “fine”. She acknowledged that she never had issues with him before this. 3 The July 31, 2019 Interview and Investigation 5. According to the Grievor, the interview was “relaxed” and followed, for the most part, the manner in which prior interviews she had attended worked – with the interview conducted by a Manager and a Supervisor, asking questions related to the job. 6. The Grievor testified that one question dealt with a “chatty customer” who did not want to leave – how would she handle, politely, getting them to leave without abruptly showing them the door. She did not say who asked the question. She testified that Mr. Mackay then “giggled” and said that’s “what I used to do with women as a bachelor in my twenties when I was done with them .” He “showed them the door.” She stated that the Supervisor, Ms. Aitchison then “giggled.” She answered the question, and “we moved on.” She stated that the remainder of the interview seemed normal, with questions relevant to the job. It was “very straightforward.” The interview was completed, and she left. 7. She testified that the comment made her “very uncomfortable” as she found it to be “derogatory to women, to me and Monika.” It was “very unwelcomed.” Although she stated that she mentioned what happened to other employees (who were not named), she did not report what had occurred to management until after she learned about the result of the competition, and she filed the grievance on August 16, 2019. The grievance states: “I grieve the employer has violated the collective agreement, Ontario Human Rights Code and internal policies, by making comments [that] ought [to have been] known to be unwelcome during my interview held July 31, 2019.” 8. When asked, on cross-examination why she waited to report it, she stated that women do not come forward because people “don’t believe women.” She knew that if she reported it, there would be repercussions for her; it would impact her life and income. 9. Upon receipt of the grievance, management asked for more details and clarification. On August 26, 2019, Union President Renee Aiken Kearsley responded. According to the investigation report, Ms. Kearsley responded that the Grievor alleged as follows: 4 The interview was being conducted and the question was asked “what to do if a patient doesn’t want to end the conversation at the end of your service, how do you get them to leave or remove yourself without showing them the door abruptly?” The comment made by Josh was “that’s how I handled getting all the women to leave my apartment in my 20s” and Monika giggled at his comment. 10. On August 28, 2019, based on the allegations, the Employer arranged for an investigation to take place which was conducted by Senior Human Resources Manager Connie Gourmos. 11. According to the investigation report, Ms. Gourmos interviewed Manager Mackay by telephone on September 5, and Supervisor Aitchison, also by telephone. She interviewed the Grievor, who was accompanied by a Union Representative, on September 13, 2019. In terms of the interview with the Grievor, the report states, in relevant part: The interview on July 31, 2019 was informal based on the comments made. During the interview, Monika went very heavy on asking if Natka is capable of getting along with people. And then Josh’s comment about showing girls the door after he’s done with them in his early 20s as a bachelor. There was a behavioural question stating how one would ask a patient to leave if they have been at the PSC for too long and holding up others. Natka then stated that both Monika and Josh were taking notes during the interview and wrote down the answers she responded with. … With respect to the alleged comment made by Josh, Natka stated that both Josh and Monika looked at each other and giggled. Natka herself just looked at Josh and didn’t acknowledge the comment and proceeded to answer the question. … When asked if she has witnessed similar behaviour in the past involving the same individual(s), Natka stated that Josh tends to be somewhat inappropriate but did not wish to elaborate further as she wanted to focus on this specific incident. 12. The investigation report indicates that Mr. Mackay did not recall asking a question concerning how to get a patient to leave without showing them the door abruptly, but “did not see any concerns 5 with this type of question being asked during an interview.” Nor did he recall whether Ms. Aitchison did so. He stated that they asked the same questions of all the candidates, although there were some individual follow-up questions. The report states: “When Josh was asked if anything specific stood out during Natka’s interview, he responded that it was not a very good interview and that she does not have the greatest attitude, however, they went through the interview professionally and it was no different than anyone else’s.” The report continues: Josh was asked if he recalled making the following comment after asking the interview question (“that’s how I handled getting all the women to leave my apartment in my 20’s”); he confirmed that he did not recall, but was able to say 100% that he did not say something along those lines. He acknowledged that he and Monika were trying to keep the tone of the interview light, and sometimes light jokes were shared, but nothing inappropriate. At no point did Josh sense a feeling of being uncomfortable, and that Natka was engaging in conversation and laughing at times during the interview; nothing seemed out of the ordinary. 13. In regard to Supervisor Aitchison’s interview, the investigation report states that she did not recall a question being asked about “what to do if a patient doesn’t want to end the conversation at the end of your service, how do you get them to leave or remove yourself without showing them the door abruptly?”, but that it “could have been posed” and believed that “there is nothing out of the ordinary asking a candidate how they would handle this type of situation”. The question “could have evolved from one of the questions in the interview guide.” 14. She was asked whether she recalled Josh making the following comment (“that’s how I handled getting all the women to leave my apartment in my 20s”). The report states: [S]he confirmed that she did not recall that comment being made, and believed it is unlikely that it was made, because neither Josh or Monika have a relationship with Natka to have this type of conversation. Monika said that if that comment was made, she did not “giggle” and that it is completely unacceptable to her and [she] would not tolerate such behaviour no matter what relationship she had with the other interviewer involved. 6 15. The report also notes: “According to Monika, both her and Josh handled themselves courteously and respectfully to all candidates, and wouldn’t have made any comments or statements during the interviews”. 16. Based on the three interviews, the investigator concluded that “it cannot be substantiated that the alleged question and comment were made by Josh during the interview on July 31, 2019.” 17. The investigator noted that she also reviewed the completed interview guides, which provided “no further information/detail to suggest that a question of the sort was asked to the candidate.” Those completed interview guides were not presented at the hearing 18. At the hearing, Mr. Mackay testified that he knew the Grievor since she began working for LifeLabs about seven years ago. He did not have a lot of interaction with her, but about “the same as any other employee.” He concurred that, prior to these allegations, they got along “fine.” In terms of the interview, he could not recall if a question about getting a patient to leave was asked; he did not recall asking it. It was “possible” that Ms. Aitchison asked it, as customer service is important to the position. When asked if he made the comment alleged – that was what he “used to do with women as a bachelor in his 20s when he was done with them”, he stated: “No, I did not say that.” When asked if he said, “that’s how I handled getting all the women to leave my apartment in my 20s”, he stated: “No, I did not.” Nor did he make any comments along those lines. He further testified that he was not a bachelor in his 20s, but was in a relationship with his future wife, and they were co-parenting two daughters. 19. Mr. Mackay was also asked, on examination-in-chief, whether Ms. Aitchison “giggled” during the interview. He did not recall any giggling, although at times, during interviews, there could be “light jokes”, but he did not recall it there. On cross-examination, he acknowledged that giggling can happen during an interview. He agreed that if the comment was made, it would be “inappropriate.” At the time of the hearing, he had been at LifeLabs for about 25 years, and between 11-12 years as a Manager. 7 20. Supervisor Monika Aitchison began working for LifeLabs in January 2019. She was in an interim position as Client Services Supervisor, filling in for a maternity leave. She testified that at the time of the interview on July 31, 2019, she had worked for Manager Mackay for “only a month or two”; prior to that, she worked for another Manager but had met him at orientation and at Manager meetings. She had only met the Grievor once, briefly, prior to the interview. 21. At the interview, both she and Manager Mackay asked questions. She did not recall a question about how to handle a patient who did not want to leave, but agreed that it was “possible” since the flow of patients is an important part of customer service. When asked if she heard Mr. Mackay say, “that’s how he got all the women to leave his apartment in his 20s”, she stated, “No, I do not recall Josh making a statement like that.” Nor did she recall any such statement being made, stating “absolutely not.” She viewed him to be “a man of integrity, a professional. He wouldn’t make such a comment in an interview.” She was also asked, if he had, what her reaction would have been, and she responded, that she “would have felt upset” and “would have spoken up – to Josh and Human Resources.” She “would not have stood for such a comment at a workplace.” 22. In terms of the allegation that she “giggled” in response, she stated, “No, I don’t giggle.” She added that she and Mr. Mackay do not have a “joking” relationship or make jokes with candidates during an interview. In her view, the “tone” of the interview was professional, but relaxed. She agreed that if the alleged comment had been made, it would have been “inappropriate.” 23. The Grievor testified that the comment had a significant impact on her. She was “very disgusted” and “very upset” and “hurt” by his comment. She no longer felt comfortable in Mr. Mackay’s presence; she did not attend staff meetings due to the “possibility that he would attend.” She decided to go back to school for a nursing degree, and changed her status from regular part-time to casual. She found the investigation flawed because it did not assess “probability” and “took a man’s word over a woman.” She did not want to work for an Employer who does not believe women, does not believe employees, and does not treat employees properly. 8 Reasons for Decision 24. This case presents a credibility challenge – a classic type of “he said/she said” which are wholly at odds with each other. The Union cites to Brown and Beatty, Canadian Labour Arbitration, at 3:5110, Assessing Credibility, which quotes from Re Faryna v. Chorny [1952] 2 D.L.R. 354 (B.C.C.A.), which is still relied upon to assess credibility. That case stands for the proposition that credibility cannot be judged solely on the “appearance of telling the truth” - although that is one factor. It depends on “[o]pportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard…” The Court stated: “The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” The Employer concurs with this standard. 25. In this case, the Grievor was adamant, on both examination-in-chief and cross-examination, that Mr. Mackay made the statement alleged. The Employer asserts that the comment changed from the outset – from the initial complaint – “that’s how I handled getting all the women to leave my apartment in my 20s” - to what she said at the hearing- “that’s what I used to do with women in my 20’s when I was done with them – showed them the door.” The investigation report, however, uses similar words in regard to the interview with the Grievor. Consequently, the evidence does not support a conclusion that the nature of the allegation materially changed over time. It appears to be consistent. 26. There is also little in the way of motive for the Grievor to create this allegation. There was no history of animosity between the Grievor and Mr. Mackay. They appear to have gotten along. It is true that she waited until she learned that she did not obtain the position to submit her grievance, but she did not grieve the outcome of the job competition; only the alleged comment. 27. Mr. Mackay, likewise, was adamant that he did not make the alleged comment – and his denial was also consistent throughout. Except for the alleged comment, Mr. Mackay’s testimony, the 9 testimony of the Grievor and the testimony of Ms. Aitchinson about the rest of the interview is remarkably similar. 28. Consequently, it is difficult to reconcile the testimony of the Grievor and Mr. Mackay. But they were not the only individuals in the room – Monika Aitchinson was also there. The Grievor characterizes her testimony as “I don’t recall”, leaving just her word against that of Mr. Mackay. That is not how I view it. In my view, Ms. Aitchinson’s testimony strongly supports Mr. Mackay’s denial. When looking at the inherent probabilities of the situation, I am persuaded that had words along the lines alleged to have been said by Mr. Mackay actually been said, Ms. Aitchinson not only would have recalled it, she would have responded – as she testified she would. She would not have “giggled” or laughed it off. She clearly viewed such a comment as inappropriate. 29. It is true that, at the time, she was on an interim assignment as Client Services Supervisor, and was relatively new to LifeLabs. But we are now more than two years later, and she was under oath when she testified. Her testimony was entirely consistent with her interview with the investigator. 30. I also find that it is unlikely that Mr. Mackay, a Manager with more than a decade of experience, would make such a comment during an interview with two women – both of whom he did not know well and who were subordinates. As Ms. Aitchinson testified, they had not worked together for long at the time, and did not have a “joking” type of relationship. In her view, both of them were professional during the interview. 31. There was also no evidence that Mr. Mackay was a “joking” kind of person, or has made inappropriate comments or jokes in the past, or engaged in any inappropriate behaviour. The Grievor suggested that was the case during the investigation, but would provide no details. No such evidence, at all, was presented at the hearing. Also, factually, he testified that he was not a bachelor in his twenties, but in a committed relationship with the woman who later became his wife and with whom he was co-parenting two daughters. These facts make it less probable that he would make the comment alleged. 10 32. In this case, the onus is on the Union to establish, on the balance of probabilities, that the Manager made the comment he is alleged to have made. Where two versions of events are plausible, onus matters. Where there is doubt, as there is here, the party with the onus cannot prevail. The Union must prove, on the evidence, that it is “more likely than not” that the comment was made. The evidence in this case falls short. 33. The Grievor was upset that the Employer’s investigation did not find in her favour and that the Employer believed the “man over the woman.” In her view, the investigation was flawed. The Union, however, has not suggested that any other employee in the department should have been interviewed or any further evidence that the investigator should have considered. The Grievor made a serious allegation. The Employer took the Grievor’s allegation seriously. They conducted an investigation, which provided the Grievor, the Manager and the Supervisor the opportunity to tell their side of the story. 34. It is, of course, possible that the comment was made. On the evidence presented, however, I am not persuaded, on the balance of probabilities, that he did. Accordingly, the grievance must be dismissed. Conclusion: 35. For all the reasons set out above, I am not persuaded that the Union satisfied its onus of establishing on the balance of probabilities, that the comment was made, as alleged. The grievance must therefore be dismissed. Issued this 14th day of June, 2021. /s/ Randi H. Abramsky _________________________ Randi H. Abramsky