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HomeMy WebLinkAbout2023-00082.Grievor.24-02-26 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2023-00082 UNION# 2023-0582-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Shivani Ramoutar Treasury Board Secretariat Employee Relations Branch Labour Relations Advisor HEARING February 21, 2024 - 2 - Decision [1] The Employer and the Union at the Toronto East Detention Centre (“TEDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons. [2] On the parties’ agreement, the names of the grievor and two other employees involved in this grievance have been anonymized. The grievor is a Correctional Officer (“CO”) at the TEDC. On April 6, 2023 she filed a grievance claiming that the Employer violated Articles 2, 3 and Appendix COR 9 of the collective agreement, as well as various pieces of legislation. The remedy sought in the grievance is that she be made whole. At the hearing the grievor submitted a detailed list of remedies she is seeking. For the purposes of this decision it is unnecessary to outline those requests. [3] The grievance arises out of a series of events, the short version of which is that as a result of a WDHP complaint filed by another CO (“Mr. A”) alleging sexual harassment, workplace harassment and a poisoned work environment created by the grievor, the grievor was taken out of the workplace and put on a 15 month paid suspension before the Employer finally determined that there was no validity to the WDHP complaint. [4] It is unnecessary to outline in detail the incident that initially led to the grievor filing an Occurrence Report (“OR”) on February 12, 2022. The general outline, according to the grievor’s OR, is that on a night shift on February 11, 2022 the grievor was assigned as the driver for a hospital run from the TEDC to take an inmate to a hospital. The other two COs assigned to the hospital run were CO Mr. A and CO Mr. B. From the start of the assignment the grievor claimed that Mr. A. was rude in his interaction with her, and that his behaviour later at the hospital was unprofessional and aggressive. The grievor stated in her OR that she advised Mr. A that she would “write it up” since he did not want to tell her what was going on that caused him to treat her in the manner she believed she was being treated. - 3 - [5] In the OR the grievor asserted that this was not the first act of aggression or unprofessionalism by Mr. A, and provided some examples of his general behaviour towards her. She advised the Employer in the OR that she no longer felt comfortable around Mr. A and did not want to be stationed to work with him. She specifically stated that “I ask for management in any manner possible to determine his issue and course of remedy”. The OR was submitted to the TEDC Superintendent, Ms. Timoll. [6] Having received the grievor’s OR, the Employer asked the other two COs who had been present on the hospital visit to provide their own Occurrence Reports. Hence, on February 13, 2022 the Employer received ORs from Mr. A and Mr. B regarding the February 11/12, 2022 incident. Mr. A’s OR was five pages long as in it, in addition to reporting on what had occurred on the Feb 11/12, 2022 shift, he outlined a number of other incidents, as he alleged that the grievor had “tormented” him for a long time and he had suffered in silence previously. His allegations included that she had touched him inappropriately in 2019, once in the presence of a Sergeant and once at a night club event. He indicated in his OR that he had reported the two occasions to a Sergeant, indicated he wanted the grievor held accountable for her actions; and he wanted management to keep her away from him. Mr. A had one other allegation, but he did not know if the grievor was implicated in that matter. [7] The grievor was off work on sick leave on February 13 and 14, 2022, and again from February 18 on and did not return to work till March 28, 2022. As such, the Employer had to await her return before, by a letter dated March 28, 2022, Deputy Superintendent, Administration, Winston Wong requested that the grievor provide an OR reporting the details of the other incidents that she had generally described in her February 12, 2022 OR. She was also invited to provide any other information that she felt was relevant. [8] That same day the grievor provided an addendum OR to her original report. She indicated that she didn’t have additional dates and times of incidents as she had “shrugged” off the earlier incidents and had not made notes as she had not intended to make formal complaints about them. She nonetheless again outlined some behaviour by Mr. A that she described as “typical” of his dealings with her. The grievor stated as follows: “This report is based on the final stage of the evolution of his behaviour. It is no longer verbally unprofessional but now moving towards physical confrontation and intimidation which is why I finally wrote it down and submitted it. There is nowhere for him to go from here except downhill which is why he needs to be addressed.” This OR was submitted to both Ms. Timoll and Mr. Wong. - 4 - [9] Later on March 28, 2022 Mr. Wong sent the grievor a letter indicating that there was going to be an investigation regarding allegations of sexual harassment in the workplace, and that she would be put on a non-disciplinary suspension with pay for 20 working days, which period may be extended. The grievor did not know that the paid suspension was not about her OR, but rather about Mr. A’s WDHP complaint. She thought the Employer was going to be investigating her OR complaint, but later learned that about one month after she had filed her first OR in February, Mr. A had filed a formal WDHP complaint against her, making a number of serious allegations of workplace harassment and sexual harassment. [10] Thereafter, on April 25, 2022 the grievor was advised by David Wilson, Regional Director for the Toronto Region, that the paid suspension was being extended for a further 20 working days to May 23, 2022. A series of such letters were sent to the grievor throughout the rest of 2022 and into April 2023. She was kept off work on paid suspension, in 20 day increments, until her return to work in early July 2023. [11] In early 2023 Mr. A transferred out of the TEDC and went to work at the Vanier Institute for Women. His last shift worked at TEDC was on March 5, 2023. [12] It appears that the Ministry had engaged an outside investigator to look into Mr. A’s WDHP complaint. The grievor was interviewed in the course of the investigation as were other employees. The investigator submitted a final report to the Deputy Solicitor General on May 8, 2023. Only after the investigation findings were accepted by the Deputy Solicitor General were they forwarded to the institution. That occurred on June 27, 2023, when the findings were sent to Ms. Humphreys, Deputy Superintendent, Administration, and to the grievor by emails from Grace Chau, WDHP Advisor. The grievor’s email advised her of the completion of the WDHP investigation, and provided her with a number of documents including the Investigation Report and an Executive Summary of that report. [13] Ms. Humphreys promptly on June 28, 2023 sent the grievor a letter by email to advise her that following the investigation into Mr. A’s complaint, the investigator had concluded that the allegations of workplace harassment, sexual harassment and a poisoned work environment were all unsubstantiated. [14] Following that letter, the grievor was returned to work on July 3, 2023. [15] The Union asserts that following the grievor’s filing of her February 2022 OR the Employer failed to take any action, and in deciding to suspend the grievor with pay for an inordinately long investigation period, it acted improperly as it did not consider any other options for keeping her in the workplace pending the - 5 - investigation. As an option, it posits that the grievor could have been kept in the workplace on an opposite shift from the shift worked by Mr. A, as the grievor generally worked the night shift and Mr. A generally worked the day shift. Furthermore, the Union asserts that even if the Employer had initially suspended the grievor pending the outcome of the investigation into Mr. A’s complaint in order to keep them separated, once Mr. A left the TEDC in early March 2023, the Employer improperly kept her out of the workplace from that point until early July when she was finally returned to work. In making its arguments, the Union relies on the Board’s decision in Ontario Public Service Employees Union (Sabada) and Ontario (Solicitor General), 2023 CanLII 17144(ON GSB), (Gee). [16] The Employer maintains that, given the type of allegations in this instance, it would have been unsafe for the complainant in the WDHP complaint to have kept the grievor in the workplace pending the investigation. It asserts that since management did not know if there were other people who may come forward with similar allegations once the investigation commenced, it also had to protect the rest of its staff, so the only option was to put the grievor off work on suspension with pay pending the outcome of the investigation. [17] While conceding that management of the institution had not undertaken the specific test that was addressed in the Sabada decision, cited above, at the time that the grievor was suspended, and while also conceding that the investigation in this case had taken far longer than would have been expected, the Employer argues that even if it had considered the MOS referred to in the Sabada decision, for the same reasons as outlined above, in the interest of the safety of its employees it would have decided that the grievor should be suspended with pay pending the outcome of the investigation. That consideration would not have changed when Mr. A left the TEDC in early March 2023 as the investigation was still ongoing and the Employer was not aware of whether other employees had come forward with similar allegations. [18] In the Sabada decision, cited above, the Board considered thirty grievances filed by COs at the Toronto South Detention Centre. The issue addressed was whether the Superintendent, in suspending each of the grievors with pay pending an investigation regarding allegations of excessive use of force against inmates, had first considered whether each employee under investigation could remain in the workplace in some capacity; whether the Employer had considered the anticipated length of time it would take to conclude the investigation; and, the seriousness of the allegations. These obligations arose out of Minutes of Settlement reached between the Employer and the Union on January 10, 2012 in a grievance about the unpaid suspension of fixed-term COs pending an investigation (the “2012 MOS”). - 6 - [19] Based on attachments to the Sabada decision, it appears that in accordance with one of the terms of that settlement, on January 16, 2012, Steven Small, Assistant Deputy Minister, Institutional Services, sent a memo to all Regional Directors and Superintendents of institutions (the “Small Memo”) advising them that henceforth when an investigation was initiated, “Superintendents should consider whether the employee under investigation can remain in the workplace in some capacity, including whether the employee can be assigned other work within the workplace”. This was to be done whether the employee was going to be suspended with or without pay. Mr. Small went on to say that “some of the factors to be considered when deciding whether to suspend an employee with or without pay” include “(1) the anticipated length of time it may take to conclude the investigation; and, (2) the seriousness of the allegations.” [20] I note that in Sabada the Employer made the same argument as has been made here that even if the manager had followed the requirements of the Small Memo in that instance he would have done the same thing. It also argued there, as here, that the allegations were very serious. In that instance the Employer had anticipated that the investigation time would be shorter than it eventually was. There is no evidence before me that the length of time it may take to do the investigation was considered at all. [21] The arbitrator in Sabada found that the Employer had not established that the Superintendent had considered each of the factors in respect of each of the thirty grievors (at para. 43), and ultimately found that the Employer had failed to comply with the procedural requirements of the 2012 MOS (at para. 47). [22] On the basis of the submissions before me I find that Mr. Wong did not consider whether there was any way to keep the grievor in the workplace pending the investigation into Mr. A’s allegations. While Mr. Wong may have considered the seriousness of the allegations made by Mr. A, he apparently did not consider what the grievor had reported in her OR, which had been filed before Mr. A’s OR. As well, when he decided to suspend the grievor with pay pending an investigation into Mr. A’s allegations, there is no evidence that Mr. Wong considered how long the investigation may take. [23] As already noted, the investigation took an inordinately long time so that the grievor was kept out of her workplace for about 15 months. It is also noteworthy that ultimately the investigation found that having considered all the evidence on the balance of probabilities, none of Mr. A’s four allegations of sexual harassment and workplace harassment by the grievor was found to be substantiated and she was found NOT to have violated the Employer’s Respectful Workplace Policy. There is also no evidence before me that the Employer reconsidered the need for the paid suspension to continue even after - 7 - Mr. A transferred out of the TEDC in March 2023, even though by then the grievor had been on suspension out of the workplace for almost a year. [24] There is no dispute that the grievor was paid during her 15 month suspension, and that Ms. Humphreys, the Deputy Superintendent, Administration, acted promptly after she received the final investigation report to return the grievor to work. However, it is clear that the Employer did not follow the procedural requirements the Employer and Union had agreed to in the 2012 MOS before it decided to put the grievor off on suspension from work pending the investigation. [25] I have reviewed the grievor’s requests for compensation, most of which are heads of damages that would not be recognized as appropriate in a grievance arbitration. As examples, expenses relating to the grievor’s children’s moving, recovery treatment or therapy, or education, have no relationship to the issue in question. Similarly, since the grievor was fully compensated for all work she did prior to the suspension, there is no basis for claims for salary for the period of the grievor’s service prior to the suspension. [26] For all the reasons outlined above, the grievance is upheld. I remit the matter of remedy back to the parties. I will remain seized in the event that the parties are unable to reach an agreement. Dated at Toronto, Ontario this 26th day of February 2024. “Gail Misra” _________________________ Gail Misra, Arbitrator