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HomeMy WebLinkAbout2020-2966.McGann et al.2023-03-02 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# 2020-2970; 2020-2971; 2021-0499 UNION# 2021-0526-0006; 2021-0526-0007; 2021-0526-0016 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McGann et al) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Rebecca Jones Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Katherine Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING December 16, 2022 - 2 - Decision [1] There are three grievances before me, each referred pursuant to the mediation/arbitration process described in Article 22.16. Article 22.16.2 provides that the mediator/arbitrator “shall give a succinct decision within five (5) days after completing the proceeding, unless the parties agree otherwise.” The parties agreed to waive this time limit. Article 22.16.7 provides: “Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise.” The parties have not agreed otherwise in this case. [2] All of the grievances relate to a Joint Health and Safety Committee (“JHSC”) established pursuant to s. 9 of the Occupational Health and Safety Act (“OHSA”) for a workplace at the court house located at 330 University Avenue, Toronto. [3] The first is a group grievance filed January 29, 2021 on behalf of the worker members of the JHSC. It relates to the conduct of workplace inspections required by s. 9(23) of the OHSA. Section 9(23) of the OHSA states in relevant part: “the members of a committee who represent workers shall designate a member representing workers to inspect the physical condition of the workplace”. The grievance alleges: “the employer has arbitrarily directed / assigned a work member who they believe should do the inspection.” The inspections in question were conducted in December, 2020 and January, 2021. [4] I will first consider the workplace inspection of the 8th floor of the building scheduled for December 10, 2020. On December 4, 2020, Mr. McGann, who is a worker member of the JHSC, wrote to Christopher Samac, Supervisor of Court Operations for Civil Court Staff at 330 University Avenue. Mr. McGann stated he was “required” to inspect the 8th floor on December 10, 2020. Mr. McGann continued that he was not available to conduct the inspection in the morning because of a course he was to attend and requested that the inspection take place at 4:45 PM. Mr. Samac responded later on December 4, that management was not available at 4:45 PM. Mr. Samac also noted that Mr. McGann’s co-worker representative on the JHSC, Marie-Paule Duret, could attend to conduct the inspection on the morning of December 10. Mr. Samac noted that he had made the necessary arrangements for Ms. Duret to attend. He copied Ms. Duret’s supervisor, Satie Seeraj. Ms. Duret was also copied on Mr. Samac’s email. Ms. Duret responded on December 4 stating: “I am not sure if this is the right approach to volunteer someone without having been informed, and/or consulted for his/her availability. I am not sure of its appropriateness.” - 3 - [5] The Union argues that “on an objective read”, these emails demonstrate the Employer dictating which worker member of the JHSC should conduct the workplace inspection. I am not persuaded that this was the case. In any event, subsequent emails make it abundantly clear that it was not the case. I will review those emails in some detail as they are also relevant to the second grievance. [6] By December 6, 2020 email, Mr. McGann replied to Mr. Samac’s December 4, 2020 email as follows: Good Day, Mr. Samac You or Ms. Seeraj are not willing to start the inspection at 4:45 p.m.? God willing, the inspection of the 8th floor, will be completed by me on Thursday, December 10/20 after my assign [sic] duties for the courtroom. Thank you. This email is disingenuous. Mr. Samac had not indicated that management was “not willing” to start the inspection at 4:45 PM on December 10, 2020. He had indicated that management was not available to do so. [7] By a December 8, 2020 email, Mr. Samac replied to Mr. McGann. While re- iterating that management was not available to conduct the inspection at the time and date specified by Mr. McGann, Mr. Samac offered three alternatives: one involved Ms. Duret commencing the inspection and Mr. McGann joining when he could; two of the alternatives were for the inspection to be conducted on alternative dates and times when Mr. McGann could be present for the entire inspection. It is quite clear from this email that there is no basis whatsoever for the suggestion that the Employer was directing which worker representative would conduct the December, 2020 inspection, let alone doing so in a manner which was arbitrary. [8] I turn now to the January, 2021 workplace inspection. The evidence in relation to this takes the form of a series of emails between Ms. Duret and Mr. Samac, on which Mr. McGann was copied. On Tuesday, January 5, 2021, Ms. Duret sent Mr. Samac an email stating: “I will be conducting a health and safety inspection” either on January 6 or 7, 2021. Mr. Samac responded on the same day reiterating that management would be present for all inspections and that inspections should take place during scheduled work hours. He also indicated that management was not available for either January 6 or January 7, 2021 and proposed that the workplace inspections be discussed at the next JHSC meeting scheduled for January 13, 2021. On January 7, 2021, Ms. Duret, who was the worker co-chair of the JHSC, - 4 - responded with a proposed schedule for work place inspections, including January 12, 2021 as one of the dates. Mr. Samac responded on the same date indicating in part “I am available on January 12/21 to accompany you and complete the … inspection”. On January 11, 2011, at 3:24 PM, Ms. Duret responded: “It is inappropriate for you to assume that I will be … the one performing the inspection on January 12, 2021. Time should be made available for Mr. McGann to perform the inspection scheduled for January 12, 2021.” On January 12, 2021, at 8:20 AM Mr. Samac responded that management was simply acting on the statement made by Ms. Duret in her January 5, 2021 email that she would be conducting the workplace inspection and the absence of any suggestion in her subsequent emails to the contrary. Mr. Samac indicated that it was too late to make arrangements for Mr. McGann to attend the inspection. He offered to reschedule the inspection to later that week on January 14 or 15, 2021 and asked that Ms. Duret confirm who would be in attendance. [9] The Union argues that “on an objective read”, these emails demonstrate the Employer dictating which worker member of the JHSC should conduct the workplace inspection. I am hard pressed to see how these emails can be read in that way. Mr. Samac’s assumption, that Ms. Duret would be conducting the January, 2021 inspection, was entirely reasonable. In any event, he was prepared to reschedule the inspection to a later date, requesting only that Ms. Duret advise who would be attending on behalf of the Union. Once again, there is no basis whatsoever for the suggestion that the Employer was directing which worker representative would conduct the January, 2021 inspection, let alone doing so in a manner which was arbitrary. [10] Accordingly, the first grievance is dismissed. [11] The second grievance is an individual grievance filed February 3, 2021 on behalf of Mr. McGann. It grieves the imposition of a three day suspension for insubordination in relation to Mr. McGann’s conduct of the workplace inspection on December 10, 2020. The grounds relied upon by the Employer for the suspension were that Mr. McGann: failed to follow management directions with respect to the conduct of the workplace inspection, which directions were set out in emails of December 4, 8 and 9, 2020 and given verbally by Mr. Samac on December 10, 2020 during a meeting with Mr. McGann; and that Mr. McGann raised his voice at Mr. Samac during that meeting. [12] The December 4 and 8, 2020 emails were partially reviewed above in relation to the first grievance. They establish that on December 4, 2020 Mr. Samac advised - 5 - Mr. McGann that management was not available to conduct the inspection on December 10, 2020. When Mr. McGann persisted in asserting that the inspection would proceed on December 10, 2020, Mr. Samac reiterated in his December 8, 2020 email that management was not available to conduct the inspection on that date and offered alternative dates. In that email, Mr. Samac continued: As you are aware, these inspections should take place within your scheduled work hours and management must approve any time away from performance of your assigned duties, including approving time away from work to conduct JHSC inspections. Please note that should you not adhere to any of the above directions, including initiating the 8th floor inspection at any other time than as stipulated above, conducting any inspection without prior approval from management, conducting any inspection without management presence, and conducting any inspection at a time that is not previously scheduled, such behaviour may be viewed as insubordination and may be subject to discipline. [13] Mr. McGann replied by a December 9, 2020, email. In his email, Mr. McGann failed to acknowledge or in any way respond to the directions given by Mr. Samac. Rather, he simply persisted in asserting that he would conduct the inspection on December 10, 2020 after the completion of his courtroom duties, notwithstanding the clear direction from Mr. Samac that he not do so. [14] By responding email of December 9, 2020, Mr. Samac noted that Mr. McGann’s response was “inconsistent with my direction to you.” Mr. Samac again specifically warned Mr. McGann that failure to adhere to management’s directions with respect to the inspection “may be viewed as insubordination and may be subject to discipline.” [15] Once again, Mr. McGann simply ignored Mr. Samac’s direction. At 3:09 PM on December 10, 2020 he sent Mr. McGann an email that stated: I’m going to start the inspection of the 8th floor. I have completed most of my courtroom duties for today. [16] The Employer notes that Mr. McGann’s email indicates that “most” of his courtroom duties for the day had been completed. The Employer argues that not only had Mr. McGann not completed all the courtroom duties which he had been assigned, but in the ordinary course if he had completed those duties he was required to ask if there were other duties to which he could be assigned The Employer argues his failures in both respects constitute culpable conduct. I do not find that argument of assistance for the issue before me. The grounds relied upon - 6 - by the Employer in the letter of discipline were that Mr. McGann had conducted the inspection on December 10, 2020 despite being repeatedly told not to do so and that he raised his voice in the meeting with Mr. Samac. Leaving his assigned duties incomplete and not determining whether or not there were other duties which he could perform were grounds set out in the letter of discipline. Accordingly, it is not an issue before me. [17] In any event, Mr. McGann then went to Mr. Samac’s office. Mr. McGann told Mr. Samac that he was going to do the inspection and Mr. Samac directed him not to do so. Mr. McGann ultimately left and conducted the inspection on his own notwithstanding this direction. There is some dispute about some of the statements made during this conversation and accordingly both Mr. McGann and Mr. Samac gave oral evidence before me. There were a few differences in their evidence as to the conversation. I do not find it necessary to resolve them for the purposes of this decision. Rather, where there is a difference I will simply assume that Mr. McGann’s recollection is correct. [18] According to Mr. McGann, most of the conversation took place with him standing in the doorway of Mr. Samac’s office. The team lead, Chevaughn, was less than four feet away. Ms. Seeraj, the other supervisor, was about eight feet away. Mr. McGann thought that Chevaughn probably heard what he said, but was not sure if she could hear Mr. Samac. Mr. McGann thought that Ms. Seeraj would not have been able to hear the conversation. In fact, Ms. Seeraj was able to hear the conversation. What is relevant to the issue of insubordination is that the conversation between Mr. McGann and Mr. Samac was not private and could not have been considered as such by Mr. McGann. [19] It is not necessary to set out all the details of the conversation. Mr. McGann’s version includes reference to the fact that Mr. Samac told him that he had already responded to Mr. McGann giving other dates for the inspection to which Mr. McGann responded “I was tired of responding”. Mr. McGann and Mr. Samac then had a discussion about whether or not Mr. McGann was authorized to conduct the inspection. Mr. Samac clearly and repeatedly told Mr. McGann that he was not authorized to do so. Mr. McGann, however, was of the view that he was authorized to do so by the OHSA and told Mr. Samac as much repeatedly. At separate times each asked the other if they would like an inspector from the Ministry of Labour to be called. Ultimately, Mr. McGann stated, he “advised Mr. Samac that “you are wasting my time, I’m going to do the inspection”. He then proceeded to conduct the inspection. Mr. McGann conceded in his oral evidence - 7 - that he raised his voice during his interaction with Mr. Samac, but stated that he did so because he was wearing a mask. [20] Simply stated, insubordination is the flouting of a clear order given by a person in authority. There can be little question that Mr. McGann’s conduct during the December 10, 2020 meets two elements of this definition. During the meeting, and in the emails before the meeting, Mr. Samac clearly ordered Mr. McGann not to conduct the inspection on December 10, 2020, and Mr. McGann clearly disobeyed that order. Mr. McGann, however, challenged, and challenges, the authority of Mr. Samac to make the order. [21] Mr. McGann’s view appears to be that under the OHSA he has the authority, if not the obligation, to conduct workplace inspections at the time, or at least on the date, “scheduled” for that inspection. [22] It appears this view is mistaken. The issue was addressed by Vice Chair Derek Rogers in CUPE Local 4400 v Toronto District School Board, 2021 CanLII 132871 (ON LRB). After a careful review of the sections of the OHSA related to workplace inspections, Vice Chair Rogers stated at para. 75: I am of the view that “schedule” referred to in subsection 9(28) is and was intended to be the arrangement by which the workplaces referred to in subsection 9(27) are to be inspected — partially at least once each month and completely at least once each year. In common with the inspection under subsection 9(26), the particular days and hours on or during which the inspections for the purposes of subsection 9(27) and 9(28) might be conducted are of no concern or interest under the statute .… [23] However, I do not find it necessary to determine whether the OHSA gives a worker representative the authority to conduct a workplace inspection at the “scheduled” time. Rather the issue before me is whether the OHSA authorizes a worker representative to persist in conducting the investigation in the face of a direct order by a supervisor not to do so when there is a difference of opinion as to what the OHSA requires. In my view it does not. [24] The OHSA contains several provisions which by necessary implication give workers a limited right not to follow countervailing orders from an employer, for example the right of individual workers to refuse unsafe work under s. 43 and the right of certified members of the JHSC to direct a work stoppage where dangerous circumstances exist under s. 47. The authority to conduct a workplace inspection pursuant s. 9(23) is not such a provision. Rather, if there is a dispute between a - 8 - worker representative and a supervisor with respect to a workplace inspection, the worker representative’s recourse is first to raise the issue at the JHSC and if that is not satisfactory to seek a compliance order from an inspector of the Occupational Health and Safety Branch of the Ministry of Labour pursuant to s. 57 or s. 55 of the OHSA. Just as workers are generally required to “obey now, grieve later”, so a worker representative is generally required to obey now and seek a compliance order later. [25] The Union suggests that the onus lay upon the Employer to seek an order under the OHSA if it was of the view that Mr. McGann’s conduct of the workplace inspection, contrary to the direction of a supervisor, was in breach of the OHSA. With respect, I disagree. The OHSA does not confer a general licence upon worker representatives to ignore or act contrary to directions given by supervisors until such time as the Employer is able to obtain an order to the contrary. It requires little imagination to see the chaos which could ensue in a workplace from the opposite conclusion. [26] The Union argues that Mr. McGann’s desire to conduct the workplace investigation was prompted by a genuine concern on his part about the health and safety of his co-workers in the workplace. In this respect, the Union notes that the incident took place during the pandemic and shortly after employees were returning to the workplace. Mr. McGann had concerns, for example, with respect to whether water fountains had been left in operation notwithstanding a directive that they be shut down and in fact his December, 2020 inspection revealed one which was still operational. I do not doubt that Mr. McGann had genuine concerns. Those concerns did not, however, rise to the level of imminent harm such as would support an exception to the work now grieve later principle. [27] The Union argues that workers acting in the course of their duties as worker representatives under the OHSA should be afforded leeway analogous to that afforded workers acting in the course of their duties as union stewards. I agree with the Employer that this analogy is not entirely apt. The role of a union steward is to advocate on behalf of bargaining unit members, which by its nature may result in contention and disagreement. By contrast the internal responsibility system, of which a JHSC is an important part, in theory at least, seeks to promote cooperation between the parties. Nonetheless, as acknowledged by the Employer, there may well be disagreements between worker and employer members of a JHSC. In my view, it follows that a worker member should not be disciplined simply because they disagree with members of management. - 9 - [28] That, however, is not what happened here. Mr. McGann was not disciplined because he disagreed with management with respect to the authority of a worker representative to conduct a workplace inspection. He was disciplined because he persisted in acting in accordance with his opinion as to the scope of that authority notwithstanding clear and repeated directions to the contrary from Mr. Samac. In my view, that conduct warranted discipline. [29] The Union argues that the three day suspension is too severe. The Employer argues that it is within the range of appropriate discipline and should not be disturbed. [30] Mr. McGann has a letter of reprimand dated November 5, 2020 covering several incidents in which he was alleged not to have followed management directives. The Union notes that letter is the subject of a separate grievance and argues that no weight may be placed on it for the purposes of a “record”. I do not find it necessary to decide that issue. In my view, Mr. McGann’s conduct in this incident standing alone is sufficiently serious that it warrants a suspension. [31] The typical progression for suspensions between these parties is a one day suspension, followed by a three day suspension and suspensions of greater length thereafter. There is, however, no lock step requirement that this progression be followed. Individual circumstances may result in a suspension of greater or lesser length than the normal progression. [32] In this instance, Mr. McGann deliberately and repeatedly first ignored and then acted contrary to express directions given to him by Mr. Samac. Part of this insubordination was a public conversation in front of other employees. During that conversation, Mr. McGann did not simply disagree with Mr. Samac, he made disrespectful comments in particular that he was “tired of responding” to Mr. Samac and that Mr. Samac was “wasting my time”. [33] The countervailing consideration is that while Mr. McGann’s actions were deliberate, they were based on a sincere, albeit mistaken, belief that he was entitled to ignore clear directions from Mr. Samac. I would give weight to this consideration but for the fact that Mr. McGann appeared to persist in that belief up to and including the hearing of this matter. [34] In all of the circumstances, I conclude the three day suspension imposed by the Employer was reasonable and that there is insufficient basis for me to substitute a lesser penalty. - 10 - [35] Accordingly, the second grievance is dismissed. [36] The third is a group grievance filed March 31, 2021 on behalf of the worker members of the JHSC. It seeks payment for time to review the minutes of the JHSC meeting of January 13, 2021. [37] The Union argues that under the OHSA there is an obligation to maintain minutes of the JHSC and a general duty on the part of an employer to afford assistance to the JHSC. Accordingly, the Union argues, there is an obligation on the part of the employer to give JHSC members paid time to review JHSC minutes. Reliance is placed upon: s. 9(22), (34), (35) and s.25(2)(e). [38] I am not persuaded by this argument. The cited sections read as follows: s. 9(22) A committee shall maintain and keep minutes of its proceedings and make the same available for examination and review by an inspector. …. s. 9(34) A member of a committee is entitled to, (a) one hour or such longer period of time as the committee determines is necessary to prepare for each committee meeting; (b) such time as is necessary to attend meetings of the committee; and (c) such time as is necessary to carry out the member’s duties under subsections (26), (27) and (31). s. 9(35) A member of a committee shall be deemed to be at work during the times described in subsection (34) and the member’s employer shall pay the member for those times at the member’s regular or premium rate as may be proper. s. 25(2) … an employer shall, (e) afford assistance and co-operation to a committee and a health and safety representative in the carrying out by the committee and the health and safety representative of any of their functions; [39] Section 9(22) creates an obligation on the part of a JHSC to maintain and keep minutes. Section 9(35) specifically addresses the times in which a JHSC member is deemed to be at work and entitled to be paid. This rebuts the suggestion that a JHSC member is entitled to be paid for other times. Section 9(35) indicates the - 11 - times for which a worker is entitled to be paid are the ones described in s. 9(34). Section 9(34)(c) has no application: s. 9(26) and (27) relate to workplace inspections and s. 9(31) relates to the investigation of accidents in which a worker was killed or critically injured. Section 9(34)(a) and (b) deal with the time necessary to prepare for JHSC meetings and the time necessary to attend JHSC meetings respectively. This rebuts the suggestion that the open ended time for attendance at meetings referenced in s. 9(34)(b) includes preparation time. The review of minutes can fall within preparation for a meeting. There is no suggestion however, that the minutes were being reviewed for this purpose. Further, and in any event, the time for preparation is capped by the s. 9(34)(a) at one hour or such longer period of time as determined by the JHSC. There is no suggestion that the JHSC determined that more than one hour was required for preparation. There is no suggestion that the members of the JHSC were not paid for one hour preparation or such longer period which had been determined by the JHSC. [40] Finally, the more specific provisions of s. 9 just reviewed rebut the inference that an obligation to pay JHSC members for the review of meeting minutes can be found in the more general obligation of s. 25(2)(e). [41] Accordingly, the third grievance is dismissed. Conclusion [42] For the reasons stated, all three of the grievances are dismissed. Dated at Toronto, Ontario this 2nd day of March 2023. “Ian Anderson” Ian Anderson, Arbitrator