HomeMy WebLinkAboutPyringer 22-06-30In the Matter of an Arbitration
Between:
SKILLED TRADES ONTARIO
(FORMERLY THE ONTARIO COLLEGE OF TRADES)
(the Employer)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 503
(the Union)
Re: Grievance of Joseph Pyringer - #2021-0503-0002
A W A R D
Paula Knopf – Arbitrator
APPEARANCES:
For the Employer: For the Union:
Landon Young, Counsel Hilary Cook, Grievance Officer
Shauna Moore Rottana Sparks
John Vander Doelen Joseph Pyringer
Melissa Sweeney
The hearing of this matter was conducted by way of a Video Conference on
June 16, 2022.
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This Award addresses the Union’s challenge to a letter of reprimand that was issued to
the Grievor for alleged insubordination.
To the Parties’ credit, the case proceeded without any disagreement about the relevant
facts.
At the time of the events concerning this case, the Employer was the Ontario College of
Trades. By statute, it has now become Skilled Trades Ontario, a Crown Agency. Its
mandate includes developing industry-informed training standards and examinations,
registering and monitoring apprenticeships, and issuing industry-recognized certificates.
The Grievor was hired as a Program Development Specialist in 2013. At all relevant
times, he was the Vice-President of the bargaining unit and a member of the Joint
Health and Safety Committee as well as the Employee Relations Committee. Both
Committees deal with matters of mutual concern to labour and management.
The events giving rise to this case occurred in April of 2021. The province was in the
midst of the Covid-19 pandemic. Federal, provincial and local officials were issuing
public advisories daily. The internet was flooded with information, misinformation and
disinformation. Toronto Public Health’s advice to employers included the following
message:
The COVID-19 vaccine, including a booster dose, is the best way to protect
against becoming seriously sick from COVID-19 and its variants. Vaccines
approved in Canada are safe and effective. They have been carefully studied
with billions of doses given around the world.
Promoting vaccination helps to increase workplace safety. Employers can
help encourage vaccination by making it easier for workers to get vaccinated,
and providing information from trusted sources. COVID-19 vaccination is an
important layer of protection for workers, their families and the community,
especially as public health measures such as capacity limits and physical
distancing are lifted.
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On Friday, April 19, 2021, the Employer’s CEO issued one of his frequent staff
“Updates”. This one dealt with some routine matters and then addressed Covid-19 as
follows:
The rising case counts of COVID-19 which regularly exceeded 3000 cases
per day for the past week has resulted in the province re-imposing a province
wide stay at home order. This no doubt is frustrating for all staff and their
families as well as the broader population. This is being combined with an
increasing availability of vaccines and refinements of the vaccination strategy
to include front line workers in high risk areas. I encourage you to consider
getting the vaccination when it becomes available to you. Recent increase in
infections serve as a reminder of the importance of public health measures to
limit the spread.
At that point in time, the vaccine was only readily available to people 55 years of age or
older.
In response to the staff Update, the Grievor sent an email to the CEO on Monday, April
12, 2021, copying Union and Management members of the Joint Health and Safety
Committee and the Employee Relations Committee (hereinafter referred to as ‘the
Committees’). The Grievor’s email began by stating that he had “concerns” about the
CEO’s Update to staff. The Grievor wrote:
I do not believe the college should be encouraging staff ‘to consider getting the
vaccination when it becomes available’, at least without providing information
regarding informed consent.
The Grievor’s email proceeded to set out a series of assertions and references to
support his belief that the available vaccines were ill advised. He said he wanted to
advise the CEO of the following “facts”:
• Brand New Technology
• Failure of Previous Coronavirus Vaccines
• No Animal Studies
• Known Complications
• Unknown Complications
• Pharmaceutical Companies are Immune from All Liability
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• An Experimental Vaccine is Not Safer than a Very Low IFR
• No Proof the Vaccine Stops Transmission of the Virus
• Unknown Mortality or Hospital Admission Benefit
• The Vaccine Lasts Unknown Duration
• The Data Has Not Been Independently Peer-Reviewed & Published
In addition, the Grievor summarized and attached links to websites that he said
supported his views. He ended the email as follows:
Considering the conflicting information, I again state that I do not believe the
college should be encouraging staff “to consider getting the vaccination when
it becomes available” and should not be giving medical advice by
encouraging staff to consider the vaccine when it becomes available. Please
immediately retract the highlighted portion below sent to all-staff and I
ask that the colleges refrain from any further promotions of the COVID-
19 “vaccines”.
Thank you for your prompt consideration regarding this matter,
Joseph
JHSC representative
VP Local 503
Within hours the same day, the CEO responded to the Grievor, also copying the
members of the Committees. The CEO expressed “surprise” about the Grievor’s
concerns, given the escalation of Covid-19 cases, especially in younger age groups.
While the CEO acknowledged that the “science of the vaccines continues to emerge ”,
he pointed out that the consensus of the medical community was contrary to what the
Grievor had set out as “facts”. The CEO concluded his email as follows:
Hospitalizations of individuals under 40 has [sic] significantly increased
recently and it appears to be linked [to] the emergence of new variants. The
College will continue to follow provincial and local guidance from our health
authorities in the development of policies and procedures to protect our staff.
We will continue to monitor such advice and update or revise these policies
and procedures as necessary.
Stay safe,
George
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The Grievor immediately responded, challenging the validity of the CEO’s statement
about the increase in hospitalizations, and continuing as follows:
Do you have any facts that the increase in deaths are due to COVID-19? Is
there any proof these “variants” have been isolated? In fact, some countries
[sic] governments, such as Ireland, have admitted that “COVID-19” has not
even been isolated? In fact, many nurses now are stating that the issues in
youth hospitalizations are more to do with the effects of isolation and
lockdowns than from a virus. How does this justify sending a staff email
telling them “to consider getting the vaccination when it becomes available”?
George, you are in a position of power and your words mean a lot; they have
a lot of influence. Now that you are aware of this information, I am asking that
you immediately retract the highlighted portion below sent to all-staff
and I ask that the college refrains from any further promotions of the
COVID-19 “vaccines”.
I understand that the college will continue to follow provincial and local
guidance from our health authorities in the development of policies and
procedures to protect our staff and will continue to monitor such advice and
update or revise these policies and procedures as necessary, but this does
not include you, as the CEO, to promote medical “encouragement” that could
be construed as advice to go get this “experimenta l vaccine”. You, or the
college management and board, are not medical physicians and should not
be giving the staff medical advice. Please retract.
Also, please confirm that our benefit provider will pay out on life
insurance claims for employees if death from vaccine complications
arise, or even if life insurance will be paid upon death if an employee
has died that received an experimental vaccine.
Thank you,
This ended the email chain.
The Parties agree that the Grievor was acting in good faith when he sent these emails
and that he had an honest belief about what he was saying with respect to Covid-19
issues. Further, it was agreed that he sent these emails without consulting the Union
members of the Committees or the Union executive.
Nevertheless, the Employer considered the comments and tone in the Grievor’s emails
to be insubordinate. The Grievor was issued a Letter of Reprimand that reads in part:
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… the tone and phrasing of your two August 12th emails to the CEO/Registrar
of the College of Trades, including underline and bold, were disrespectful and
insubordinate. It is inappropriate for you to expect any member of
management, including the CEO/Registrar to immediately retract information.
In addition, you copied other people in your emails which had the effect of
informing others of your criticism and disrespect of the CEO/Registrar and
causing some of those copied considerable concern related to their personal
COVID-19 experiences. Your behaviour was contrary to the Ontario College
of Trade’s [sic] Code of Conduct and specifically the Statement of Respect.
The relevant portion of the Statement of Respect mentioned above reads as follows:
STATEMENT OF RESPECT
The College strives to provide a work environment that is conducive to good
morale and high productivity. All members of the College community are
expected to treat co-workers and members with courtesy and respect and to
resolve any conflicts or disagreements in a professional, non-abusive, and
non-threatening manner.
All members of the College community are responsible for our behaviour and
for understanding how others may perceive our conduct in the workplace.
Disruptive, unruly, or abusive behaviour by employees in the workplace will
not be tolerated. Inappropriate conduct includes verbal or physical threats,
fights, and abusive or intimidating language or behaviour, as well as any
other abusive conduct.
A Summary of the Submissions of the Parties
The Submissions of the Employer
The Employer submitted that the Grievor’s emails were insubordinate, violate the Code
of Conduct and warranted the Letter of Reprimand. It was asked that the grievance be
dismissed.
The Employer stressed that the well-established arbitral caselaw recognizes that
insubordination includes defiance or disrespect of managerial authority and also advises
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arbitrators not to “fine tune” discipline when it falls within a range of reasonable
responses. Reliance was placed on the following cases: Volvo Canada Ltd. v.
Canadian Automobile Workers, Local 720, 1990 CarswellNS 798 (B. Outhouse);
Shuniah Forest Products Ltd. v. I.W.A. – Canada, Local 2693, 2000 CarswellOnt 5989
(Luborsky).
The Employer also characterized the Grievor’s emails as reckless, insolent and
amounting to a defiance of the CEO’s authority. The Employer suggested that the bold
and underlined fonts were akin to yelling or “pounding on the table”. This was said to
amount to “bullying” and/or an attempt to “muzzle” the CEO from following the Public
Health directives to employers to promote vaccine uptake.
Because the Grievor held positions on the Union executive and the two Committees, t he
Employer addressed the fact that many arbitral cases deal with what is considered to be
“protected Union activity”. The Employer suggested that since the Grievor did not
consult with his Union or the Union members of the Committees before sending these
emails, he should not be considered to have been acting in t he role of a Union official or
be able to claim the protection sometimes afforded to “union activity”. In the alternative,
the Employer argued that the contents of the emails go “over the top” of what is
appropriate for a union advocate. The Employer pla ced reliance on the cases that hold
that Union officials can be disciplined for statements that are knowingly or recklessly
false, threatening or intimidating, or amount to a public attack on their employer or
members of management, see Via Rail Inc. and Unifor (Hampen) Re, (2018) 291 L.A.C.
(4th) 311 (Sims); JD Norman Industries v. Unifor and its Local 195, December 17, 2014
(Snow); DHL Express (Canada) Ltd. v. C.A.W.-Canada Local 4215 (Rae), 2010
CarswellNat 6237 (Ish); and La-Z-Boy Canada Ltd. v. I.U.E., Local 400W, 2002
CarswellOnt 5068 (Knopf).
The Employer suggested that if the Grievor ha d simply expressed his concerns about
the dangers or efficacy of the Covid vaccines, there might have been no need for
discipline. However, it was submitted that by essentially demanding that the CEO
7
retract the encouragement to get vaccinated, the Grievor’s emails amount to a defiance
of legitimate managerial authority. Further, th e emails were said to be potentially
disruptive, given the Public Health directives, even if the Grievor held honest beliefs to
the contrary. It was also argued that the Grievor’s second email was intended to
undermine the CEO’s authority, by questioning his statements, continuing to demand a
retraction and “shaming” him with the reference to the Life Insurance coverage.
The Submissions of the Union
The Union did not challenge the principles set out in the well-established arbitral
authorities cited by the Employer. However, the Union accurately pointed out that none
of those cases involved similar facts to the case at hand. The Union submitted that the
Grievor’s emails should not be considered to have been “disruptive” or a “defiance of
authority”. Instead, the Union characterized the emails as “thoughtful, well-researched
and polite” attempts to articulate the Grievor’s honest belief that the promotion of Covid
vaccine posed a danger to individuals.
The Union agreed with the Employer that the Grievor’s role as a Union executive and
his positions on the Committees did not give him a licence to be insubordinate.
However, it was argued that the emails should not be seen as being an attempt to
“muzzle” the CEO. The Union stressed that the Grievor only sent his messages to the
CEO and the Committees’ members. The Union suggested that the emails should be
accepted as the Grievor’s “cautious” approach to what he considered an urgent health
and safety risk being posed by the CEO’s all-staff message. The Union asserted that no
one would have considered the emails to be insubordinate if they had expressed an
urgent concern about an “elevator hanging from a thread”.
The Union also challenged the suggestion that the Grievor’s bold and underlined fonts
in the emails were as intimidating as someone shouting or pounding the table at a
meeting. It was stressed that the Grievor repeatedly used the word “please” and that
his language was “restrained”.
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Further, the Union argued that it is important for Union officials and employees to be
able to disagree with management, especially regarding matters of health and safety. It
was said that to find otherwise would defeat the purpose of Joint Health and Safety
meetings and/or discussions about matters of mutual concern to labour and
management.
Finally, the Union disputes the allegation that the Grievor was in violation of the
Employer’s Code of Conduct, asserting that the Code is aimed at behaviour that does
not equate to the facts of this case.
Accordingly, the Union argued that no discipline was warranted. In the alternative, it
was suggested that if management felt that the Grievor’s tone was inappropriate, a non-
disciplinary counselling letter would have been “a more measured response”.
The Employer’s Reply Submissions
The Employer argued that there is no requirement for it to prove that the Grievor’s
emails were disruptive or detrimental to the workplace. It was also stressed that the
Grievor had no expertise in vaccines and his emails had the potential of undermining
the CEO’s legitimate message and/or were intended to inhibit him into a retraction.
The Decision
The sole issue in this case is whether the Grievor’s emails amount to insubordination .
Concerns about vaccine efficacy or legitimacy have been debated since the onset of
Covid-19 and have triggered countless public debates, disputes and disruptions.
This arbitration hearing is not the forum to resolve those issues. Therefore, it must be
stressed that this Award does not examine or determine the validity of the Grievor’s
concerns about Covid-19 vaccines. They are simply treated, as the Parties agreed, to
be his honestly-held beliefs.
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The Parties further agreed upon the principles that must be applied to this case.
Insubordination can be more than a defiance of an order. Insubordination includes
challenges to supervisory authority by threatening, insolent or obscene remarks, or
when there is conduct that shows contempt, disrespect, defiance or a flouting of
authority, see Volvo Canada Ltd. v. Canadian Automobile Workers, Local 720, supra.
Further, insubordination includes conduct that is disruptive and detrimental to the
operations of the workplace or workforce, or is “dismissive” of supervisory authority, see
Shuniah Forest Products Ltd. v. I.W.A. – Canada, Local 2693, supra.
All the cases cited above recognize that contentious issues arise in the workplace in
situations where employees may question or defy supervision and/or where there are
fundamental disagreements between labour and management. Arbitrators have, and
must, give some latitude to union officials so that they can fulfill their responsibilities to
their members, without fear of being disciplined. Similarly, all employees must be able
to raise safety concerns without fear of reprisal. However, those rights have to be
balanced against employers’ right to manage their operations responsibly, free of
harassment and abuse. Accordingly, union officials and their members may be in
jeopardy of discipline if they recklessly defy management, become intimidating,
disruptive or insolent, or publicly attack a member of management.
The Grievor’s emails do not reflect the level of insolence or defiance exhibited in the
cases cited by the Employer. It is also noted that his emails were only circulated to the
CEO and the members of two relevant Committees. Therefore, there was not a
widespread challenge to what the CEO had written. Instead, the Grievor’s message was
sent to a targeted audience of people that mattered. The emails were articulate and
reflective of the Grievor’s honest beliefs. It is important to allow elected union officials to
raise concerns and be confident that their views will be respected, even when they are
not accepted. Therefore, it is tempting to conclude that this is not a situation that
warranted discipline.
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However, it is equally important to view this case in context and to recognize the
potential impact of the Grievor’s words. No matter what one’s views are about the
threats Covid-19 posed or the vaccines’ efficacy, I must take arbitral notice of the fact
that Covid-19 was having a profound impact on every community. Public Health
officials, governments, medical professionals, organizations and individuals were all
struggling with new issues and trying to manipulate through a quagmire of information
and misinformation.
In that atmosphere of uncertainty, Toronto Public Health was advising employers to
promote and encourage employees to get vaccinated. This Employer was acting in
accordance with that advice when its CEO wrote to all staff members in April of 2021
encouraging them “to consider getting the vaccine when it becomes availabl e”. The
Grievor reacted to this message by asserting that there was no factual basis for the
CEO’s advice to staff, quoting and directing the CEO to material that contradicted the
Public Health advisory and asking the CEO to refrain from any further promotion of
Covid-19 vaccines. The Grievor put the word “vaccines” in quotes, using irony to
bolster his contention that they were experimental and potentially dangerous .
If the Grievor had only sent the first email, perhaps there would be no cause for
discipline and it could have been accepted as simply his passionate expression of
beliefs. However, the Grievor did not stop there. He responded to the CEO’s attempt to
try to point out to the Grievor that the Employer was not mandating vaccinations, that
the Grievor’s views did not accord with the consensus of the medical community and
that the Employer would continue to follow the guidance from provincial and local
authorities. The Grievor’s response was to challenge the CEO by questioning the basis
for encouraging the vaccine and essentially accusing management of being wrong or
irresponsible. After quoting more material for the CEO to consider, the Grievor
repeated his request that the CEO retract the encouragement to staff to get vaccinated,
saying: “now you are aware of this information”.
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Respectful debate could be appropriate in these circumstances. However, the Grievor’s
emails were not respectful. They amount to a direct attack on the CEO’s intelligence
and/or his ability to responsibly or properly manage. They suggest that the CEO is
ignoring important information and creating risks to staff. This is made apparent by the
Grievor asking the CEO to confirm that the Life Insurance will be paid to employees who
die from complications arising from the vaccine. Further, when the Grievor questioned
whether the CEO had any facts to support his message or whether there was any
“proof” that the variants had been isolated, he was not really asking questions. He was
suggesting that the CEO was acting irresponsibly. As pointed out in Volvo Canada Ltd.
v. Canadian Automobile Workers, Local 720, supra, questions like these are really
attempts to make a point. Rhetorical questions such as these amount to a flouting of
authority. The reason discipline was upheld in Volvo Canada Ltd. v. Canadian
Automobile Workers, Local 720, supra, was because the arbitrator concluded that “if left
unpunished [these rhetorical questions] could easily undermine management’s right to
direct the workforce”, [para 18]. Similarly, in the case at hand, the Grievor’s questioning
of the CEO’s basis for issuing advice to the staff amounted to a challenge of the CEO’s
right and ability to manage in an unprecedented situation.
It has not been forgotten that the Grievor signed his emails as the Union’s VP and as a
member of two important Committees dedicated to union/management concerns. He
was raising a specific health and safety concern. However, as Via Rail Inc. and Unifor
(Hampen), supra, pointed out, even when union officials raise legitimate issues, they
must do that in a way that does not belittle management or disrupt the workplace. In
Via Rail Inc. and Unifor (Hampen), supra, a shop steward, who was also a member of a
joint health and safety committee, raised legitimate concerns about asbestos removal in
Union Station. However, her “passionate advocacy” and way of speaking were “belittling
and disruptive”. Despite her status as a union official, it was held that her conduct
warranted discipline. Similarly, the Grievor may have been trying to act as a passionate
union advocate. However, his rhetorical questions and his repeated insistence that the
CEO was giving inaccurate or reckless advice to staff undermined the CEO’s message
and authority. The fact that the Grievor used the words “please” and “I am asking you”
12
do minimize the degree of disrespect. However, when the Grievor’s two emails are
read together, they had the potential of sowing more discord into a serious situation and
discouraging acceptance of the CEO’s leadership in this area. Further, the emails had
the potential of being disruptive and detrimental to morale. As the Letter of Reprimand
stated, the Grievor’s emails had the effect of “causing some of those copied
considerable concern related to their personal COVID-19 experiences”. Whether they
were intended to or not, the emails sowed seeds of distrust towards the CEO’s
message and were potentially irresponsible. As such, they were not in accord with the
Statement of Respect.
Finally, the tone of the Grievor’s emails was very problematic, to the point that they
became insulting. He pointed out that neither the CEO nor anyone in management were
physicians and tells them that they should not be giving out medical advice. Ironically,
the Grievor, who is also not medically trained, sets out what he calls “facts” about
Covid’s impact and the efficacy of vaccines. The Grievor was in no position to challenge
the public health advisories or the consensus of medical advice. Yet he was attempting
to undermine the CEO’s message to a group of individuals who shared responsibilities
for the workplace and the workforce.
This was not a situation akin to when someone sends an urgent message asking
management to attend to an elevator “hanging from a thread”. Management has the
right and the authority to encourage staff to comply with public health guidance. The
Grievor’s challenge of that advice amounted to a challenge of the CEO’s authority
and/or ability to lead. That means the emails must be viewed as being disrespectf ul
and an attempt to be disruptive.
The impact of the insubordination was limited because the email exchange was
confined to the CEO and the members of the two Committees. However, those
Committees had serious responsibilities regarding Covid-19 measures. Therefore, the
impact of the Grievor’s emails was significant. Accordingly, under all the circumstances
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of this case, the Letter of Reprimand was warranted and was well within the realm of
appropriate responses.
As a result, the grievance is dismissed.
DATED at TORONTO this 30th day of June, 2022
____________________________________
Paula Knopf, Arbitrator