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HomeMy WebLinkAboutChan 23-08-01 IN THE MATTER OF AN ARBITRATION BETWEEN: The Art Gallery of Ontario and OPSEU (Grievances of M. Chan (2018-0535-0003, 2019-0535-0003, and 2019- 053500002) Re: Termination, Discrimination and Harassment) Before: William Kaplan Sole Arbitrator Appearances For the Employer: Alan Freedman Hicks Morley Barristers & Solicitors For the Union: Jorge Hurtado Morrison Watts Hurtado & Buchner Barristers & Solicitors The matters in dispute proceeded to a hearing held by Zoom on July 26 & 27, 2023. 2 Introduction This case concerns a long-service employee who filed discrimination and harassment grievances in August 2018 and April 2019, and a termination grievance in May 2019. Several attempts to mediate proved unsuccessful and the outstanding issues proceeded to a hearing held by Zoom on July 26 & 27, 2023. Background The grievor worked at the Art Gallery of Ontario (employer) She was a cleaner. By agreement, she went on a reduced work schedule in March 2016. She is currently 78 years old and has been in receipt of a pension from the employer since December 1, 2016 (when she turned 71). In or around 2013-2014, a new supervisor was hired and, in the grievor’s view, that new supervisor used demeaning and rude language in directing her, and she bullied, harassed and discriminated against her. The grievor identified numerous instances of what she described as discriminatory and unfair treatment, as well as a number of violations of the Ontario Human Rights Code (Code). This led to many c omplaints to management and to the first harassment and discrimination grievance (although the grievor was off on medical leave between December 2017 and March 2019). Investigators (one internal and one external) looked into the grievor’s complaints, which were determined to be unfounded. 3 While the grievor was on her 2017-2019 leave, she expressed an interest in returning to work. The employer sought further information as it was specifically entitled to do under Article 32.03 of the collective agreement (which imposes collateral cooperation requirements on employees). A return-to-work meeting was held in early March, at which time the grie vor advised that she could perform the duties of her position (except stairs). A Functional Abilities Form (FAF) had been earlier completed, but for whatever reason was not discussed at this meeting. According to that FAF, the grievor’s restrictions included walking (300 metres), hourly five-minute breaks, and no stairs, no ladders, and no lifting, pushing or pulling of anything. When the grievor returned to work on March 26th, she refused to perform her assigned duties, relying on the restrictions in the FAF, not the sole stairs restriction she had identified at the meeting held at the beginning of the month. The grievor’s return to work was accordingly put on hold as further inquiries about her restrictions ensued, a process that became problematic when the grievor repeatedly refused to sign a medical consent form notwithstanding Article 32.03. The grievor was encouraged by the employer to sign a consent form and cooperate with the third-party Occupational Health c onsultant. She declined numerous requests. The local union got involved but to no avail. On April 30, 2019, the 4 grievor was warned that if she did not sign the consent form and cooperate with the consultant, her employment would be terminated. On May 14, 2019, the grievor’s employment was terminated. Employer Submissions In the employer’s view, all three grievances should be dismissed. There was no evidence of any harassment or discrimination. The 2017 harassment and discrimination grievance also alleged an improper denial of a statutory holiday shift. The grievor had no entitlement to it and was not even the most senior employee (who had received it). Her grievance was filed more than a year after the events in question. That grievance also alleged that the grievor had been harassed and discriminated against by her direct manager. These claims were subject to two investigations and the claims were not founded. The reports of each investigation were rational and evidence-based and should be accepted. The 2018 harassment and discrimination grievance, filed around the same time as the grievor’s eventual termination, was equally without merit. The employer was entitled, under the collective agreement – and the law more generally – to seek medical information from employees returning to work after a lengthy medical absence. It needed that information to accommodate and the authorities were clear that employees must 5 cooperate in that process. The grievor failed to cooperate even after multiple requests were made that she do so; even when encouraged by the union to do so. Put another way, in management’s submission, the grievor was obligated to cooperate in her return to work. Instead, she refused to sign the consent form so that her restrictions could be carefully evaluated and decisions made about whether she could be accommodated. By refusing to participate in this process, the grievor effectively abandoned her job and her termination was, therefore, with just cause. In the alternative, the employer took the position that the employment relationship was completely and irrevocably frustrated and that the grievor’s sole entitlement would be to collective agreement severance and notice. Union Submissions In the union’s view, and turning to the first of the harassment and discrimination grievances, the grievor had been bullied, harassed and discriminated against by her direct manager. The grievor had filed many detailed complaints about this. The grievor was fully entitled to compensation for this mistreatment. The employer failed to schedule the grievor on a statutory holiday and she was also fully entitled to compensation for that. There were two investigation reports, but neither could be relied on, especially the internal, and therefore suspect, investigation. 6 The second harassment and discrimination grievance – filed mere weeks before the unjust termination – should also, in the union’s view, be upheld. In making demands for an unnecessary – indeed redundant – medical consent, the employer harassed and discriminated against the grievor. When the grievor returned to work on March 26th, she was assigned to a new problematic work area, and when she raised her restrictions, as set out in the FAF, the employer, instead of discussing them with her and listening to her, sent her home and then terminated her. Both of these harassment and discrimination grievances, the union argued, should be upheld and an appropriate remedy issued. There was, in the union’s further submission, no just cause for termination. The grievor wanted to work but the employer refused to let her. There was no legal basis to demand a new FAF as there was a current one on file. The most that the employer could have done – should have done – was place the grievor on a short administrative suspension as accommodation details were worked out. Instead, the employer unjustly terminated the grievor. She was entitled to immediate reinstatement and full compensation including damages. 7 In the alternative, the union asked for a finding that the employment relationship was frustrated and that the grievor receive notice and severance in accordance with the collective agreement. Decision After carefully considering the evidence and arguments of the parties, it is my view that the allegations of harassment and discrimination cannot be sustained. Insofar as the first harassment and discrimination grievance is concerned, the grievor’s complaints and concerns were fully investigated and it is quite clear from the investigation reports that the unfounded conclusions were fully justified. The two investigation reports were thorough, logical, responsive to the grievor’s complaints and well-reasoned. The claim for a missed shift raised as part of the 2017 grievance is also unfounded on the facts and was, in any event, filed long out of time. The second harassment and discrimination grievance must also be dismissed. There was nothing offside, harassing or discriminatory in the employer – in the circumstances – seeking up-to-date medical information as there were inconsistencies between what the grievor said in the first return-to-work meeting and what was outlined in the FAF. When that came to light, the employer was 8 obliged to investigate to ensure that the grievor could be safely returned to work. The employer’s repeated requests to the grievor to sign the consent form were respectful and appropriate. The grievor was terminated for failing to provide a medical consent. The grievor had recently provided one – after some delay – leading to the first FAF. However, as just noted, the employer was fully justified in seeking a second one when the grievor asserted at the return to work meeting that her only restriction were stairs, but then several weeks later, advanced the FAF and its more detailed list. In these circumstances, the employer obviously wished to clarify the confusion and the grievor had an obligation to cooperate and that includes where reasonable – this case – to sign a medical consent form. The grievor’s obligation was straightforward, and notwithstanding the employer’s repeated efforts, and those of the union, the grievor refused. (For whatever this observation is worth, it is far from clear to me, given the grievor’s FAF restrictions and given the duties of her cleaning position especially “Effort” and “Working Conditions,” that she could ever have been accommodated in employment without 9 undue hardship, a conclusion that is reinforced by the position’s Physical Demands Analysis.) In all the circumstances, in my view, what has occurred here is that the employment relationship was frustrated. Therefore, and applying the terms of the collective agreement, the grievor is entitled to notice and severance of one year amounting to $34,313.76 ($24.44 x 27 hours a week x 52 weeks). The employer is directed to pay this amount, subject to deductions required by law, within thirty days of the issue of this award. Conclusion Accordingly, and for the foregoing reasons, the harassment and discrimination grievances are dismissed and the unjust termination grievance is allowed in part in that a finding has been made that the employment relationship was frustrated and the grievor is entitled to compensation in accordance with the collective agreement 10 as set out above. At the request of the parties, I remain seized with the implementation of this award. DATED at Toronto this 1st day of August 2023. “William Kaplan” William Kaplan, Sole Arbitrator