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HomeMy WebLinkAbout2008-3994.Deprophetis.10-11-03 DecisionCommission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO   Fax (416) 326-1396 7pOpF   GSB#2008-3994 UNION#2008-0205-0161 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Deprophetis) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORENimal Dissanayake Vice-Chair FOR THE UNIONDanny Kastner Paliare Roland Rosenberg Rothstein LLP Barristers & Solicitors FOR THE EMPLOYERGeorge Parris Ministry of Government Services Labour Practice Group Counsel HEARING February 10 & 11, April 21, June 4, July 5, October 7, 2010. - 2 - Decision [1]0U6WHYHQ'HSURSKHWLV ³JULHYRU´ KDVILOHGDJULHYDQce dated November 28, 2008. He has been employed as an Employment StDQGDUGV2IILFHU ³(62´) since March 1992. In essence, the grievance alleges that Ms. Mili New has subjected him to a pattern of harassment and discrimination on the basis of disability since she assumed duties as his manager in June 2008. This decision relates to a non-suit motion made by the employer at the conclusion of WKHXQLRQ¶VFDVH [2] In its recent decision in Re Allin et al, 2008-1407 (Dissanayake), following a review of the authorities, at para 10 the Board described the test that applies in non-suit motions as follows: ³«WKH«PRWLRQPXVWEHXSKHOGLIWKHXQLRQKDVIDLOHGWRDGGXFH evidence sufficient to support its claim. In assessing sufficiency, the Board must determine whether the union has proven its case on a balance of probabilities, if its witnesses are believed and the benefit of any inferences to be drawn are ruled in the unionVIDYRXU´ - 3 - employer. At a fact-finding meeting, the parties can be represented by legal counsel, although often they represent themselves. The parties may also bring witnesses or submit statements from witnesses. He testified that the process ³LVWKHVDPHDVKHUH´UHIHUULQJWRWKHKHDULQJ EHIRUHWKH*6%+HVDLGWKDWLWZDVDV³DQLQformal process, where I allow them to tell their story. I sit as facilitator and ask questions and they provide me with documents and HYLGHQFH´$WWKHHQGRIWKHPHHWLQJKHZould render a decision with reasons. If the employer indicates that it would not comply, an order to pay is issued. The grievor testified that once his decision is certified in court, it becomes enforceable, subject to the right of appeal to the Ontario Labour Relations Board. [5] According to the grievor, until 2008 the province-wide performance standard was that an ESO should complete 120 files in a fiscal year. In 2008 it was changed to 140. The grievor admitted that in the fiscal year March 2008 to March 2009, he failed to meet that standard. When asked why, he said that in that period he had family issues and medical LVVXHVDQGDGGHG³P\SRVLWLRQLVDOVRWKDWI cannot meet standards when I am being KDUDVVHG´ [6] When asked what his medical issues were, he replied that he had difficulty keeping awake while driving and that he also experiHQFHG³SK\VLFDOLVVXHVpain, dizziness, eye LUULWDWLRQDQGJHQHUDOGLVFRPIRUW´+HVDLGWKDWWKHVHV\PSWRPVFRLQFLGHGZLWKKLVPRWKHU¶V diagnosis with breast cancer in May 2007. [7] The grievor testified that until 2007 he attended at his designated office in Hamilton only 2 or 3 times a week. After 2007 his attendance at the Hamilton office declined further - 4 - because he had less administrative support in the office. Since spring of 2007, unless he had to attend a meeting or training, he worked at home. He said, ³7KDWZDVWKHDUUDQJHPHQWIURP the time I started. My job description says that I had discretion. There was never any checking as to when I came or left. You get your cases and you complete them as effectively DQGHIILFLHQWO\DV\RXFDQ´:KHQDVNHGZKHUHhe obtained authority to work from home, he replied that at the time of KLUHKHZDVWROG³ZHZLOOJLYH you your cases. You have an assigned office with facilities and administrative support. How you choose to use those is at \RXUGLVFUHWLRQ´+HVDLGWKDWZKLOHVRPH(62V preferred to work in the office regularly, others worked exclusively at home or wherever they chose. [8] The grievor testified thDWLQ - 5 - the area where his work station was located in the Hamilton office was noisy he had difficulty concentrating. Ms. Suhr agreed at that point that the grievor could work out of the St. Catharines office. Since then he attended at Hamilton only once or twice a week at the most, and did most of his work at St. Catharines or at home. [9] The grievor testified that he had attributed his fatigue issues to aging. However, his family physician referred him for testing by a specialist. The testing was done, but he was not informed of the results. While the doctor mentioned of hiatus hernia and a breathing blockage, he was not told that he suffered from anything other than stage 2 hypertension. [10] The grievor testified that until June 2008 he continued to work at St. Catharines or at home, with only occasional attendance at the Hamilton office. When Ms. New replaced Ms. Suhr in June 2008, she scheduled individual meetings with every ESO in the Hamilton office. When she met with the grievor on July 16, 2008, she told the grievor that she had looked at some of his decisions and that he was using words too sophisticated for the audience. She provided him with a ministry maQXDORQ³+RZWRZULWH´7KHgrievor testified that he found that strange because the manual did not apply to³OHJDOZULWLQJ´DQGQRRWKHU(62KDGHYHQ seen it. He told Ms. New that he disagreed with her, and that his audience was intelligent. [11] At this meeting, Ms. New also told the grievor that she had discovered that he was not attending at his designated office in Hamilton regularly, and told him that he should be there at least two days a week. The grievor pointed RXWWR0V1HZWKDWKHZDVD³ILHOGRIILFHU´ and did not attend at the Hamilton office unless he had a fact-finding meeting scheduled. According to the grievor, Ms. New commenteG³:HOO6WHYHQZHQHYHUJHWWRVHH\RXU - 6 - EHDXWLIXOIDFH´DQGUHSHDWHGWKDWVKHH[SHFWHG him to attend the Hamilton office at least two days a week. The grievor testified that he did not know what to make of it, because Ms. New was a friend and a former colleague. [12] According to the grievor, Ms. New also told him that another ESO who had more seniority had asked for the work cubicle which the grievor was occupying and that he should switch cubicles with her. The grievor told her that former Acting Manager Mr. Rick Hughes had assigned that cubicle to him and that the other cubicle had no window and was in a noisy area which would make it uncomfortable for him. When Ms. New insisted, the grievor said ³:HOOLILWSOHDVHV\RXWKHQ,¶OOGRLW´0V1HZUHVSRQGHG³7KDW¶VQRWJRLQJWRSOHDVHPH :KDWSOHDVHVPHLVP\VRQ´ [13] According to the grievor, during this meeting he told Ms. New that lately he had significant trauma in his life and that he also had some health issues. Ms. New commented to WKHHIIHFW³VR\RXVD\´7KHJULHYRUXQGHUVWRRG from that comment that Ms. New was not believing what he said. He asked Ms. New whether she wanted more details about his SUREOHPV6KHUHVSRQGHG³DQ\WKLQJ\RXVD\ZLOOEHFRQILGHQWLDO´7KHgrievor proceeded to UHODWHLQIRUPDWLRQDERXWVRPH³IDPLO\DQGSHUVRQDOPDWWHUV´ZKLFKKHWHVWLILHGZHUH³QRW completely known in the office at WKHWLPH´:KHQKHWROG0V. New that he had hypertension, she responded that she also suffered from hypertension, and said that now she was the PDQDJHURIWKLVSRVKRIILFHDQGFRPPHQWHG³,VQ¶WWKDWORYHO\´0V New did not respond when the grievor told her that he also suIIHUHGIURP³EUHDWKLQJEORFNDJH´DQGPHQWLRQHG ³KLDWXVKHUQLD´:KHQWKHJUievor mentioned that his mother had passed away after a year long battle with cancer, Ms. New responded that her mother who lived in the UK also suffers - 7 - from a serious illness, and that she visits her from time to time. From this conversation the grievor felt that Ms. New was trivializing his problems by suggesting that she had dealt with similar problems successfully. [14] The grievor testified that he also mentioned to Ms. New that his daughter had been diagnosed with MS at age 16. Ms. New commented that another ESO, who she named, also suffers from MS. The grievor testified that he was distressed that Ms. New, who had assured him that any information he provided would be kept confidential, had divulged to him another (62¶VLOOQHVV+HIHOWWKDW0V1HZZDVEHOLWWOLQJWKHFKDOOHQJHVKHIDFHG [15] Ms. New also informed the grievor that ³DSURVHFXWLRQLQLWLDWLYH´LVWREHLQWURGXFHG and inquired whether he would be inWHUHVWHGLQEHLQJLWV³OHDG´He initially told her that he was not interested because he did not believe that necessary resources would be made available. However, when Ms. New assured him that she would take care of that, he agreed. The grievor felt that by sayiQJ³DOOWKHVHGLVFRQFHUWLQJWKLQJV´0V1HZZDVDWWHPSWLQJWR get him to agree to be the lead of the prosecution initiative. [16] The grievor testified that Ms. New suggested that he should consider taking a leave of absence without pay to deal with the challenges he faced. He responded that he could not afford to do that. At the end of the meeting, Ms. New advised him that there was no formal accommodation in place for him based on his disclosuUHDQGWKDWVKHZDV³IUHHWRLJQRUHWKDW GLVFORVXUH´+HIHOWWKDWVKHZDVGRLQJWKDWfor malicious and nefarious reasons. She also repeated that she expected him to attend at the Hamilton office at least twice a week. The grievor replied that he would try his best to do that. The grievor testified that when he left the - 8 - meeting on July 16, 2008, he expected that he would be named the lead of the prosecution initiative. However, during a program meeting held at Vineland in August 2008 it was announced that another individual had been appointed. The grievor testified that he was not particularly upset about that. [17] The next event was in August 2008, when Ms. New sent an e-mail requesting a meeting with him to discuss a complaint she had received from a claimant. The grievor testified that he could not understand why he had to come to Hamilton to have that discussion, when it could have been dealt with by e-mail. When they met, Ms. New informed him that a claimant had complained that he had taken an excessive period of time to render the decision. The grievor explained to her that the particular file comprised of five complaints, that the claimant kept raising new issues, and that he had to wait for responses from the employer, and that in any event the decision had been rendered. Ms. New responded that if the decision had been rendered, then that was the end of the matter. The grievor testified that he could not understand why Ms. New had to question him, because a copy of the decision would have EHHQLQWKHILOHDQG³LWZDVZHOONQRZQLQWKHRIILFH´WKDWWKLVSDUWLFXODU claimant had filed a previous claim raising the same issues and had caused much disruption in the office. [18] In October 2008 Ms. New announced that she would be conducting performance reviews for all ESOs. The grievor was given a date and time in October. Then he was DGYLVHGWKDWGXHWRDFRQIOLFWLQ0V1HZ¶VVFhedule that appointment has to be cancelled, and th he was given an appointment for November 27 2008. The grievor testified that he happened to be in the Hamilton office at the time of his original appointment and was surprised to see that Ms. New was meeting with another ESO. The grievor testified that at the performance - 9 - review meeting on November 27, 2008, Ms. 1HZ³DFFXVHGKLP´RIQRWDWWHQGLQJWKH Hamilton office two days a week as directed, and told him that she was now directing that he DWWHQGWKH+DPLOWRQRIILFH³ILYHGD\VDZHHNQLQHWRILYH´DQGWKDWLIWKHJULHYRUZLVKHGWR leave early, he had to obtain her permission. She also stated that before the grievor closed a file, it must be approved by Regional Program &RRUGLQDWRU ³53&´ 0DUN6KXUZLQ+HZDV told that these requirements were imposed because he had ignored her direction that he attend the Hamilton office two days a week, and becausHRIKLV³ODFNRISHUIRUPDQFH´:KHQWKH JULHYRUDVNHGZKDWVKHPHDQWE\³ODFNRISHUIRUPDQFH´0V1HZH[SODLQHGWKDWVKHKDG reviewed his work on ESIS and his Bell Canada calling card receipts. She stated that when she examined the times the grievor had swiped his card in and out, she could not account for eleven days in August. The grievor felt that she was suggesting that he had done no work on those eleven days. He told her that if she wanted to know what he did on those days, she should have asked him in August, and not wait until November, and suggested that she should get a IT person to investigate what work he did on the eleven days by examining his computer. Ms. New responded that that was unnecessary and that she was satisfied that the grievor was not managing his time properly. The grievor told her that he believed that the eleven days in question included some vacation he took, and also coincided with work he did on a complicated case involving hundreds of pages and significant legal research. Ms. New did not respond to his explanation, but told him that he had failed to meet the target of completing 140 files during the fiscal year under review, and that she was most concerned that he was denying 47 percent of the claims he decided. She told him that his rate of denials ZDV³ZD\WRRKLJKDQGKDGWRFRPHGRZQ´6Ke proceeded to review some specific claims the grievor had denied, and stated that they were wrongly decided. The grievor told Ms. New that she was wrong and not him. Ms. New closed the meeting stating that the grievor would - 10 - be receiving a performance appraisal in which all of the concerns discussed would be documented. The grievor testified that he pleaded with Ms. New not to do that, that micro- management was unnecessary, and that he would try to do better. However, the same day, the grievor received an e-mail from Ms. New, with a mid-year performance appraisal and an ESIS file closure report. The e-mail included the following: I am confirming the strategy that we will now adopt to resolve some of the performance issues that we have discussed today. th As of tomorrow 28 November 2008 you are expected to attend the office every day between 9-5, each file will EH4$¶GE\WKH53&EHIRUHFORVXUH Please advise Mark when the files are ready for closure, he will in turn advise you when you can mark it as closed in ESIS. Confirm with me before attending any premises of employers/employees. [19] During testimony the grievor reviewed some of the negative assessments and comments set out in the performance appraisal and explained why he felt that those were not reasonable. He was particularly critical of0V1HZ¶VSRVLWLRQWKDWKHKDGQRWIROORZHG procedure that required that files be closed once the decision had been rendered. He testified that a file can only be closed when all of the work on it is complete. After a decision is rendered, he had to send it to the parties by Express Post, and obtain and file confirmation that it has been delivered. If it is not deliverable, he had to search for the party and serve it. He did not close a file until it was confirmed that the decision had in fact been received by the parties because until then the work on the file was not complete. The performance appraisal also set out that a quality assurance review had revealed that the grievor had not followed proper policy and procedure in the manner he dealt with four specific claims. The grievor GLVDJUHHGZLWK0V1HZ¶VFULWLFism and explained why it was appropriate to act as he did in each case. - 11 - [20] With regard to the expense claim, the grievor testified that he included all of the information required to approve an expense claim, but the Director of Operations, Mr. Don Hall, requested more information. He provided that information also. Yet, the claim remains unpaid. He included the denial of the expense claim in the instant grievance because he saw it DVSDUWRI0V1HZ¶VKDUDVVPHQW *ULHYRU¶VWHVWLPRQ\LQFURVVH[DPLQDWLRQ [21] The grievor agreed that since 2008, Administrative Assistant Ms. Elena Lazar was responsible for checking all expense claims for accuracy and completeness, and that if any information was missing she would contact the employee. When employer counsel suggested that Ms. New would testify that she had no involvement with the denial of his expense claim, the grievor replied that all he knew was that management approval was required for all expense claims. He agreed that he did not know whether the authority to approve expense claims had been delegated to the Administrative Assistant, and that no one had told him that Ms. New was responsible for the denial of his expense claim. [22] The grievor agreed that he first raised with Ms. Suhr his concerns about commuting to Hamilton on April 5, 2007, after she directed him to attend at the Hamilton office five days a week to work on the backlog initiative. He testified that Ms. New at the time was the manager in charge of the backlog initiative, and that she supported his position that he could perform that work at the St. Catharines office. However, Ms. Suhr would not agree. [23] The grievor agreed, when confronted with e-mails he had sent to Ms. Suhr, that in order to convince Ms. Suhr that he should not be required to work at the Hamilton office, he - 12 - gave her only four reasons. First, that the area where his work station was located at the Hamilton office was noisy, and it was difficult to concentrate. Second, WKDWKHKDG³IDPLO\ obligations to retrieve my children who attend out of bounds VFKRROV´7KLUGWKDWKHKDG ³HOGHUO\DQGVLFNO\SDUHQWVZKRUHTXLUHFDUHDQd assistance on a regular basis and being in FORVHSUR[LPLW\WRWKHPLVHVVHQWLDO´)RXUWKZKHQKHVSHQWVLJQLILFDQWWLPHLQWKH+DPLOWRQ RIILFHKHWHQGHG³WRGHYHORSH\HVWUDLQVRUHQHss, irritation, head aches, dry mouth and a JHQHUDOOHWKDUJLFIHHOLQJ´DQGWKDWKHKDG³DGLVWLQFWIHHOLQJI may have been suffering from a IRUPRIVLFNEXLOGLQJV\QGURPH´7KHJULHvor confirmed that after he submitted these reasons, Ms. Suhr compromised, and agreed that he could work two days at Hamilton and three days at St. Catharines. The grievor testified that he did not know what restrictions on his ability to do the duties of an ESO, if any, resulted from his illnesses. Nor did he provide the employer with any medical evidence that he had any such restriction. The grievor agreed that up to the time of the filing of the instant grievance on November 28, 2008, he had not been medically diagnosed with any illness, and that he did not provide Ms. New any medical evidence supporting a need for accommodation. He testified that he did not feel that was necessary since he was being accommodated as a result RI0V6XKU¶VDJUHHPent that he could work 3 days at St. Catharines. [24] The grievor agreed that at the meeting on July 16, 2008, Ms. New told him that no formal accommodation was in place for him, but GHQLHGFRXQVHO¶VVXJJHVWLRQWKDWVKHDOVR told him that if he had a need for accommodation he should provide medical substantiation. He agreed that at the time, no medical diagnosis had been made that he suffered from any LOOQHVVDQGWKDWWKHLQIRUPDWLRQKHKDGSURYLGHGZDVEDVHGVROHO\RQD³VHOIGLDJQRVLV´ :KHQDVNHGZK\KHGLGQRWSURYLGH³PHGLFDOV´RQ-XO\ZKHQ0V1HZGLUHFWHGKLP - 13 - to report to the Hamilton office daily, the grieYRUUHSOLHG³%HFDXVH,thought she was doing it IRUPDOLFLRXVUHDVRQV´7KHJUievor testified that while Ms. New may have intended to do so, he did not recall her asking for medical substantiation for accommodation at the performance review meeting on November 27, 2008 either. [25] Employer counsel referred to a medical note dated February 3, 2010 from the JULHYRU¶VGRFWRUZKLFKUHDGV This patient has a medical condition which restricts his travelling time to no more than 50 kilometres daily, although exemptions could be made for certain emergencies. This restriction has been in place since December 2008 to the present time and will continue until further notice. Steven has been accommodated at the St. Catharines office since 2008. The grievor agreed that this note covered a period subsequent to the filing of the instant grievance, and that this was the only medical substantiation he had provided to the employer at any time. [26] The grievor testified that when he received the performance appraisal he felt betrayed, that it was not sincere, and that Ms. New haGEHHQ³HQRUPRXVO\XQIDLUDQGRIIHQVLYHWRVD\ WKHOHDVW´+HGLVSXWHGDOORIKHUQHJDWLYHFRPPHQWVDV³H[Dggerated, false, untrue and a IDEULFDWLRQ´+HWHVWLILHGWKDW he was particularly distressed about Ms. New doing a case by case review of his work, by her conclusion that some cases were wrongly decided, and by her criticism that he had denied 47 percent of the claims. He testified that he spoke to Acting Director, Mr. Dino Mozzon about his concerns and told him that it was an attempt by Ms. 1HZ³WRKDUDVVDQGLQWHUIHUHZLWKP\VWDWXWRU\REOLJDWLRQWRGHFLGHFDVHV´ - 14 - [27] The grievor agreed that as an ESO, it was a regular part of his job to do investigations, demand production, execute search warrants, issue tickets if orders to pay are not complied with, and to prosecute under the Provincial Offences Act. He was aware that RPCs review random files handled by every ESO for quality assurance. Counsel pointed out that in the performance appraisal it is explicitly stated that the irregularities in the four files were revealed as a result of quality assurance. The grievor stated that he did not know whether that was true, because Ms. New had told him that she went through his files personally. He stated that quality assurance is usually done for training purposes, but that in this case it was done ³DVDSXQLWLYHPHDVXUH´+HDJUHHGWKDWZKLOH0V New had told him that in the future all of his files had to be reviewed by a RPC before closing, that never happened and that his files were reviewed for quality assuraQFHOLNHDQ\RWKHU(62¶VILOHV [28] Employer counsel asked the grievor what he meant when he testified that Ms. New had taken the position that he had no formalDFFRPPRGDWLRQLQSODFH³IRUPDOLFLRXVDQG QHIDULRXVUHDVRQV´7KHJULHYRUH[SODLQHGWKat he had described to Ms. New his medical issues. Yet she told him that she was tryiQJWRGHWHUPLQHZKHWKHU³DQ\´DFFRPPRGDWLRQZDV needed. From this it was clear to him that she did not believe what he told her. When counsel asked whether it would have been different, if Ms. New had requested medical substantiation for the illnesses he had mentioned, the grievor asked why Ms. New should make such a request when the previous manager did not. HeVDLG³,FDQ¶WVHHKRZDQHZPDQDJHUFDQVD\ ³,GRQ¶WFDUHZKDWWKHRWKHUPDQDJHUGLG,ZDQWWRGRLWP\ZD\´6KHKDGPDGHXSKHUPLQG LUUHVSHFWLYHRIZKDW,KDGWRVD\´ - 15 - [29] When questioned with reference to documents filed in evidence, the grievor agreed that during the relevant period the production standard of 140 files per fiscal year was applicable to him and that he had not met that standard. However the grievor testified as IROORZV³%XWWKH\NHHSFKDQJLQJ,GRQ¶WSD\DWtention to these numbers. Also it depends on the type of file. What I got were mostly priority cases. They have to take that into account. 7KHVHWWDUJHWDVVXPHVUHJXODUILOHV´&RXQVHO asked whether he told management that he could not meet the target because of the type ofILOHVDVVLJQHGWRKLPWKHJULHYRUUHSOLHG³, GLGQRWEHFDXVH,GRQ¶WFDUH about the type of files assigned to me. I always try to do my best. 7KH\VKRXOGWDNHWKDWLQWRDFFRXQW´ [30] Employer counsel suggested to the grievor that Ms. New did not at any time tell him that he had to meet certain numbers of claims allowed or denied. The grievor agreed and said that what she told him was that his denials ZHUH³WRRKLJKDQGKDGWRFRPHGRZQ´&RXQVHO reviewed with the grievor one of the files Ms. New had discussed during the performance review meeting, where Ms. New was critical of him because he considered that claim to be settled despite the absence of a settlement in writing. The grievor testified that Ms. New was wrong because the procedure manual did not require a settlement to be in writing. When asked whether he reviewed the manual after the PHHWLQJKHUHSOLHG³,SUREDEO\GLG´:KHQ FRXQVHOVDLG³,I\RXIRXQGWKDW0V1HZZDVZURQJ\RXZRXOG¶YHVKRZQWKHPDQXDOWR KHU´WKHJULHYRUUHSOLHG³VKHJDYHPHQRRSWLRQV´:KHQFRXQVHOVWDWHGWKDWWKHPDQXDOKDV not been put in evidence to show that Ms. New was wrong, the grievor agreed, but added ³7KHPDQXDOGLGQRWVD\ZKDWVKHVDLG,KRSHP\ODZ\HUSXWVLWLQ´ - 16 - [31] With regard to the proper procedure on when to close a file, the grievor stated that it ZDVKLVSRVLWLRQWKDWDGHFLVLRQLVQRW³UHQGHUHG´XQWLOKHUHFHLYHVFRQILUPDWLRQWKDWWKH decision had in fact been received by the parties. The following exchange occurred: 4XHVWLRQ³6RLIDQHPSOR\HULV out of the country and had not received your decision, then \RXKDYHQ¶WUHQGHUHGWKHGHFLVLRQ´"$QVZHU³\HV´4XHVWLRQ³$QGLIKHQHYHUUHFHLYHVLW WKHGHFLVLRQLVQHYHUUHQGHUHG"´$QVZHU³<HV0D\EH,PLVXQGHUVWRRGLW´ [32] The grievor agreed that an ESO is required to carry out GXWLHV³LQDFFRUGDQFHZLWKWKH ESA and current policies and procedures as set out by the Director of Employment 6WDQGDUGV´&RXQVHODVNHGWKHJULHYRUKRZDPDQDger can ensure that ESOs comply with that requirement without reviewing their work and pointing out areas of concern. The grievor replied that a manager is entitled to do that, but stated that Ms. New went beyond that. He VDLG³6KHFDQJLYHKHURSLQLRQ%XWVKHWROG me that her opinion was right and mine was wrong. First of all, to be right, she must point to a number or page in the procedure that I GLGQ¶WIROORZ6KHGLGQ¶WGRWKat. She just said that I diGQ¶WIROORZSURFHGXUH´:KHQ counsel suggested that the grievor could have researched the procedure manual or the Act, and proved that Ms. New was wrong, the grievor replied that he tried to explain that he was right, but Ms. New was not interested. DECISION [33] I note here that during cross-examinaWLRQHPSOR\HUFRXQVHOFKDOOHQJHGWKHJULHYRU¶V testimony at various points and put him on notiFHWKDWHPSOR\HU¶VWHVWLPRQ\ZRXOGEHWRWKH contrary. However, in accordance with the standard applicable to non-suit motions, for the present purposes I accept the grieYRU¶VYHUVLRQRIIDFWVDVWUXH - 17 - [34] It should also be noted that the instant grievance does not allege a failure to accommodate per se. The Board was advised that the grievor had filed a separate ³DFFRPPRGDWLRQJULHYDQFH´)ROORZLQJGLVFXVVLRQV as to whether that grievance should be heard together with the instant grievance, the parties agreed not to do so. Therefore, the human rights aspect of the instant grievance is limited to an allegation that Ms. New discriminated against the grievor on the basis of disability by challenging an accommodation that he had arranged with his previous manager, before allowing that arrangement to stand. [35] The grievor has made a number of allegations which he claims constitutes an improper exercise of management rights by Ms. New intended to harass him. The grievor alleges that Ms. New discriminated against him because of his disability by challenging an accommodation allowed by his previous manager, and that this also formed part of her pattern of harassment. The grievance also encompasses a distinct allegation that Ms. New contravened administrative law principles by interfering with thHJULHYRU¶VMXGLFLDODXWKRULW\ under the Employment Standards Act. [36] In Re Gareh, 1665/98 (Brown) the Board discussed the test to be applied in deciding a motion for non-suit, and how it differs from the decision-making process the Board engages in after the completion of the whole case. The Board at p. 7 wrote: In the case at hand, I must decide the motion for non-suit as well as serve as the trier of fact. At this stage, my task is to determine whether the evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence. It is not logically possibly to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether I could rule that the union has proven its case on the balance of probabilities, if its witnesses are - 18 - believed and it is granted the benefit of all reasonable inferences. The decision-making process on a motion for non-suit cannot ignore the standard of proof, but this process entails an application of that standard which differs markedly from the way it would be applied after both parties had closed their case. At that point, in determining whether the union had proven its case on the balance of probabilities, I would scrutinize the credibility of witnesses, and I would not draw inferences so as to resolve doubts in favour of the union, because the benefit of doubt should not be granted to the party bearing the onus of proof. [37] Two principles emerge from the foregoing passage. First, it is the evidence, and not WKHDOOHJDWLRQVWKDWPXVWEH³VXIILFLHQW´WROHDGWKH%RDUGWR rule in favour of the union. Second, in determining the sufficiency of the evidence in a motion for non-suit, the applicable VWDQGDUGRISURRIFRQWLQXHVWREH³RQDEDODQFHVRISUREDELOLWLHV´7KHGLIIHUHQFHLVWKDWLQ non-suit motions the credibility of the witnesses are not assessed and their testimony is accepted as believable. In addition, any reasonable inferences arising from the evidence are drawn in favour of the union. [38] In support of his allegation of harassment and discrimination, the grievor has adduced evidence with regard to the following: Ms. New questioning him about not regularly attending at the Hamilton office; trivializing and/or not believing his information about personal and health problems he was facing and challenging the arrangement Ms. Suhr had agreed to; TXHVWLRQLQJKLPDERXWDFODLPDQW¶V complaint about delay; criticizing his work performance and issuing a negative performance approval; and the denial of his expense claim. [39] In this decision I have UHYLHZHGWKHXQLRQ¶VHYLGHQFHRQeach of those allegations in considerable detail. That evidence reveals that the grievor considered himself to be a very competent and hardworking conscientious, ESO. As such he did not consider it necessary or appropriate for the manager to closely monitor or supervise his work. He felt that his - 19 - previous manager trusted him to diligently and efficiently carry out his duties without the need for close supervision. He resented the fact that Ms. New did not extend to him that same IOH[LELOLW\RUWUXVW+HIHOWWKDWVKHZDV³PLFURPDQDJLQJ´KLP7KLVLVKLJKOLJKWHGE\KLV testimony to the effect that Ms. New could not ignore how the previous manager managed him and to do it her own way. He testified that ³GLIIHUHQWPDQDJHUVFRXOGQRWKDYHGLIIHUHQW UXOHVRQKRZWRPDQDJH´7KHJULHYRUDOVRVWrongly believed that he had followed procedure correctly and that Ms. New was wrong in criticizing him. He also felt that before directing him to do something differently, Ms. New was obliged to point out that his way was contrary to a specific provision in the procedures manual. He was convinced that she was fabricating criticism of his work for malicious and nefarious reasons. [40] The grievor testified that he followed procedure correctly as set out by the Director, and that it was Ms. New who was wrong. However, his own testimony indicates that he followed procedure only so long as he agreed with them. For example, as the evidence set out at para.29 above indicates, he did not consider the performance standard of 140 completed files per year to be fair, because it did not take into account the complexity of particular files. He felt that as long as an employee was doing his best, numbers should not matter. Therefore, he did not pay attention to numbers set out by management. [41] While I have no reason to doubt that the grievor believes that Ms. New was motivated by malicious and nefarious reasons, his belief is not a sufficient basis for me to draw the inference that Ms. New harassed or discriminated against the grievor. His subjective belief, however strongly and sincerely held, is not proof that he was targeted by Ms. New for harassment or discrimination. There is no doubt that Ms. New and the grievor disagreed on - 20 - how some functions are to be carried out. Assuming for the moment that I agree that in fact the grievor had followed the procedure as laid out by the Director, and that Ms. New was ZURQJLQKHUFULWLFLVPRIWKHJULHYRU¶VZRUNSHrformance, that still would not be sufficient evidence of harassment or discrimination. Nor is there any evidence that the various illnesses the grievor was suffering from, i.e. his disability, had anything to do with how Ms. New treated him. The evidence could at most lead to a conclusion that as a manager Ms. New had no understanding of the proper procedure as laid out by the Director.That would go to her competence as a manager, but is not evidence that she targeted the grievor for harassment or discrimination. In this regard I note that there is not an iota of evidence that there was any history of conflict or bad blood between Ms. New and the grievor.To the contrary, the grievor testified that they were former colleagues and friends. The evidence is that upon assuming duties as manager, Ms. New met individually with all ESOs to discuss their work performance, not only the grievor. When she met with the grievor, she told him that she had noticed that he was not regularly attending at his office in Hamilton and asked him for an explanation. She was not convinced following the discussion that sufficient grounds existed for exempting the grievor from the normal requirement that employees must attend their own office. There is no evidence that Ms. New allowed any other ESO such an exemption either. The evidence that a new manager wanted to find out why one ESO was not complying with the normal requirement of attendingRQH¶VGHVLJQDWHGRIILFHRQDregular basis is not evidence of harassment or discrimination. While a more lenient and trusting manager may have accepted the grounds offered by the grievor, particularly his self diagnosed ailments, does not PDNH0V1HZ¶VFRQGXFWPDOLFLRXVRUQHIDULRXV7KLVLVPRUHVREHFDXVHDIWHU³FKDOOHQJLQJ KLVDFFRPPRGDWLRQ´DVWKHJULHYRUSXWLW0V1HZXOWLPDWHO\GLGQRWWDNHDZD\KLV - 21 - exemption. He was allowed to continue with the arrangement the previous manager had agreed to. >@7KHJULHYRU¶VFRQFHSWRISURSHUPDQDJHment is demonstrated by his testimony about 0V1HZ¶VPHHWLQJZLWKKLPDERXWDFRPSODLQWa claimant had made that he had taken too long to issue his decision. In KLVPLQGWKDWZDVSDUWRI0V1HZ¶VSDWWHUQRIKDUDVVPHQW However, there is no evidence that the grievor was in any manner sanctioned as a result of the complaint. All Ms. New did was inquire into it. When the grievor explained that the claim in question was complex and involved significant legal research, and that he had issued the decision within 9 months, Ms. New went no further. This evidence, when objectively viewed, simply cannot give rise to any suggestion of harassment. In fact, it would have been dereliction of management responsibility if Ms. New had ignored a complaint lodged by a claimant without making any inquiry. The evidence also indicates that the grievor did not consider that he was obliged to follow management policies or directives if he was of the opinion that they were unfair or made no sense. However, it is the emSOR\HU¶VULJKWWRJLYH directions to employees. As long as such directions are not contrary to the collective agreement or some other law, it is not open to an employee, and indeed it is not open to this Board, to overruled the employer, based on fairness or what makes sense. [43] I also conclude that the union has not adduced sufficient evidence that could reasonably lead to a conclusion that there ZDVDQ\KDUDVVPHQWGLVFULPLQDWLRQRQ0V1HZ¶V part, in the manner she carried outWKHJULHYRU¶VSHUIRUPDQFHDSSUDLVDO$SSUDLVDOVZHUHGRQH for all ESOs by Ms. New. There is no evidence that the grievor was the only ESO who had negative assessments. There is no doubt that the grievor strongly disagreed, and it is fair to - 22 - VD\IHOWLQVXOWHGE\0V1HZ¶VQHJDWLYHDVVHVVPHQW of his performance. In almost every case, the disagreement stems from the different interpretation or understanding between them as to what the proper procedure was. The mere prooIWKDW0V1HZ¶VLQWHUSUHWDWLRQRISURFHGXUH ZDVLQFRUUHFWDQGWKHJULHYRU¶VZDVFRUUHFWE\itself would not satisfy the onus the union has to prove its allegation of harassment. That ZRXOGQHFHVVLWDWHDQLQTXLU\LQWR0V1HZ¶V motivation in making incorrect criticism. HoweveUWKHGLIILFXOW\ZLWKWKHXQLRQ¶VFDVHLVWKDW there is no evidence to establish that Ms. 1HZ¶VLQWHUSUHWDWLRQXQGHUVWDQGLQJZDVZURQJWR begin with. While reference was made to a ³SURFHGXUHPDQXDO´LWZDVnot introduced into evidence. Therefore, there is no evidence, as to what the manual stipulates on any of the disputed procedures, or that 0V1HZ¶VFULWLFLVPZDVLQFRQVLVtent with its provisions. The only evidence I am left with is that Ms. New and the grievor had different understandings of what the procedure ought to be. That is not a sufficient or reasonable basis to draw the inference the union wishes me to draw. [44] The same reasoning applies to the denial of the expense claim. While the grievor WHVWLILHGWKDWKHVXEPLWWHG³DOOLQIRUPDWLRQUHTXLUHGIRUDSSURYDO´WKHUHLVQRHYLGHQFHDVWR what information he submitted or what was required to be submitted by policy. Assuming that Ms. New was responsible for the denial of the claim, (which the employer denies) therefore, there is no evidence which would allow a conclusion that she was not justified in denying the claim, leave aside that she did it for some malicious reason. [45] Whether the grievor sought accommodation based on a disability and whether Ms. New complied with the employeU¶VGXW\WRDFFRPPRGDWHLVthe subject of a separate grievance which is not before me. I find, however, that the evidence as to the interaction - 23 - between the grievor and Ms. New with regard to his illnesses, particularly her questioning of the grievor about not attending the Hamilton office regularly, is not a sufficient basis for concluding that Ms. New harassed the grievor or discriminated against him because of his disability. What it does suggest at the most LVWKDW0V1HZGLGQRWWUHDWWKHJULHYRU¶V description of his health issues based on a self-diagnosis seriously, and that at the time she was not convinced that his health issues (or his other personal issues) warranted a continuation of the arrangement he had with his previous manager. As a manager, she was entitled to satisfy herself that continuation of the arrangement was justified. It cannot been seen as harassment or discrimination. [46] The union relies on the evidenFHRQWKHDOOHJHG³LQWHUIHUHQFHZLWKMXGLFLDODXWKRULW\´ of the grievor as supporting its harassment allegation. In addition, the union claims that Ms. New acted contrary to administrative law principles relating to natural justice. I have concluded that the union has not established a prima facie case on either basis. The grievor testified that the meetings he held with claimants and employers to be comparable to hearings before the Grievance Settlement Board. Union counsel conceded that an ESO is not the same as a Vice-Chair of this Board. However, he submitted that just as it would be improper for the chair of this Board or an administrator toH[SUHVVFRQFHUQDERXWD9LFH&KDLU¶VUDWLRRI grievances allowed/dismissed, it was improper for Ms. New to have done so in relation to the JULHYRU¶VGHFLVLRQV > - 24 - the evidence also is that an ESO may decide a claim in one of many different ways. The decision may be based on a teleconference or even on documentation only. A significant part RIDQ(62¶VMRELVWRLQYHVWLJDWH$Q(62takes initiatives such as obtaining and executing search warrants, and seizing docXPHQWV+HYLVLWVHPSOR\HUV¶DQGFODLPDQWV¶SUHPLVHVWR meet with them. He issues tickets or fines, and acts as prosecutor. The grievor testified that KHFRQVLGHUHGKLPVHOIWREHD³ILHOGRIILFHU´ These duties, which the grievor admitted under cross-examination were a regular part of his job, are not typical of judicial or quasi-judicial positions. Indeed, they are inconsistent with such positions. In the absence of any legal authority, I am not in a position in the circumstanFHVWRILQGWKDWDQ(62H[HUFLVHV³MXGLFLDO DXWKRULW\´LQWKHWUDGLWLRQDOVHnse that phrase is understood. [48] In the circumstances therefore, I find that if the Director of Employment Standards has set out particular procedures that ESOs are expected to comply with in their decision-making process, it would be appropriate for a manager to point out any non-compliance. To illustrate, if the procedure requires that no settlement is to be accepted unless it is in writing, it would be appropriate for a manager to raise with a ESO a non-compliance. I do find it problematic, however, that a manager would direct an ESO that his rate of denials is too high and had to come down. I agree with the union that such a direction would force the grievor to decide cases differently than he otherwise would and that insisting on quotas of claims allowed and denied, can preclude determination of each claim on its merits. [49] My agreement with the unLRQKRZHYHUWKDW0V1HZ¶VFULticism and directions in this regard were inappropriate, does not assist the union. The union has not been able to point to any law, legislative or common law, that may haYHEHHQFRQWUDYHQHGDVDUHVXOWRI0V1HZ¶V - 25 - direction. While the evidence may establish that Ms. New gave improper directions in exercising her managerial authority, that does not lead to a finding, in the absence of some evidence, that in doing so she acted maliciously to harass the grievor. Nor does the evidence lead to a finding that she violated any legal right the grievor had, under the collective agreement, legislation or common law. Again, the evidence would only go to her competence as a manager. [50] It follows from the foregoing findings that the union has failed to make out a prima- facie case in support of the grievance, which the employer is required to defend against. Therefore, the motion for non-suit succeeds and the grievance is dismissed. rd Dated at Toronto this 3 day of November 2010. Nimal Dissanayake, Vice-Chair