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Home My WebLink About2010-2380.Lefkowitz.11-11-28 Decision Crown Employees rieva nce Settlement oard 1Z8 l. (416) 326-1388 x (416) 326-1396 t des griefs es employés de la t Z8 l. : (416) 326-1388 léc. : (416) 326-1396 UNION#2010-0224-0031 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ETWEEN G B Suite 600 180 Dundas St. West Toronto, Ontario M5G Te Commission de règlemen d Couronne Bureau 600 180, rue Dundas Oues Toronto (Ontario) M5G 1 Té Té Fa GSB#2010-2380 B Ontario Publicloyees Union (Lefkowitz) Union (Ministry of Community Safety and Correctional Services) Employer Service Emp - and - The Crown in Right of Ontario BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Law FOR THE EMPLOYER Eric del Junco del Junco Counsel Services ractice Group Peter Dailleboust Ministry of Government Labour P Counsel HEARING October 10, 2011. - 2 - Decision 1. Marsha Lefkowitz is a Registered Nurse working at the Owen Sound Jail. On December 7, 2010, she filed a grievance after an incident that occurred on November 18, 2010. Her grievance stated: I am grieving that I was verbally assaulted by an operational manager and also by a member of the public who was allowed access into the institution by this same operational manager. I believe that my rights under Bill 168 have been violated. I am also grieving that the Employer failed to protect me and continues to protect me under Bill 168. I am also grieving a violation of the WDHP, health and safety, and all other applicable policies and articles. 2. In its particulars provided to the Employer, the Union contended the following:  Gender was a factor in OM Y.’s misconduct towards the grievor on November 18, 2010 and that this conduct constituted discrimination and harassment on the ground of gender as well as workplace bullying and violence.  This conduct created a poisoned work environment for the grievor and other female staff.  The employer knew or ought to have known that OM Y. was likely to engage in misconduct of this nature and was reckless or negligent in failing to take steps to prevent such misconduct prior to November 18, 2010.  The employer failed to take adequate steps following this incident to remedy the poisoned work environment thereby exacerbating the harm suffered by the grievor.  The conduct of OM Y. and the employer was contrary to:  the collective agreement including Articles 3 and 9  the Human Rights Code, including ss 5 and 7  the Occupational Health and Safety Act, including s 25 and Part III.0.1 3. In brief opening comments, the Union informed the Board that it would seek fifty thousand dollars in damages for stress, embarrassment and humiliation suffered by the grievor and for the violation of her rights. It will also ask for an order that OM Y. not be allowed to return to the workplace until and unless he can show that he has received medical attention regarding his treatment of women. Additionally, the Board will be asked to order that all staff at the Owen Sound Jail be given training on WDHP issues with a focus on gender issues, violence and bullying in the workplace and the reporting of these matters. 4. It was also asserted in the Union’s particulars that “for many years before the incident which precipitated this grievance, OM Y’s sexist conduct was notorious throughout this - 3 - workplace. He was known by all staff as the “hound dog” reflecting his tendency to compulsively engage in inappropriate sexual behavior in the workplace. His violent temper and tendency to engage in violent verbal outbursts were also notorious.” According to the Union’s particulars, three other incidents involving females have occurred. Each involved female Correctional Officers. One incident was in 2007, one in 2008 and another in 2009. There were also “general incidents” of misconduct mentioned “over the last five years.” 5. The Employer responded to the Union’s particulars and noted that it would object to the admissibility of the evidence set out above regarding any alleged past inappropriate conduct of OM Y. At the first day of hearing this objection was argued. This decision deals only with this preliminary matter. 6. Mr. Dailleboust, for the Employer, suggested that the evidence the Union seeks to introduce regarding alleged past incidents involving OM Y. should not be allowed because that evidence is not relevant to the matter at hand. Further, it was contended that because the earlier incidents alleged by the Union were not grieved at the time, evidence might be difficult to gather. Given that these alleged incidents did not involve the grievor, it is difficult for the Employer to understand what remedy this Board might order. For the Union to now make such a request is improper and it would be wrong for the Board to make any such order. 7. The Employer noted that all but one of the past incidents referred to by the Union involving OM Y. occurred prior to the enactment of Bill 168. Incidents pre-dating that legislation ought not be viewed through its lens. 8. It was also the Employer’s view that any allegation of a violation of Article 9 of the Collective Agreement should not be allowed given the lack of any resulting “serious illness” in the Union’s particulars. 9. The Employer relied upon Re The Crown in Right of Ontario (Ministry of Health and Long Term Care) and OPSEU – (Press) (October 9, 2007), GSB#2003-1461 (Mikus); - 4 - and Re The Crown in Right of Ontario (Ministry of Transportation & OPSEU – (Sager, Shelley et al) (October 6th 2004) GSB#2000-0377 (Mikus). 10. Mr. del Junco, for the Union submitted that the grievance at hand poses three questions for this Board to answer. The first is whether the Employer was negligent because of its failure to respond to the past misconduct of OM Y.; the second is whether gender was a factor contributing to OM Y’s conduct toward the grievor on November 18, 2010; finally, as of November 18, 2010 was there a poisoned work environment for female staff as the result of OM Y.’s conduct and if so, how did it affect the grievor in terms of the impact of the November 18th, 2010 incident. It was suggested that there can be no doubt that the evidence the Union seeks to admit is relevant to the consideration of this matter. 11. The Union attempted to put the Employer’s mind at rest that no individual remedy would be sought regarding the past allegations. However, the historical context is important, indeed necessary, for the assessment of liability for the November 18th 2010 incident and resulting remedy for the grievor and the Union. It was noted that the Employer’s response to the Union’s particulars was that this incident was a one-time occurrence. The Union challenges that view and wants to call evidence that disputes its veracity. The Employer should not now be allowed to have evidence disallowed because of its own past failure to investigate incidents of Mr. Y.’s misconduct. 12. In response to the Employer’s objection, the Union reminded the Board that the matter at hand alleges violations of both the Collective Agreement and various statutes. This is not a case where the Union relies solely on Article 9 of the Collective Agreement. Further, the Union acknowledged that it had not yet provided medical evidence regarding the matter of harm. However, it reserved its right to do so. 13. By way of reply the Employer noted that the Human Rights Code is not mentioned on the face of the grievance. The Employer was not made aware prior to the filing of the particulars that gender would be at issue. Accordingly the probative issue for this Board is what was the conduct of OM Y. on November 18, 2010 and what remedies, if any, flow as a result. - 5 - 14. Much of the Employer’s submission were concerning what I should, or more specifically should not, make of the evidence of past incidents regarding OM Y. Those arguments are appropriately made at the end of the case, not when determining whether to allow the evidence to be submitted in the first instance. 15. I will hear the Union’s evidence regarding the alleged past incidents. However, I reserve on the matter of whether the evidence should be admitted. Submissions can be made in final argument regarding admission and appropriate weight of this evidence in final submissions. 16. Accordingly, any documents in the Employer’s possession regarding the particularized incidents should be disclosed to the Union. 17. If there are other concerns regarding the scope of evidence during the course of this matter, the Board will deal with them as they are raised. 18. This matter will proceed on our scheduled dates. D ated at Toronto this 28th day of November 2011. Felicity D. Briggs, Vice-Chair