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HomeMy WebLinkAbout2022-11863.McGann.24-04-12 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# 2022-11863; 2022-11864; 2022-12129; 2022-12130; 2023-00368; 2023-00370 UNION# 2022-0526-0037; 2022-0526-0038; 2023-0526-0003; 2023-0526-0004; 2023-0526-0008; 2023-0526-0010 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McGann) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Adam Veenendaal Morrison Watts Hurtado & Buchner Counsel FOR THE EMPLOYER Katie Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING March 27, 2024 - 2 - Decision [1] I have before me six grievances referred under Article 22.16.1 of the Central Collective Agreement between the parties. Article 22.16.1 provides for the resolution of grievances “in an expeditious and informal manner”. The mediator/arbitrator is to assist the parties in attempting to settle the matter. Should efforts be unsuccessful, the mediator/arbitrator is to determine the grievance by arbitration. In doing so, Article 22.16.1 provides the mediator/arbitrator may “limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate”. Decisions reached are without precedent unless the parties agree otherwise. Decisions are to be succinct and to be issued within five days of the completion of the proceedings unless the parties agree otherwise. Attempts to resolve these matters through mediation were unsuccessful. A case management decision was issued on February 26, 2024. The parties agreed to waive the 5 day time limit for the issuance of this award. GSB File Nos. 2022-11863 and 2022-11864 [2] The grievances which are the subject of GSB File Nos. 2022-11863 and 2022- 11864 both relate to issues of appropriate compensation when attending hearings at the Grievance Settlement Board (“GSB”), on December 21 and 16, 2022 respectively. There is nothing in the record about the actual length of the hearings on those days, but the Grievor claims also for the time he spent before and after the hearing consulting with Union counsel: in total, 7.25 hours for December 21; and 7.75 hours for December 16, 2022. The Employer credited the Grievor for 5.75 hours for each of the days in question. [3] The Grievor is employed by the Court Services Division of the Ministry of the Attorney General as a Court Registrar. His terms and conditions of employment are as set out in Appendix 32 of the Collective Agreement. Under the terms of Paragraph 3 (a) of Appendix 32, the Grievor is a Category 2, Flexible Part-time (“FPT”) employee, and as such is guaranteed a “minimum 1500 hours per annum (57.5 hours bi-weekly)”. Under paragraph 3(b), “The Employer maintains the right to schedule employees beyond the minimum hours….”. [4] By virtue of Paragraph 4(a) of Appendix 32, Article 22 of the Collective Agreement applies to the Grievor. Article 22.5.1 provides: - 3 - An employee who is a grievor or complainant and who makes application, through the Union, for a hearing before the GSB or the Ontario Labour Relations Board (OLRB) shall be allowed leave of absence with no loss of pay and with no loss of credits, if required to be in attendance by the Board or Tribunal. Article 22.5.1 shall also apply to pre-hearings, mediation/arbitration or mediation under auspices of the GSB or OLRB. [5] For the purposes of this decision, I assume the Grievor was required by the GSB to attend the hearings. There is no suggestion that the Grievor was not granted a leave of absence to attend the hearings in question. The only issue is whether he experienced a “loss of pay” as a result. [6] As a FPT, the Grievor is entitled to be paid for the hours for which he is scheduled to work by the Employer. If those hours are less than 1500 hours in a year, then he is entitled to be paid for 1500 hours nonetheless. On average, this works out to 5.75 hours per work day. However, as the Grievor is well aware from past awards involving himself, FPTs are not guaranteed any hours in a given work day: see, for example Ontario Public Service Employees Union (McGann) v Ontario (Ministry of the Attorney General), 2023 CanLII 89650 (ON GSB). [7] The Employer did not “schedule” the Grievor to attend the GSB hearings: rather he was required to do so by the GSB. The only question, therefore, is whether the Grievor suffered any loss of pay from the “1500 hours per annum (57.5 hours bi-weekly)” to which he is entitled under the Collective Agreement as a result of attending the hearing. There is no evidence that he did. On the contrary, the evidence is that the Employer credited him with the daily average of 5.75 hours for each of the hearing days. [8] The grievances are accordingly denied. GSB File No. 2022-12129 [9] On January 25, 2023, the Grievor was in attendance at a GSB hearing. The hearing ended around noon. At 12:21 PM, the Grievor received an email from Monica Simion, the Manager of Court Operations. Ms. Simion copied the Grievor’s immediate supervisor, who, for reasons which will become apparent, I will refer to in this decision only as “AA”. Ms. Simion is the manager of AA. Ms. Simion’s email read: - 4 - Hello Dag, As you know the GSB hearing has concluded for the day at 12 noon. Please let me know if you are taking vacation for the rest of the day using your vacation credits, or would like an unpaid leave for the remainder of your working hours otherwise please return to work. The hearing today began at 1030am. Not 930am as it typically does. [AA] please connect with Dag to document how he intends to use the remainder of his working hours for today. Thank you, Monica [10] The Grievor responded, alleging it was inappropriate for Ms. Simion, as opposed to his direct supervisor AA, to contact him “because I have been directed to contact my immediate supervisor for directions after completing my participation at the GSB”. He filed the subject grievance alleging this constituted “discrimination and harassment” and was to “intimidate me because of union activist roles committee role (Joint H & S) and as a Christian”. [11] To characterize the complained of conduct as discrimination or harassment is to trivialize both of those terms. The fact that Ms. Simion, as opposed to the Grievor’s direct supervisor, contacted him to inquire as to whether he intended to return to work did not impose any disadvantage upon him. The grievance not only fails to make out a prima facie case but is frivolous. It is dismissed. GSB File Nos. 2022-12130; 2023-00368; 2023-00370 [12] Each of these grievances relates to a day (January 25, March 9 and March 14, 2023 respectively) on which the Grievor received less than one hour to prepare before the start of the court to which he was assigned. Each of these grievances alleges: “[AA] ABUSES her rights to assign and direct me as an employee and doesn’t make reasonable rules in my assignment.” (Emphasis in the original). The Grievor asserts that courtroom staff are granted one hour to prepare before the start of court. In the last two of the grievances, the Grievor alleges that as a result: “I was placed under unnecessary stress and anxiety to perform my duties as a courtroom Registrar/Clerk”. [13] In his Declaration dated March 12, 2024 the Grievor states that during a meeting to review his Performance Development Plan (“PDP”) with him on January 19, 2023, AA stated: “You’re an articulate black man, why don’t you apply for another position?” The Grievor states he found this question “offensive and repulsive”. - 5 - The Grievor states this “confirmed in my mind … information” he had previously received from others, whom he does not name, that AA had made racist comments while at Old City Hall, prior to assuming her position as his manager. He states he “understands” that AA’s employment was terminated after she made “inappropriate comments about an Indigenous staff member”. He alleges that AA works closely with Ms. Simion and that Ms. Simion consulted with AA prior to sending the email which is the subject of the grievance addressed above in GSB File 2022-12129. He also alleges “the accumulation of these events constituted harassment and discrimination on the part of the management team against me.” [14] The Employer objects to this evidence on two bases. First, it is not relevant to the grievances as filed but rather constitutes an expansion of grounds. Second, it is hearsay. [15] There is nothing in the materials before me to suggest that the Grievor raised allegations of racism on the part of AA as part of these (or the other) grievances. A Declaration dated March 24, 2024 filed by Ms. Simion states that prior to reviewing the Grievor’s Declaration she had no knowledge of his allegation that AA had made the comment in question. She notes there is no reference to it in the grievance forms or narration filed by the Grievor. Ms. Simion also states she has no recollection of the allegation being raised by the Grievor or the Union during the grievance procedure. Accordingly, I agree with the Employer that the allegations of racism constitute an expansion of grounds. As a result, the Grievor’s allegations of racism are simply irrelevant to the matters before me. [16] Given this conclusion, it is not strictly necessary to deal with the Employer’s argument that the Grievor’s statements with respect to prior racist conduct by AA constitute hearsay. In fairness to AA, however, I will do so. To the extent that the Grievor’s statements are offered for their truth, they are clearly hearsay. Given that the serious nature of the allegations which they make, I decline to give them any weight. I note that in her Declaration Ms. Simion states that she has “no knowledge of any incidents that may or may not have occurred at Old City Hall, but [AA] had no discipline on her file when she transferred to the downtown courts and I became her manager.” Ms. Simion also states AA “no longer works for the OPS, but she was not terminated for making inappropriate comments about any employee, including but not limited to an indigenous staff member.” Accordingly, I find that the Union has failed to prove that AA made racist comments while at Old City Hall or that her employment was terminated for making inappropriate comments about any employee. . [17] With respect to the question AA allegedly put to the Grievor during his PDP meeting, I note one purpose of a PDP meeting is to discuss an employee’s career - 6 - aspirations. A supervisor saying to an employee they are articulate and suggesting they consider applying for other positions appears to be entirely appropriate to that context. Reference to other characteristics of the employee in the process of doing so, such as that they are a “black man”, runs the risk of offending the employee. In this case, the Grievor states that he found the question “offensive and repulsive”. I note, however, that while the Grievor has a long history of making complaints and filing grievances, he did neither in relation to AA’s alleged question, only raising his concerns more than a year later in the context of these proceedings. In any event, for the reasons stated above, this allegation is not relevant to the grievances before me. [18] I return to the merits of these grievances as filed. The Grievor’s premise appears to be that he is entitled to one hour of pre-court preparation time or at least a “reasonable” amount of pre-court preparation time. I am unaware of any provision in the Collective Agreement to that effect and was not directed to one. I find there is no right under the Collective Agreement to one hour of pre-court preparation time, or even to a reasonable amount of pre-court preparation time. [19] Having said that, it is of course in the Employer’s interests to provide court staff with sufficient pre-court preparation time in order to ensure the proper administration of justice. I accept Ms. Simion’s evidence in her Declaration as to the practice with respect to pre-court preparation time: 15. In the morning, management typically provides an hour for court staff to set-up for the court to open. 16. However, staff are not always provided one hour to prepare for various reasons, such as due to covering for unexpected absences, having to deal with other workplace commitments or inadvertent notification later than an employee anticipated, due to the operational demands. 17. There are many days when staff have been assigned to courts with limited or almost no preparation time due to low staffing levels. [20] There is nothing before me to suggest that any of the dates subject to these grievances represent a departure from this practice. Put differently, there is no evidence that the Grievor was treated differently from other member of court staff. Any stress and anxiety experienced by the Grievor as a result of having less than one hour of pre-court time is a consequence of the normal exigencies of the work. [21] In the result these grievances are also denied. - 7 - Summary of Conclusions [22] For the reasons given, all of the Grievor’s grievances are dismissed. Dated at Toronto, Ontario this 12th day of April 2024. “Ian Anderson” _________________________ Ian Anderson, Arbitrator