HomeMy WebLinkAbout2020-2263.Farrell.2022-12-05 Decision
Crown 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# 2020-2263; 2020-2264; 2021-3246
UNION# 2019-0211-0014; 2020-0211-0010; 2022-0211-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Farrell) Union
- and -
The Crown in Right of Ontario
(Ministry of Environment Conservation and Parks) Employer
BEFORE Joseph D. Carrier Arbitrator
FOR THE UNION Alex Andrews
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Joohyung Lee
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING November 2, 2022
-2-
Preliminary Decision
[1] There are three grievances before me two of which have been consolidated
whereas the third stands alone. In this preliminary matter, the Employer has
brought a Motion to strike numerous provisions set out in the Union’s particulars
relevant to the each of three grievances. In addition to the Motion to strike those
provisions, the Employer contends that the substance of the first grievance is such
that it should be dismissed. It is the Employer’s position that it essentially
challenges a personal development plan issued by the Grievor’s Acting
Supervisor, a matter which is beyond the jurisdiction of an arbitrator before this
Grievance Settlement Board.
[2] Below, I will deal with the Motions with respect to each grievance chronologically.
However, by way of brief background, the Grievor is a senior Environment Officer
with the Ministry of Environment, Conservation and Parks and had been employed
by that Ministry since January 19, 1999. She was based in the Ministry’s Niagara
District Office situate in St. Catharines, Ontario.
The Personal Development Plan Grievance Dated July 24, 2019 – GSB No. 2020-
2263
This grievance essentially asserts that the Grievor’s performance for the period
April 1, 2018 to March 31, 2019 was arbitrarily appraised by an individual who was
in an acting position only as District Supervisor. The Grievor, Ms. Barbara Farrell,
seeks to have the Personal Development Plan (PDP) revised to something more
favourable.
-3-
The statement of grievance itself reads as follows:
I grieve that the Employer has violated Article 2 of the Collective Agreement
and all other applicable articles, legislation, regulation and policy by
arbitrarily appraising my performance contrary to governing principles and
standards. I grieve that Brad Farnand is in an acting position as District
Supervisor and lacks the authority to conduct a performance appraisal. I
further grieve that the Employer has used questionable statistics and
performance measures for specific purpose of marginalizing my
performance.
[3] In addition to the foregoing, the Union prepared a letter dated January 4, 2022 with
particulars regarding the first two grievances. Those regarding the PDP Grievance
were set out in the first eleven paragraphs. While the grievance itself and
discussions between the parties reiterate the Grievor’s concern that the PDP was
prepared by her Acting Supervisor, otherwise a co-worker of the Grievor, that
concern is not reiterated or pursued in those particulars. Presumably the Union’s
author of those particulars recognized that an Acting Supervisor was nonetheless
a member of management with responsibility and authority to do a PDP of
employees within the bargaining unit such as the Grievor. In any event, I am
satisfied that the Statement of Grievance with respect to that issue would not have
succeeded had it been pursued or itemized in the particulars.
[4] Notwithstanding that omission, in addition to the complaint that the PDP itself was
unfair, the particulars raise a secondary issue regarding the appointment of yet
another Acting Supervisor at or about the time the Grievor’s PDP was being
prepared. The particulars suggest that the unfair PDP somehow might have
interfered with that opportunity for the Acting Supervisor position which might
otherwise have been available to the Grievor.
-4-
[5] Furthermore, although I noted earlier that the Union’s particulars did not identify
the Grievor’s concern that her Acting Supervisor did not have the authority to
conduct a PDP, the particulars included the following paragraph:
Mr. Farnand is a union peer and an officer out of the Ministry’s Hamilton
District, working in an Acting Supervisor position. It is the grievor’s position
that the harassment is self serving as they could possibly be in a
competition for future promotional jobs, such as supervisor.
On behalf of the Employer, Mr. Joohyung Lee in his Motion submitted that:
1. Fundamentally, the grievance as written related to a PDP only;
2. A PDP is not a disciplinary act of management and therefore is not
the proper subject of a grievance;
3. An arbitrator has no jurisdiction to interfere with the selection or
appointment of persons be they co-workers or otherwise to
management positions outside the scope of the bargaining unit or
collective agreement.
[6] In the circumstances it was the Employer’s position that the grievance itself should
be dismissed together with the additional particulars which in part constitute an
expansion of the grievance as originally framed.
[7] In particular, Mr. Joohyung Lee took exception to the Union’s attempt to expand
the scope of the grievance by claiming that the appointment of the new Acting
Supervisor was an attempt to expand the nature of the grievance to one involving
a Human Rights violation in that the particulars state:
That the Employer demonstrated a gender bias in their selection process
by promoting a male, non-officer from another branch, over the Grievor”.
-5-
[8] In support of those submissions, amongst others, Employer counsel relied on the
following decisions:
1. Re OPSEU and (Ontario (Ministry of Government and Consumer
Services) (Boudarga), 2019 CarswellOnt 16161, 141 C.L.A.S. 202
(Brian McLean);
2. Re Ontario (Ministry of Children and Youth Services) and OPSEU
(Rafo), 2013 CarswellOnt 2975, [2013] O.G.S.B.A. No. 40, 114
C.L.A.S. 54 (Nimal Dissanayake);
3. Re Ontario (Ministry of Transportation) and OPSEU (Ahmed), GSB
#2013-2757, August 26, 2014 (Marilyn A. Nairn);
4. Re Ontario (Ministry of the Solicitor General) and OPSEU
(Schnoflak), GSB #2017-3409, November 19, 2019 (Ken
Petryshen);
5. Re Ontario (Ministry of Transportation) and OPSEU (Fernandes),
GSB #2002-1551, January 2, 2004 (Nimal Dissanayake).
[9] Mr. Andrews on behalf of the Union argued that the grievance ought not to be
dismissed nor the particulars since these are part of the narrative setting out the
basis or foundation for the continued harassment and discrimination suffered by
the Grievor and identified in the second grievance.
[10] I have considered the grievance document, the particulars provided by the Union
and the submissions of the Parties and I am satisfied that the Employer’s Motion
with respect to this first grievance referred to as the PDP Grievance should be
upheld in all respects and the grievance itself dismissed for the reasons which
follow:
1. The grievance as originally framed was fundamentally a complaint
that the Grievor’s Personal Development Plan (PDP) having been
prepared by the Grievor’s then Acting Supervisor was unfair and
-6-
should be “vacated” and replaced with “a performance evaluation
that is fair, reasonable and consistent with provincial standards”.
[11] That position on its face is a complaint about the fairness of the Grievor’s PDP.
However, this Grievance Settlement Board in earlier cases has found that such
evaluations are not subject to review by the Board for fairness. Indeed, unless the
evaluation constitutes a matter of discipline on the employee’s record it is not a
matter concerning which an arbitrator assumes jurisdiction to set aside a document
and/or refer it back to the parties for revision. In the Fernandes case decided by
Vice Chair Dissanayake (supra) an almost identical issue arose. In that case the
arbitrator commented as follows:
No doubt the grievor is not happy with the contents of the performance
appraisal. However, that does not make the appraisal disciplinary. There
is no suggestion that the grievor has suffered any sanction or penalty as a
result of the contents in the appraisal. The employer is entitled to give
guidance to an employee on performance issues without engaging in
disciplinary action. Every such action by the employer is not subject to
review by the Board for fairness. An appraisal will only be disciplinary, if it
is used to build up a record against the employee. The employer has clearly
taken the position here that the appraisal is not disciplinary. The employer
is bound by that. Once the employer takes such a position, the grievor has
the assurance that the appraisal will not, and cannot be used as a
disciplinary record in the future. In other words, once the employer clearly
states that the appraisal is not disciplinary, then it is not disciplinary. (See
Re Bacchus, 911/88 (Watters).
[12] In the matter before me there was no suggestion by the Union that the PDP was
in fact disciplinary. Further, although there were suggestions that the document
might interfere with the Grievor’s future prospects for promotion, that submission
was speculative only. As such it could not be relied upon to characterize the
evaluation as a disciplinary matter. In the circumstances, it is my view and I find
that the evaluation itself was a legitimate exercise of management rights, was not
-7-
disciplinary in nature and although perceived by the Grievor as unfair, is not subject
to review at arbitration.
2. With respect to the suggestion that an Acting Supervisor did not
have the authority to appraise the Grievor’s performance. As noted
earlier, I reject that assertion. The individual was appointed to
perform management functions which include the preparation of
PDP for bargaining unit employees. Further, it is only speculation
again that his appraisal of the Grievor was biased so as to prejudice
her in future management opportunities when both may be
applicants.
3. With respect to the particulars alleging gender bias relating to the
promotion of a male from a different district to an Acting Supervisory
position, the particulars are not supported and are struck for the
following reason:
[13] They represent an unwarranted expansion of the grievance in that two new issues
are identified that being the promotion of someone other than the Grievor to an
Acting Supervisory role and secondly the suggestion that the promotion to the
Grievor’s detriment was gender biased.
(a)(i) With respect to the promotion of another to Acting Supervisor, promotions
to managerial positions such as Acting Supervisor are beyond the scope of
the OPSEU agreement here. In the Schnoflak decision of arbitrator
Petryshen (supra) one of the issues identified in paragraph 3 of the decision
-8-
was that the grievor “was denied the Acting Sergeant position because of a
failure by the employer to accommodate him, with the result that the
employer discriminated against him on the basis of his disability.” In his
decision Arbitrator Petryshen in paragraph 6 referred to several cases relied
upon by the employer including the decision of Vice Chair Nairn in the
Ahmed matter:
In OPSEU (Ahmed), the grievor was screened out of a competition for
an Engineer position in PEGO bargaining unit. The grievor claimed his
treatment by the employer was based on his age and race. Vice-Chair
Nairn upheld the Employer’s preliminary objection by finding that she did
not have the jurisdiction to entertain the grievance. She found that the
real issue behind the grievance related to the proper administration of
the PEGO collective agreement and was beyond the scope of the
OPSEU collective agreement.
[14] Arbitrator Petryshen went on to distinguish several cases submitted and relied
upon by the Union but went on to find in favour of the employer’s Motion at
paragraph 9 of his decision for the following reasons:
As set out in article 22.1 of the OPSEU Agreement, my jurisdiction is
limited to”…any complaints or differences between the parties arising from
the interpretation, application, administration or alleged contravention of
this Agreement, including any question as to whether a matter is
arbitrable.” There is no provision in the OPSEU Agreement which gives
an employee covered by that Agreement a right to apply for a
management position. The complaint about discriminatory treatment in
this instance is not in relation to a matter covered by the OPSEU
Agreement and I do not have a general jurisdiction to deal with allegations
of discrimination in employment that are beyond the scope of the OPSEU
Agreement.
[15] The case before me as that before arbitrator Petryshen claims in part
discrimination based upon grounds which were allegedly discriminatory.
Notwithstanding those allegations, Arbitrator Petryshen was satisfied that he had
no jurisdiction to deal with the assignment to a position outside the bargaining unit.
-9-
In his case it was to an Acting Sergeant position whereas in that before me the
position is that of Acting Supervisor. In any event the position before me is similar
in that the Acting Supervisory job is a managerial position beyond the scope of the
OPSEU Agreement. Accordingly, I have no jurisdiction to address the Grievor’s
complaint in that regard.
(a)(ii) Additionally, the assignment in question was not the subject of discussion
between the Parties nor was it identified in the grievance as written. It was
therefore an unwarranted expansion of the grievance.
(a)(iii) It was also an unwarranted expansion of the grievance in as much as it
framed the issue or attempted to frame the issue as a violation of the Human
Rights Code on the basis of gender discrimination. That had never been
part of the discussions or the grievance in the first instance. An expansion
or introduction of a new issue of that nature was disallowed by Arbitrator
Dissanayake in the Rafol case before the Grievance Settlement Board
(supra). In paragraph 18 of his decision Arbitrator Dissanayake found as
follows:
In the present case, the human rights issues belatedly raised by the union
are very discreet and different than the issue originally grieved and
discussed between the parties. The remedy in the original grievance was
the approval of a paid leave of absence. Pursuant to its human rights
allegations, the remedy may involve human rights damages. The human
rights issues were not subject any discussion between the parties. They
were raised for the first time just prior to the scheduled arbitration.
[16] Consistent with that decision it is my view that those particulars relevant to the
alleged improper promotion together with the allegation of violation of Human
-10-
Rights Code constitute an improper expansion of the grievance and are also
struck.
[17] Having reviewed the various elements of the grievance and particulars in support,
I am satisfied that the Employer’s Motion to dismiss the grievance together with
particulars succeeds. More precisely or clearly that the PDP Grievance is
dismissed in its entirety including all supporting particulars.
The Harassment Grievance
This brings me to a consideration of the second grievance being GSB #2020-2264
and which the Parties have referred to as the Harassment Grievance. The
grievance was filed April 6, 2020.
[18] The Statement of Grievance centres upon an alleged pattern of harassment,
bullying and discrimination in violation of the Collective Agreement, the
Occupational Health and Safety Act and the Ontario Human Rights Code by two
management officials over an extended period. The Grievor complains that she
was subjected to a poisoned work environment which the Employer failed to
remedy. The grievance itself is lacking in particular with respect to the alleged
pattern of unacceptable conduct. However it does go on to request a reassignment
of the Grievor’s reporting duties to persons other than those two officials as well
as financial compensation for her losses and damages.
[19] The Union in its letter of January 4, 2022 provided particulars with respect to this
grievance. Those are set out in paragraphs numbered from 12 to 34 together
with remedial requests identified in paragraphs 35 and 36.
-11-
[20] Mr. Lee for the Employer challenged paragraphs 13 and 14 which reflect back to
a grievance settlement entered into in 2014. The Union agreed to strike those
two paragraphs from the particulars.
[21] In addition to those paragraphs the Union agreed to strike paragraphs 30 to 34
inclusive which related to a WSIB claim which was before that tribunal on appeal.
[22] Of the remaining particulars the Employer moved to strike the following
paragraphs:
Medical Accommodation
Paragraphs 19 to 29
[23] Aside from paragraphs 13 and 14, paragraphs 12 through 18 of the Particulars
provided details of the nature of the conduct or events beginning as early as of
May 2018 up to and including April 6, 2020 when the grievance was filed and up
to and including the denial of the grievance on July 6, 2020 by the Employer.
Paragraphs 12 to 18 were not challenged by the Employer.
[24] Paragraphs 19 to 23 which are challenged by the Employer relate to absences by
the Grievor in the month preceding the filing of the grievance and include reference
to the Grievor being placed on a paid leave of absence commencing April 1, shortly
before she filed her grievance. The remaining paragraphs that is 23 to 29 outline
the Grievor’s return to the work place with accommodations based on restrictions
and limitations. Those restrictions and limitations and the need for accommodation
according to medical reports provided by the Grievor’s treating physician were
-12-
triggered in large measure by the alleged harassment within the workplace. That
medical report was dated September 8, 2020 and is referred to in paragraph 25 of
the Union particulars.
[25] Paragraphs 26 to 27 relate to a request by the Employer on July 8, 2021 for an
updated medical with respect to the Grievor’s status, limitations and restrictions.
Paragraphs 27 identifies the nature of the physician’s response to that request and
includes reference to the limitation on the Grievor’s contact with the two
management officials who were the subject of the harassment allegations.
[26] In the circumstances, given the breadth of the grievance as filed on April 6, 2020
including the time off work allegedly suffered by the Grievor as a result of the
harassment together with consequential accommodations of her needs, it is my
view that the grievance is broad enough and anticipates not only the losses
suffered financially up to the filing of the grievance but also the accommodation
sought in the grievance which may also include the nature and adequacy of the
accommodation during the ensuing period. Accordingly, I am not persuaded that
paragraph 19 through to 27 constitute an expansion of the grievance filed on April
6, 2020.
[27] On the other hand, paragraphs 28 and 29 deal with a request by the Employer for
an independent medical examination of the Grievor. It is my view that those
paragraphs raise an entirely new issue and are not the proper subject of the April
6, 2020 harassment grievance. Accordingly, those two paragraphs themselves do
constitute an expansion of that grievance and are duly struck from the Union’s
-13-
particulars. I should note that this result will not eliminate the Grievor’s opportunity
to challenge the requirement that she submit to an independent medical
examination since the third grievance relates specifically to that matter and will be
dealt with further hereunder. In summary, in respect to the harassment grievance
I confirm the following:
Paragraphs 13 and 14 have been withdrawn by the Union.
Paragraphs 28 and 29 are struck from the particulars.
Paragraphs 30 to 34 have been withdrawn by the Union from the particulars.
The IME Grievance
The final grievance which has not been consolidated with the former two is referred
to by the parties as the IME Grievance which was dated February 17, 2022 and
now bears the Grievance Settlement Board No. 2021-3246.
[28] Only two of the fifteen paragraphs outlined in the particulars of this matter by the
Union are challenged by the Employer. That is paragraphs 3 and 5.
[29] Regarding paragraph 3 itself, it refers back to the settlement of 2014 which was
withdrawn by the Union in the harassment grievance. The Union has also
withdrawn that reference as a particular in this IME Grievance.
[30] Paragraph 5 reiterates the very same substance and allegations as were identified
in the PDP Grievance itself. The Employer reiterated the same concerns regarding
this paragraph 5 as it had with respect to the PDP Grievance itself. Mr. Andrews
-14-
reiterated his request that paragraph 5 remain as part of the narrative or
background to the Grievor’s concerns.
[31] For those reasons that I excluded or rather dismissed the PDP Grievance itself, I
find that paragraph 5 is an inappropriate particular relating to the legitimate
exercise of management rights which are beyond the scope of review at arbitration.
[32] In summary with respect to the IME Grievance paragraphs 3 and 5 of the
particulars are hereby struck.
[33] The foregoing constitutes my decision and order with respect to these preliminary
Motions of the Employer. I remain seized to deal with all other aspects of these
three matters.
Dated at Toronto, Ontario this 5th day of December 2022.
“Joseph D. Carrier”
Joseph D. Carrier, Arbitrator