HomeMy WebLinkAboutGopaul 23-02-231
IN THE MATTER OF AN ARBITRATION
BETWEEN:
BLACK CREEK COMMUNITY HEALTH CENTRE
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 5117
(the “Union”)
AND IN THE MATTER OF THE GRIEVANCE OF GOPAUL - OPSEU # 2021-5117-0004
Louisa M. Davie - Sole Arbitrator
For the Union: Sarah Khan
For the Employer: Luisa D’Alessio
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INTERIM AWARD
Overview
This award deals with the preliminary objection of Black Creek Community Health
Centre (“the Employer”) that the particulars filed by Ontario Public Service Employees’
Union, Local 5117 (“the Union”) regarding a grievance filed by Butterfly Gopaul seek to
expand the scope of the grievance.
In addition, the Employer asserts that many of the particulars provided by the Union
allege that the Employer engaged in anti-Union activities during the strike. Those
allegations are specifically precluded from being raised by a mutual “no reprisals”
clause in a Return To Work Agreement (“RTW Agreement”) entered into by the parties in
July 2021 following a six-week strike. The parties agree that issues of enforcement
arising out of the RTW Agreement are to be resolved pursuant to the grievance and
arbitration provisions of the collective agreement and that I therefore have the requisite
jurisdiction to determine that matter.
Finally, it is the Employer’s position that when the impugned particulars are removed
from consideration is evident that the grievance is without merit and should be
summarily dismissed as the Union has failed to establish a prima facie case.
For the reasons below I have determined that many of the particulars should be struck
either because they improperly seek to expand the scope of the grievance, or because
the claims alleged in the particulars are precluded from being raised by the RTW
Agreement, or because the particulars are simply irrelevant given the scope of the
grievance.
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However, I have concluded that even after the impugned particulars are set aside, this
is not a matter which ought to be dismissed because it does not disclose a prima facie
case. Although the argument made by the grievor that the Employer’s decision to end its
relationship with Jane Finch Action Against Poverty (hereafter “JFAPP ”) because of her
participation in the strike is a novel one, and although I have some doubt at this stage
that the grievor’s theory of the case gives rise to a collective agreement violation
(particularly given the Management Rights clause of this collective agreement), I am not
prepared to say, as I must if the Employer’s no prima facie case motion is allowed, that
the allegations, if proven, are insufficient to render arguable the conclusion that the
collective agreement and/or the RTW Agreement have been breached.
Facts
The grievance with which I am seized was filed on October 6, 2021. In the “statement of
grievance” section it states
STATEMENT OF GRIEVANCE
I grieve the violation of the collective agreement but not limited to article 4.01 and
the RTW Agreement which states no reprisals where the Employer has taken
work away from me - BCCHC is no longer participating as a partner agency
member of the Jane Finch Action Ageist [sic] Poverty. The Union reserves the
right to rely upon any other article (s)
I did not hear any evidence about discussions held during the grievance procedure
(which in any event are generally considered privileged) which might assist in
determining how the parties themselves have defined the scope of the grievance or the
issues in dispute. This motion must therefore be decided having regard only to the
written particulars filed and the submissions of counsel made at the February 2, 2023
hearing.
Following written correspondence received I issued an interim award on January 20,
2023 that directed the parties to produce documents and to provide full particulars so
that each would know the case they had to meet.
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The Union particularized its claim by correspondence dated January 23, 2023. The
Employer provided its particulars by letter dated January 28, 2023 but I need not detail
those particulars in order to address the motions made.
The Union’s particulars are produced verbatim below. For ease of reference later in this
award I have merely numbered the paragraphs.
Particulars
1. The Union reserves the right to amend, add to and/or delete these
particulars, particularly, but not exclusively, upon the receipt of
further production. The Union relies on statements of the grievor as
well as production documents to form these particulars.
2. The Union and Black Creek Community Health Centre are party to
the collective agreement. The current Collective Agreement has a
duration of April 1, 2020 to March 31, 2023.
About the Grievor
3. The Grievor was hired by BCCHC on February 1, 2010 as a full-time
permanent employee. She worked as a Community Health Worker.
Her portfolio was defined as a Community Health Worker, with a
specific portfolio as Community Development. She has worked at
BCCHC for 13 years.
4. In this role, the Grievor supports the health of individuals, groups
and communities. Examples of this include: doing outreach and
networking by bringing awareness and access to services and
programs to community residents, collaborating and coordinating
with community partners and staff members to identify
service/information/health promotion gaps in the community, and
work within JFAAP to support and work in collaboration with
members of JFAAP who mostly reside within the catchment area of
BCHCC.
5. With the Grievor’s leadership, the Community Health Worker’s team
met their annual target that ensured BCCHC’s funding. Moreover,
JFAAP is a significant part of the Grievor’s portfolio that allowed the
Grievor to meet her and her teams’ targets. Her leadership is in part
due to the Grievor’s seniority, experience and offering mentorship to
staff and residents in the BCCHC community.
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6. JFAAP is a grassroots organization in the community that is working
towards eradicating poverty by applying an intersectional lens on
social, economic causes of crime, while also fighting against police
surveillance and brutality towards racialized and marginalized
individuals in the community. JFAAP is also involved in organizing
and protests in the community to fight systemic and structural
racism. It promoted and participated in the Local 5117 strike by
amplifying the diverse and racialized workforce.
7. The Grievor has been a long-standing community activist who has
lived and worked in the Black Creek Humber River community. She
has deep roots and holds a great deal of trust of the community. She
has lived there for most of your life.
8. The Greivor along with Cheryl and Josi, who is her manager lived in
the community.
9. The Grievor supported the work of JFFAP as a Community Health
Worker. She had devoted many years to build and preserve the
partnership with JFAAP with BCCHC as a partner agency member.
About Local 5117 Strike
10. The Grievor is also part of the OPSEU bargaining team and played
an important role when Local 5117 went on strike in June 2021. The
strike lasted for approximately six weeks. It was divisive in the
community and harmed personal and professional relationships in
BCCHC and in the community.
11. For context, most of the workers at BCCHC are racialized and/or
precarious workers. The staff (most of receptions/health promotion
teams non designated staff) also lived in the community that was
disproportionately impacted by Covid19 pandemic. The strike
impacted people’s livelihood and many workers were reluctant to go
on strike. Workers for fighting for a 2% wage increase. When
bargaining talks broke down, workers went on strike.
12. The BCCHC sent letters to the workforce which was
dismissive/divisive and suggested that strike could have negative
repercussions for people.
13. Right before the strike occurred, Ms Prescott also tried to pay Sylvia
$10,000 as a compensation for de-escalating the Grievor during
bargaining.
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14. Following the strike, some employees left their employment at
BCCHC because of the divisiveness of the strike and the impact on
labour relations.
15. According to the Grievor, the Employer participated in anti-Union
activities and penalized her for her role during the strike. Among the
actions taken by BCCHC was to try de-escalate the activities of the
Grievor during bargaining.
16. In May 2021, the grievor heard a telephone conversation between
Ms.Cheryl Prescott and another former employee Sylvia Delgado,
where Ms. Prescott outlined that if the strike continued that her
position could be cut.
17. During the strike, the grievor witnessed Ms. Prescott make remarks
that were threatening in nature. An example of this was that people
could potentially lose their jobs if they supported the strike.
Social media post and the sexual assault
18. The social media post by the Grievor addressed an inappropriate
interaction between the Grievor and security guards who were hired
by BCCHC to monitor the strike.
19. During this interaction, one of the security guards was told that one
of Grievor’s son’s went into pschyosis. In response she replied: “At
least he did not get raped.” These words were uttered at the picket
line and in front of everyone. As a member of the community, the
security guard knew about the Grievor and her son. She was aware
of his past experience with sexual violence.
20. The Grievor notified the BCCHC’s Privacy Officer and Human
Resource person, (Michelle and Patience).
21. BCCHC did not hold the security guard accountable for disclosing
this private and traumatic incident about her son. The Grievor further
penalized when she was asked to remove her social media post
regarding the incident.
Acts of Reprisal
22. After returning from the strike, the Grievor was asked to submit her
work plan. Her work plan included her plans to work with JFAAP and
was approved. After submitting her quarterly stats she was told that
BCCHC was no longer partnering with JFAAP. The action was taken
suddenly and arbitrarily. JFAAP plays a vital role in the community.
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The Employer knows that Grievor’s efforts with assisting JFAAP
ensures that she was able to meet her performance targets for the
year. This change was not discussed nor was she briefed on what
portfolio would replace her community development role.
23. The Employer did not take the Grievor’s complaint seriously when
she complained about the pharmacist. She had been using the
pharmacy in BCCHC for filling her son’s prescription for his allergies
since he was born. After the strike, the pharmacist, Christina Habib
refused to fill her son’s prescriptions. The pharmacist gave no
reason to the Grievor. The Grievor complained about the Ms. Habib
to Doris Forlemu-Kamwa, who is the Director of Primary Health Care
that her son was being denied health services. The Employer did
investigate Ms. Habib’s alleged professional misconduct. The
problem continues to persist. Her son’s father and community
mother (Carol Clayton) also could not get her son’s prescription filled
even though they were able to in the past.
24. No action has been since taken since the complaint regarding Ms.
Habib’s professional misconduct and denied medical
25. Ms. Prescott’s daughter called Sylvia and threatened her family in
response to the strike activities that were happening at that time.
The Grievor was present with Sylvia during the call. She felt fearful
that the Executive Director and members of her family were
targeting members for a having a legal strike. The Grievor also felt
targeted because someone from the management was not
threatening members for going on strike.
26. The Grievor also witnessed that after the strike several colleagues
were vocal and active participants during the strike lost their
employment after the strike. The Grievor felt anxious and fearful
because she felt that she could also lose her employment for strike
activities.
27. One such example is when her colleague Sylvia was being targeted.
As an Addictions Counselor, Sylvia had to work certain shifts on the
weekend and evenings to meet her performance targets, because of
how her shifts were being scheduled. This negatively impacted her
work. Sylvia’s manager Josie would put another employee in that
shift instead. As a Union Steward, the Grievor felt that she could not
support Sylvia when her work was being targeted. Grievor felt
silenced and unsafe to do her job. She brought her concerns to the
Human Resources and nothing was done.
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Other acts of differential treatment
28. The Grievor has also received emails that have undertones of
reprisal and have received differential treatment. This conduct by the
Employer suggests that she continues to be penalized for
participating in the strike.
29. The Grievor was tested positive for Covid-19, she asked to work
from home and was denied, and told to use her sick benefits,
despite being able and willing to work, and hold meetings virtually.
The Employer had a hybrid model that allowed workers to work
remotely. The Grievor felt forced to borrow sick time even though
she did not have any sick time left and was capable of working that
shift. As parent, she felt that she could have used sick time to care
for her family.
30. The above incidents, were further exacerbated by having to work in
toxic work environment
Repercussion and impact of Reprisal
31. The removal the Jane Finch portfolio meant the grievor’s recognition
and credibility of work was taken away from her. Her contributions
with hitting performance targets were significantly impacted.
32. There were mental and health repercussions.
…
Union’s Position
33. The Employer engaged in anti-Union activities during the strike. The
actions threats, directly and indirectly, towards the Grievor’s
employment at BCCHC.
34. The Employer engaged in activities that was differential treatment
against the Grievor.
35. The Employer penalized the Grievor when it suddenly and arbitrarily
removed Jane Finch from her work at BCCHC.
Both article 4.01 of the collective agreement and the Return To Work Agreement are
referenced in the grievance. The relevant provisions of the Return To Work Agreement
are set out below.
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RETURN TO WORK AGREEMENT
3. NO REPRISALS
3.1 The Employer agrees that there will be no reprisals, discrimination or
retaliation for any act or inaction taken by any employee of the Employer arising
out of participation in the strike. In addition, the Union agrees that no employee
shall initiate or this award deals with the preliminary objection participate in any
workplace reprisal, discrimination or retaliation for any act or inaction taken by a
manager, bargaining unit member or any other employee, student or volunteer
during the strike.
3.2 The Union hereby withdraws OLRB File #’s 0741-21-U and 0782-21-U and
shall take all steps to advise the Ontario Labour Relations Board immediately.
3.3 Neither party will initiate any grievance or any claim in any court or tribunal
for damages or other relief, or any other claim, for any matter arising during the
strike, and will discontinue any that have been initiated.
…
4. DISPUTE RESOLUTION
4.1 The parties agree that any issue arising out of the enforcement of this Return
to Work Agreement may be resolved under the grievance and arbitration
provisions of the Collective Agreement.
I would note that the grievor, as a member of the Union’s bargaining committee, signed
the Return to Work Agreement.
Article 4.01 of the collective agreement is the Management Rights clause and states:
ARTICLE 4 – MANAGEMENT RIGHTS
4.01 The Union recognizes and acknowledges that, subject to the terms of this
Agreement, the management of the operations and the direction of the
employees in all respects, are fixed exclusively in the Employer, and
without limiting the generality of the foregoing, the Union acknowledges
that the Employer has the exclusive rights and power to:
a) maintain order, discipline and efficiency in the workplace;
b) hire, assign, direct, promote, demote, classify, transfer, lay off, recall,
and suspend, discharge or otherwise discipline employees for just cause,
subject to the right of an employee who has completed her probationary
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period to grieve to the extent and manner provided herein if the provisions
of this Agreement are violated in the exercise of these rights;
c) determine the nature and kind of business conducted by the Employer,
the methods and techniques of work, the schedules and hours of work, the
number of personnel to be employed, classifications and the qualifications
for the positions, and the extension, limitation, curtailment or cessation of
operations;
d) make and enforce and alter from time to time rules, policies and
regulations to be observed by the employees and not inconsistent with the
provisions of this Agreement;
e) have the sole and exclusive jurisdiction over all operations, buildings,
records and equipment.
Submissions
The submissions of the parties are summarized in highly abbreviated format.
The Employer maintained that most of the particulars were unrelated to the grievance.
The grievance was about the assignment of work to the grievor and the fact that the
Employer was no longer a partner agency with JFAAP. Particulars about the Employer’s
conduct vis-à-vis other employees, or about the grievor’s relationship with other persons
not employed by the Employer (such as the pharmacist about whom the grievor
complains) are beyond the scope of the grievance and not relevant.
Moreover, to the extent they relate to allegations that the Employer engaged in anti-
union activities during the strike, or otherwise engaged in improper conduct during
bargaining or the strike, the particulars are (a) beyond the scope of the grievance and
(b) specifically precluded by article 3.3 of the RTW Agreement. Employer counsel relied
upon Burley v Ontario Public Service Employees Union 133 L A C (4th) 97 (Ontario
Superior Court of Justice).
The Union submitted that the grievance should be liberally and broadly interpreted and
that the grievor’s complaints should not be summarily dismissed on a technical, narrow
reading of the grievance.
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The grievance is about the grievor’s view that she has been penalized, targeted and
treated differently because of her participation in the strike. She claims the Employer’s
conduct towards her is a reprisal or retaliation because of her involvement in the strike.
The particulars provide examples and context which show that the removal of the
JFAAP work was a reprisal. These circumstances and the history of the Employer’s
conduct provide the necessary background within which to assess the removal of the
JFAAP work. These matters should be heard on their merits and not dismissed because
of a technicality in form. The Employer has not suffered any prejudice merely because
the grievance was not articulated as well as it could have been. The Union relied upon
Electrohome Ltd. v. I.B.E.W., Local 2345 1984 CarswellOnt 2478, [1984] O.L.A.A.
No. 5, 16 L.A.C. (3d) 78; Blouin Drywall Contractors Ltd. and United Brotherhood
of Carpenters and Joiners of America, Local 2486 (1975), 8 O.R. (2d) 103 Ontario
Court of Appeal; Parry Sound Social Services v. O.P.S.E.U. [2003] 2 S.C.R 157; St.
Lawrence Lodge, Brockville and CUPE, Local 2107 unreported decision of
Gordon F. Luborsky dated November 22, 2013.
Decision
The Particulars and Scope of the Grievance Motion
An arbitrator does not have inherent jurisdiction to address or determine all matters or
issues in dispute between parties. An arbitrator’s jurisdiction is derived from the
collective agreement and the submission of a grievance filed under the collective
agreement to arbitration. That is why the scope of the written grievance referred to
arbitration is significant.
I agree that the written grievance should be given a broad interpretation to address the
real dispute between the parties. A more liberal reading of a grievance which may not
be as clearly articulated as it should be because it was written by lay persons may
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disclose issues which are implicit to the grievance filed. A liberal or generous
interpretation of grievances is in keeping with various arbitration awards which hold that
issues in dispute between parties to a collective agreement should be dealt with on their
merits and not dismissed on a technicality of form. As Iacobucci J. noted at page 194
of Parry Sound Social Services supra “These cases reflect the view that procedural
requirements should not be stringently enforced in those instances in which the
Employer suffers no prejudice. It is more important to resolve the factual dispute that
gives rise to the grievance.”
However, in this instance the Employer’s objection that the particulars should be struck
as they improperly expand the scope of the grievance filed is more than a technical
objection to procedural form. I agree with the Employer’s position that most of the
particulars go well beyond the scope of the grievance filed to address issues that are
fundamentally different than the issues identified in the written grievance.
A plain reading of the grievance, even a broad and liberal plain reading, indicates that
the grievance is about work being taken away from the grievor. The grievor asserts this
violates the collective agreement and is a reprisal in violation of the RTW Agreement.
That this is the substance of the grievance is evident not only from the statement of
grievance itself (“… where the Employer has taken work away from me…”) but also by
the remedial relief requested which includes
“• Explanation as to why work was removed after work plan approval in
September 2021
• Reinstatement of BCCHC as a partner agency member of the Jane Finch
Action Against Poverty.
• Moving forward discussion with me before any work is removed”
Many of the particulars however have nothing to do with the grievor’s work being taken
away. Instead, many of the particulars focus on the Employer’s conduct during
bargaining and the strike. These particulars are in clear violation of article 3.3 of the
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RTW Agreement which states “Neither party will initiate any grievance …for any matter
arising during the strike,…”. As part of the Union’s bargaining team the grievor signed
the RTW Agreement and is familiar with its terms.
The purpose of clause 3.3 of the RTW Agreement is to enable the parties to put the
strike behind them and get on with improving the collective bargaining relationship and
work towards restoration of harmonious labour relations. It is inconsistent with that
purpose, and a breach of clause 3.3 of the RTW Agreement, to permit an individual
grievor under the guise of “context” or “background” to litigate matters which arose
during the strike.
I also note parenthetically that the RTW Agreement indicates that the Union agreed to
withdraw certain unfair labour practice complaints filed with the Ontario Labour
Relations Board. Although the parties did not file those complaints with me it is
reasonable to conclude that these complaints would have been about the Employer’s
conduct during bargaining and the strike. They were withdrawn when the parties settled
the strike. In the face of that withdrawal, it is contrary to labour relations to permit the
grievor to litigate what she characterizes as anti-union activities.
A review of the particulars also indicates that not only do they not relate to work being
taken away from the grievor, but the particulars pleaded have nothing to do with the
grievor at all. Instead, they relate either to other employees, or other persons with whom
the grievor, but not the Employer, may have a relationship. This is true of the reference
in the particulars to the pharmacist with whom the grievor had an issue but who is not
an employee of the Employer.
In the result I find that many of the paragraphs of the particulars pleaded should be
struck because of one or more of the following reasons:
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(1) the paragraphs expand the scope of the grievance well beyond the issue
addressed in the grievance namely, the removal of work from the grievor.
(2) the paragraphs violated clause 3.3 of the RTW Agreement which prohibits “…
any grievance… for any matter arising during the strike…”
(3) the paragraphs relate to employees other than the grievor, or to circumstances
with other individuals not employed by the Employer.
The paragraphs of particulars pleaded which are struck out for one or more of these
reasons are paragraphs 12 to 21, paragraphs 23, 24, and 25, and paragraph 27 with the
exception of the final 2 sentences of that paragraph that the “Grievor felt silenced and
unsafe to do her job. She brought her concerns to the Human Resources and nothing
was done.”
Evidence with respect to any of these struck paragraphs is irrelevant to the grievance
referred to arbitration before me, can’t be adduced and will not be admitted at the
arbitration hearing.
The No Prima Facie Case Motion
Broadly speaking the paragraphs of particulars which remain deal with the grievor and
her work, including removal of the JFAAP work work she previously performed. (I
hasten to add that the remaining paragraphs have yet to be proven and the veracity of
these remaining particulars is disputed by the Employer.)
This leads me then to the Employer’s motion that the grievance should be dismissed for
failure to disclose a prima facie case. I have determined to dismiss this part of the
Employer’s motion.
In dealing with a prima facie case motion and arbitrator must assume the facts or
particulars pleaded are true. In this case the grievor grieves about the fact that her work
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assignment was changed, and work was taken away from her. In a nutshell it is her
theory of the case that the Employer did this as a reprisal or retaliation for her
participation in the strike. If proven that could be a violation of the “no reprisals”
provision of the RTW Agreement. By force of clause 4.1 the operation of the RTW
Agreement is linked to the collective agreement and issues arising from the
enforcement of the RTW Agreement may be dealt with through the grievance and
arbitration procedures set out in the collective agreement. As arbitrator I have
jurisdiction to inquire into this dispute and enforce the RTW Agreement which the
parties have made.
Clause 3.3 of the RTW Agreement prohibits grievances about matters “arising during
the strike.”. It does not preclude the grievor from filing a grievance about post strike
conduct which she asserts is a violation of the “no reprisals” clause of the RTW
Agreement. Here the post strike conduct of which she complains, and which she views
as a reprisal or retaliation, revolves around the reassignment of work and removal of
work she had traditionally done. Although it may be doubtful that such a claim breaches
the collective agreement simpliciter, it does raise an arguable case of breach of the
RTW Agreement.
In this regard I note my concurrence with the decision of arbitrator Whitaker in
Community Living Oakville and O.P.S.E.U. (Re) (2003), 121 L.A.C. (4th) 374, a case
cited with approval by the Court in Burley supra. In that case arbitrator Whitaker
concluded that the Union’s post strike suspension from membership of employees who
had crossed the picket line during the strike violated a “no reprisal” clause similar to the
one at issue here. In his award, after a review of some cases, arbitrator Whitaker
observed as follows:
My reading of these decisions reveals the following four themes.
Firstly, the "no reprisal" provisions reflect a joint intention that both parties will
refrain from doing what might otherwise be a law-ful exercise of their power or
authority (for example to pursue a grievance or to discipline for cause).
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Secondly, that this agreement of the parties is being done in order to put the work
stoppage behind them, get on with the collective bargaining relationship and to
generally improve that relationship.
Thirdly, that while the "no reprisal" provisions must be read broadly enough to
give them real effect, they must not be read so broadly as to sweep in constraints
on the parties' conduct that can-not reasonably be justified in view of the
language chosen to describe the nature of the "no reprisal" obligations.
Fourthly, the constraints which preclude the parties from doing things which they
might otherwise be entitled to do, preclude activ-ity which is tied in some causal
way to conduct which occurred or did not occur during the period of the work
stoppage.
Applying these themes here, in context of the Employer’s motion to dismiss for failure to
disclose a prima facie case, there is no doubt that, under normal circumstances, and
absent the “no reprisals” clause in the RTW Agreement, the Employer, in the exercise of
its authority as set out in the Management Rights clause, can assign work to
employees, and generally direct its operations. The issue in this case is whether the
Employer’s exercise of these management rights, and its conduct in doing what it would
otherwise be entitled to do, is precluded because it is tied in some causal way to the
grievor’s participation in the strike. Was the Employer’s conduct and exercise of its
Management Right retaliation or a reprisal because of the grievor’s actions during the
strike? That is a matter that can only be determined after the evidence has been heard.
Certainly, the Employer denies the grievor’s allegations. Its particulars refer to various
organizational and operational considerations, changing community needs and the
expectations of its funding agencies as factors which necessitated changes to the
grievor’s work (as well as changes to the work assignments of other employees).
In the result I am unable to dismiss this grievance as disclosing no prima facie case.
There is an issue which remains in dispute between the parties which can be heard on
its merits. Did the Employer cease its participation as a partner agency member of
JFAAP and thereafter change the grievor’s work assignment as a reprisal for her
participation in the strike?
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The parties are directed to contact my office to schedule hearing dates.
Dated this 23rd day of February, 2023.
Louisa Davie
Louisa M. Davie