HomeMy WebLinkAbout1990-2054.Mirosolin.95-12-07 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L '0 N TA RIO GRIEVANCE DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, M5G 180, DUNDAS OUEST,
BUREAU 2100, TORONTO (ONTARIO). M5G (4 326-1388 (4 16) 326-1396 GSB # 2054/90 OPSEU # 90E184 IN THE MATTER OF AN ARBITRATION Under CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE
GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Mirosolin) Grievor and -BEFORE: FOR THE GRIEVOR The Crown (Ministry of R. Verity M. Lyons H. Roberts in Right of Ontario the Attorney General)
Employer R. Anand Counsel Scott & Aylen Barristers & Solicitors Vice-Chairperson Member Member FOR THE L. McIntosh EMPLOYER Counsel Crown Law Office Civil Ministry of the Attorney General
HEARING July 8, 1991 September 25, 1991 March 5, 11, 12, 1 3 , 1992 July 7, 8, 1992 September 21, 1992 March 11, 1993 May 12, 2 9 , 1993 October 18, 1993 January 21, 1994 November 3
, 1994 December 21, 2 2 , 1994 March 14, 15, 1995
2 D E C I S I O N Sybil Mirosolin has been employed by the Ministry of the Attorney General as a provincial criminal court clerk at 80 The East Mall in Etobicoke since March of 1986.
In a grievance, dated August 3, 1990, Mrs. Mirosolin alleges discrimination in the workplace by reason of race. The grievance is founded on Article A of the collective agreement which
came into effect on June 15, 1990. ARTICLE A -NO DISCRIMINATION/EMPLOYMENT EQUITY A.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in s.9( 1) of the Ontario Human Rights Code (OHRC). A.2 It is
recognized that in accordance with section 13 of the OHRC the Employer’s employment equity program shall not be considered a contravention of this article. Although Article A of the
collective agreement is a progeny of s.5 of the Ontario Human Rights Code, the grievor also asserts her claim under the Code. Counsel agreed, however, that the board’s jurisdiction under
Article A is limited to the period from June 15, 1990 to the date of the filing of the grievance on August 3, 1990, a period of some 49 calendar days. The hearing proceeded on that basis.
The scope of the permissible evidence was a matter of debate. The employer sought to limit the introduction of evidence to the 49 day period of arbitrability. The union vigorously opposed
that suggestion and contended
3 that the panel must hear background evidence which predated the 49 day period to understand properly the events being grieved. In an interim decision dated August 19, 1991, the board
agreed to hear evidence of events of alleged differential or disparity of treatment by reason of race occurring prior to the commencement of the period of arbitrability. The extended
evidence was admitted, in part, for the purpose of showing consistency on the part of the grievor in her allegation of disparity of treatment, in the sense that her complaints did not
suddenly arise upon the introduction of Article A in the collective agreement. We can not say with fairness that such evidence is unrelated to a hearing into allegations of discrimination
by reason of race. As previously stated, however, we are not unmindful that the grievance also rests on an alleged violation of the Code. The principal actors in this difficult and emotional
case are two: Administrative Officer Carol Adams and the grievor, Sybil Mirosolin. Senior Mrs. Mirosolin is a long service employee, currently classified as O.A.G. 8, with seniority
dating back to June 1968. She is the only black employee of some six to eight criminal court clerks located at 80 The East Mall. In August 1982 she joined the Ministry of the Attorney
General as a court clerk at Old City Hall in Toronto. In March 1986 she began working at 80 The East Mall under the supervision of Mrs. Adams and her deputy Walter Manych. From our observation
of Mrs. Mirosolin during the course of the hearing, she is both personable and well spoken.
4 Mrs. Adams has worked in the provincial court system for 26 years and has served as administrative officer at 80 The East Mall from March 1981 to August 15, 1990 when she was seconded
to another position. As senior administrative officer, she supervised at all material times a staff of 35 employees including some six to eight criminal court clerks. 80 The East Mall
is said to be the fifth busiest court in Ontario in terms of cases on the docket. In the instant matter there was no evidence of negative remarks or slurs about black employees. The
grievor’s case, shortly stated, consisted of a mosaic of inferences drawn from allegations against Mrs. Adams of discrimination by reason of race. The employer’s answer is that there
was no discrimination by reason of race. The union referred to a wealth of authorities from the courts, from human rights decisions and from arbitration awards. From these authorities,
it is generally accepted that the burden of proof in a case of racial discrimination is the civil standard; it is upon the balance of probabilities. The parties agreed that proof in
such a case is a three step process summarized as follows in Basi v. Canadian National Railway Company (1988), 88 CLLC 17,006 (Canadian Human Rights Tribunal); a complainant must first
establish a prima facie case of discrimination; once that is done, the burden shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour.
Thereafter, assuming the employer has provided an explanation, the complainant has the eventual burden of showing that the explanation provided was merely a pretext and that the true
motivation behind the employer’s action was in fact discriminatory.
5 As previously indicated, this grievance is filed pursuant to Article A of the collective agreement. The board's decision must respond to the words of controlling significance in Article
A.1: "there shall be no discrimination practised by reason of race ... colour ... ethnic origin." The question which confronts the board is whether in the words of Article A.1 there
was discrimination practised by reason of race ... colour ... and ethnic origin. We deal at the outset with the employer's contention under what for brevity may be called the "pre-emptive
strike'' in order to dismiss it. Briefly stated, the employer contends that Mrs. Mirosolin filed her grievance to deflect attention from her own performance difficulties. Performance
is not an issue in this case and the sole reason for hearing evidence in that regard was that it went to the employer's pre-emptive strike theory. At the end of the day, however, we
were far from satisfied with the validity of the theory of preemptive strike. We are satisfied, however, that the grievance arises from Mrs. Mirsolin's genuine belief that she had been
discriminated against by reason of race. It is a matter of some importance that the principal issue in this case depended in the main upon oral evidence and the drawing of inferences
from the words and conduct of the principal witnesses. No doubt, the extent to which inferences may be drawn is a question of judgment on which opinion will differ. No doubt, the feelings
and emotions borne after Mrs. Adams' decisions, adverse to the grievor's requests, engendered a suspicion of discrimination in the grievor's mind.
6 This difficult case is made more difficult by the fact that it turns in large measure on the drawing of proper inferences from the evidence adduced. The conduct of Mrs. Adams must
be carefully scrutinized in the context of her authority and the duty imposed on her as an administrator and the circumstances of the specific situation in which she exercised her authority.
All this is to be weighed by the board in drawing inferences of the standard of behaviour, state of mind and conduct to be expected of a reasonable person so circumstanced. In order
to render intelligible the grievor’s complaints it is necessary to point out that, at all material times, the employer had in place a system whereby employees had to record the times
concurrent with their actual arrival and departure from the workplace (the timekeeping system) on pre-printed daily attendance sheet which contained the names of some 35 employees in
alphabetical order. The hours of work for all criminal court clerks were 8:30 a.m. to 4:30 p.m. with a 45 minute unpaid lunch break (7% hours). If assigned to courtroom #205, the first
appearance court, the hours of work were 8:00 a.m. to 4:00 p.m. When the grievor commenced work at 80 The East Mall, written guidelines regarding attendance were in place prepared by
David Avery, then Metro-Toronto Court Administrator. The guidelines read as follows (Exhibit 41):
7 The following is a list of guidelines amplifying the current attendance policy: Persons absent for periods up to 1% hours in a day can make up an equivalent amount of time by working
late or arriving early; (1) -persons absent for longer periods must use attendance credits. (2) -Make up time is to be calculated as straight time and not to be considered overtime i.e.
a person 1/2 hour late must work overtime an extra 1/2 hour either before or after their regular working hours (3) -Time must be made up within one week of the absence. A lateness of
1/2 hour cannot be made up by working an extra 15 minutes two nights of the week. (4) -For anyone making up more than 1/2 hour of time, a minimum of 1/2 hour of consecutive time must
be worked. Example: Day A.M. P.M. 10 minutes late 30 minutes late 1 hour appointment 11/4 hour appointment 1-3/4 hour sick work 10 minutes extra work 30 minutes extra work 30 minutes
extra work 30 minutes extra work 30 minutes extra work 45 minutes extra 1/4 day attendance credit The evidence falls into two categories. First, allegations of a refusal by the employer
to respond properly to repeated expressions of concern by Mrs. Mirosolin about abuse of the timekeeping system by some white employees, which allegedly created a pattern of differential
treatment and resultant adverse impact upon the grievor. The number of alleged abusers of the system was not fixed with precision. On the basis of the evidence adduced, it may be fairly
inferred that the number of consistent abusers were "several" out of the generally eight criminal court clerks at 80 The East Mall.
8 To descend to particulars, the grievor’s complaints of the abuse of the system by white criminal court clerks included failure to record, without legitimate reason, late arrivals,
early departures, extended lunches, and occasional afternoon absences after the court was down all of which resulted in the production of a daily attendance sheet which did not accurately
reflect the time actually worked. The thrust of the grievor’s testimony was that on repeated occasions, commencing in late 1986 or early 1987, she expressed her concerns about the abuse
of the system to both Mrs. Adams and Mr. Manych. On February 7, 1989, frustrated by apparent inaction to her expressed concerns, the grievor filed a formal complaint with Metro Toronto
Court Administrator David Avery as follows (Exhibit 11): Further to our recent meeting when you attended this office to meet the staff, I feel I should bring the following to your attention.
Notwithstanding the apparently strict rules regarding time-keeping, two of the courtroom clerks are still permitted to choose their own hours, coming and going when they please. Others
who arrive late or leave early are expected to serve a period of detention to compensate the Ministry for the lost time or to forfeit credts for the time not on duty. I need not mention
their names, as we all know who they are. Besides, my complaint is not with these two individuals, but with the management who has permitted this activity to go on for such an extended
period of time. In any organisation there will always be people who are in favour with the management and those who are not in favour, but by permitting this obviously unfair practice
to continue, management is contributing to a low morale amongst the other staff. In short, if some employees are to be permitted to come and go as they please, then all employees should
be extended the same privilege and dignity. Following a further period of apparent indifference to her complaints, the grievor moved on April 18, 1989 (Exhibit 6) to corroborate her
complaints by commencing a practice of removing the Ministry daily attendance sheet from the general office, taking it to the police office where she made a photocopy for her own records
and had it timed
9 stamped. Photocopies of the timesheets showed violations of the work rules in that they were not signed in a timely fashion and frequently were not signed until the following day.
The formal complaint to Mr. Avery produced a meeting on May 7, 1989 chaired by Mr. Avery. Others present at the meeting were the grievor, Mrs. Adams, Mr. Manych and a union representative.
On the basis of the evidence presented, it is common ground that Mr. Avery gave assurances that the system would be monitored and he specifically designated Mr. Manych to be in charge
of the timekeeping and attendance at 80 The East Mall. Notwithstanding Mr. Avery’s assurances, the inaction continued without ceasing. Moreover, Mr. Avery’s promise of a further meeting
with the grievor never materialized. The grievor continued to monitor the system. She recorded among others, six specific dates of abuse during the so-called arbitrability period; namely
on June 18, 28, 29, July 18, 19, 24, 1990. To deal with each and all of the alleged incidents of abuse to the system in detail would carry this decision beyond reasonable bounds. We
have considered them all, however, many more than once. In answer, Mrs. Adams testified that she did take action, however ineffectual, on the grievor’s complaints to her. In effect,
she said that her actions should be judged in the realities of her situation. Those realities were these: Deputy Administrator Manych and subsequently his successor, Mr. Karandat, were
responsible for monitoring hours of work on a daily basis; this was not by reason of her choice but (as we have seen) by order of Mr.
10 Avery, the Metro Toronto Court Administrator; in accordance with Mr. Avery’s instructions, she brought the grievor’s complaints of the system abuse to Mr. Manych’s attention; Mr.
Manych had great difficulty in imposing his will on the abusers and for that reason he would not have been her choice to monitor the system. Mr. Manych retired in March 1990 and was
replaced by Mr. Karandat in May of that year. Mrs. Adams proceeded to testify that it was her practice to investigate the more pronounced time allegations brought to her attention and
that it was also her practice to speak to the offending employee. In this connection, some corroboration can be found in the evidence of Brian Hudson (hereafter set out), a senior criminal
court clerk until his appointment as Justice of the Peace in February 1990. However, Mrs. Adams stated that any form of disciplinary action was beyond her authority and would have to
come from Mr. Avery. Mrs. Adams testified that she spoke to Mr. Avery on more than one occasion about installing time clocks but that Mr. Avery, for whatever reason, was opposed. Mrs.
Adams’ testimony as to her actions in response to complaints about abusers of the system is uncontroverted. To return to Mr. Hudson, his evidence in its essence confirmed that there
were abuses of the system by some criminal court clerks, including himself. He stated that on several occasions Mrs. Adams called him into her office to demand an explanation for his
11 occasional absence in the afternoon during working hours. He explained by way of mitigation that he was required to work extra hours in his role as co-ordinator of court clerks and
as liaison with the judges. There for a moment we leave the issue of the timekeeping system to be considered in its relation to other evidence at a later stage. We now turn to the second
category of evidence. As already indicated, it involves an inquiry into six circumstances charged with imputations of disparity of treatment against the grievor by reason of race. The
six incidents will be considered seriatim with such explanation as may be necessary to make their meaning clear. ONE. On December 18, 1986, the grievor indicated her intention to attend
the Attorney-General’s Christmas party. She asserted that Mrs. Adams insisted that she (the grievor) sign the daily attendance sheet and enter into the remarks column words to the effect
that she was attending the A.G.’s Christmas party. The gravamen of the grievor’s complaint is that Mrs. Adams did not exact the same stricture from other employees. There was no evidence
before the board that any other criminal court clerk attended that party, which would have required signing of the daily attendance sheet. On her own evidence, the grievor saw no other
employee colleague at the party. Mrs. Adams has no recollection of this incident; the thrust of the whole of her evidence, however, was that she never took into consideration race or
colour in her dealings with the grievor. We find no sufficient evidence to support the grievor’s allegation of discrimination.
12 TWO. It is common ground that in January 1987 the grievor requested in a timely fashion three weeks vacation including (a) one day for July 31, 1987, (b) four days from September
8 to September 11, 1987, (C) the balance of the month of September 1987 and (d) five days from December 24 to December 31, 1987. Scheduling of holidays is based on seniority subject
to the exigencies of maternity leave. In February 1987 Mrs. Adams verbally informed the grievor that her requests for (a) and (b) were denied on the basis that Mr. Chapman, admittedly
the most senior clerk, would be granted his usual request for a July vacation and that (b) presented staffing problems yet to be resolved. In May, Mrs. Adams confirmed in writing her
earlier denial of the grievor’s requests. On July 31 Mrs. Mirosolin renewed her request for (a) on the basis of the addition of a further clerk, a contract employee, Mrs. Carruthers.
The grievor’s request was again denied. As to the request for (a), the grievor argued that there was no reason for denial inasmuch as Mrs. Carruthers was then on staff. Mrs. Adams has
no specific recollection of the second request. Mrs. Mirosolin said that in refusing her second request Mrs. Adams stated that Mrs. Carruthers, as an expectant mother, was subject to
all the exigencies of a maternity leave and accordingly there was no assurance that she would be on hand for the entire day of July 31. As to request (b), the grievor reinforced her
contention of discrimination by testimony that Mrs. Adams granted time off for the period September 8 to 11, 1987 to senior criminal court clerk Brian Hudson who has less seniority than
Mrs. Mirosolin. Counsel for the
13 employer submitted that Mrs. Mirosolin’s recollection on this point is inaccurate in that the records indicate that Hudson, in fact, did work on September 11. Mrs. Adams has no recollection
of her own why she denied the grievor’s request as to the period September 8 to 11. The board finds that Mrs. Adams lack of recollection of the circumstances surrounding these two incidents
is not entirely surprising. In our view, we should not expect a greater power of recollection on the part of Mrs. Adams than any other witness who is asked to testify about events that
occurred some 5 1/2 years previously. Moreover, these events although important to the grievor, fell into a narrow compass for Mrs. Adams in the sense that the distribution of vacation
periods among employees was a dreary annual routine. It is worthy of notice that Mrs. Adams did grant Mrs. Mirosolin her full vacation entitlement including the period September 14 to
October 2, 1987. Differently stated, Mrs. Mirosolin was granted vacation for the entire period for which she requested, except for July 31 and September 8 to 11 referred to above as
periods (a) and (b) respectively. It should be further noted that the vacation denied for (a) and (b) were added on to the period commencing September 14 and ending October 2, 1987.
THREE. On July 17, 1987, minor surgery was performed on Mrs. Mirosolin’s feet. She returned to work July 27, 1987 and two days later on July 29 she advised Mrs. Adams that she had an
eye appointment with Dr. Mrinmay Ghosh. According to the grievor, she had been instructed by Dr. Ghosh to attend the Toronto General Hospital on
15 spoke with Ron Campbell, Metro Toronto Deputy Court Administrator. Mr. Campbell granted Mrs. Mirosolin’s request to go directly to her appointment as opposed to reporting first to
Old City Hall. Counsel for Mrs. Mirosolin, in effect, asked the question: why was Mrs. Mirosolin able to persuade Mr. Campbell and not Mrs. Adams to allow her to report directly for
her eye test? Counsel answered his own question to this effect: the only reasonable explanation is one of racial discrimination on the part of Mrs. Adams. As already stated above, Mrs.
Adams testified that she made every reasonable effort to co-operate with the grievor’s request and in the end acted in accordance with the management directive. In passing, a comment
may be appropriately made. It is one thing for a supervisor, such as Mr. Campbell, to grant a special arrangement for time off. Mrs. Adams was in an altogether different position as
regards the exercise of discretion in such matters. Hers was a discretion limited by the dictates of directives and the imperative need to keep the courts and administration functioning
effectively at all times. Following the eye appointment on August 4, the grievor went directly home complaining of a combination of foot pain and mental anguish allegedly arising out
of Mrs. Adams’ alleged discriminatory attitude and actions.
14 August 4, 1987 at 9:00 a.m. for a series of eye tests. This request engendered some disagreement between the administrator and the grievor and a word of explanation is necessary.
Mrs. Adams acquiesced to Mrs. Mirosolin's request on condition that there be a "swap" of employees, that is to say Mrs. Mirosolin would report to Old City Hall and an employee from that
location would work at 80 The East Mall. In addition, Mrs. Mirosolin was to report to Old City Hall at the usual 8:30 a.m. staring time. To this the grievor testified that it was not
practical for her to report at 8:30 when she had an eye examination scheduled for 9:00 a.m. and the more so because of her recent foot surgery. Not unworthy of notice is the fact that
Mrs. Adams did explore the possibility of obtaining a replacement from court services in order to accommodate fully Mrs. Mirosolin's request, but without success (see Exhibit 9, p.5).
Three further facts command attention: Mrs. Mirosolin's request for this leave of absence was brought to Mrs. Adams' attention on relatively short notice during the summer vacation period
which, of course, made it more difficult for Mrs. Adams to get a replacement; Mrs. Adams in dealing with Mrs. Mirosolin's request acted in accordance with the management directive of
Irene Brewer, Assistant Supervisor, Court Services (see Exhibit 9, p.5); Mrs. Adams difficulty in finding a replacement is further evidenced by the fact that on Tuesday, August 4, two
criminal court clerks were off work (one on vacation and one on maternity leave) with the result that she had to deny two other staff requests for vacation on August 4. The matter did
not end there. Mrs. Mirosolin went over Mrs. Adams' authority and
16 FOUR. Mrs. Mirosolin alleged that Mrs. Adams deliberately tried to circumvent the grievor’s legitimate request for an extended lunch hour or alternatively for a half day’s leave of
absence in order to attend to urgent matters bearing on her financial situation. The grievor’s testimony, briefly summarized was as follows: In early February 1988, she advised Mrs.
Adams that she required an extended lunch hour or the afternoon of February 16 off work in order to go to the bank for closing arrangements of a condominium purchase scheduled to close
the following day. Accordingly to the grievor, Mrs. Adams denied the request and suggested that she follow the not unusual practice of making arrangements by way of an exchange with
a co-worker. According to the grievor, Mrs. Adams appeared indifferent to her request. Thereupon the grievor went over Mrs. Adams authority and consulted among others, Matt Veskimets,
Director of Provincial Court Services. As a result, the grievor was granted the requested time off. On this point, the grievor’s submission runs in this way: Mrs. Adams position as administrator
conferred on her the discretion to grant the grievor’s request for time off on the basis of a personal emergency; Mrs. Adams display of indifference compared to Mr. Veskimets’ supportive
understanding makes for a case of disparity of treatment by reason of race on the part of Mrs. Adams. In reply, counsel for the employer made the argument that Mrs. Mirosolin, for her
17 own reasons, did not put her request on the basis of an unforseen personal emergency, in that she took the position that it was none of Mrs. Adams business to know the nature of the
request. In other words, counsel contends that this is another case of the grievor requesting special treatment without providing the special reason. It is perhaps not amiss to make
a comment at this stage. In our view, the grievor’s recollection of her discussions with Mrs. Adams is open to some reservation. In examination-in-chief, she left the impression that
she and Mrs. Adams had a detailed discussion about her financial situation to such a degree that Mrs. Adams suggested bridge financing. In cross-examination, however, Mrs. Mirosolin
conceded that she had no discussion with Mrs. Adams concerning bridge financing. The board is satisfied that Mrs. Mirosolin, as was her right, stated the reason for the request for time
off in the barest of terms. One might not unreasonably expect, however, that a request for a personal emergency would be accompanied by some explanation of the emergency. FIVE. Mrs.
Mirosolin further alleges that she was the only criminal court clerk required to perform front office work as opposed to regular court work. She softened this allegation, however, to
the degree that she had seen work from the general office on the desks of other criminal court clerks. In opposition, Mrs. Adams asserts that all criminal court clerks were expected
to perform general office duties and, in fact, did perform that work to slightly varying degrees because of the irregularity attendant in court work. On this incident we find no sufficient
evidence to support the grievor’s allegation of discrimination.
18 SIX. From the witness, Brian Hudson, who loosely carried the title Senior Criminal Court Clerk without the benefit of actual appointment to the position, came strange evidence. He
said, in effect, that at the request of someone whom he did not identify, he was asked to keep a file on Mrs. Mirosolin with regard to performance errors. One of the unexpected curiosities
of this case was that neither counsel pursued the question of identity. In the result, the identity of the requestor is left in the air. Counsel for the union suggested that Mrs. Adams
was the instigator of “the Hudson file” on Mrs. Mirosolin. The board is firmly of the view that there was no evidence to support this contention. Mrs. Adams vigorously denied the allegation.
The board is of the opinion that the explanation for the file is to be found in Hudson’s evidence. It was to this effect: he spoke to Sylvia Orgias of the Human Resources branch in the
summer of 1989 with respect to his complaints against the grievor. On the evidence adduced, the board gained the impression that Mr. Hudson’s decision to maintain a file on Mrs. Mirosolin
arose from his conversation with Sylvia Orgias. Furthermore, Mr. Hudson made no suggestion that he acted at the request of Mrs. Adams in keeping the file in question. We find no evidence
to suggest that, if a file were kept on Mrs. Mirosolin by Mr. Hudson, it was at the direction of Mrs. Adams. As already stated, we find no sufficient evidence to support this allegation
of discrimination. The position of the employer must be looked at from Mrs. Adams’ standpoint. Of Mrs. Adams herself and her personality we think it is proper to say a few words. We
have
19 gained from her demeanour, from the substance of her evidence, from the manner in which she gave it, from documentary evidence hereinafter stated and from her contemporary conduct
a firm impression of what manner of person she is. Our impression is as follows: she is handicapped by an apparent cold and unsympathetic exterior; it gives her the sense of remoteness
and hardness; she is a fallible human being and an individualist; a popular figure she is not and does not seek to be; she bears the imprint of an administrator of an earlier generation;
she has not that touch of imagination so helpful in soothing over employee and supervisor relations; and she discharges her duties with firmness and with dedication. Her ruling purpose,
the end to which all matters were secondary, was to have at the ready a sufficient number of criminal court clerks to meet the fluctuating necessities inherent in the nature of court
business in one of the busiest courts in Ontario. Mrs. Adams’ commitment to that duty had priority in the making of all her decisions. This brings the board to a document that perhaps
caused Mrs. Adams some embarrassment but io which the board finds significant relevancy in the pursuit of its inquiry. We refer to a letter over the signature of 17 of a staff of 35
supervised by Mrs. Adams which was received April 28, 1989 and addressed to Mr. Veskimets, Director of Provincial Court Services. That letter reads in its entirety as follows (Exhibit
10 -group complaint):
20 We, the undersigned, employees of the Provincial Court situated at 80 The East Mall, Etobicoke, with to bring to your attention a serious problem. As adults and conscientious workers,
we feel we are frequently treated like children and otherwise harassed by our Administrative Officer, Mrs. C. A. Adams. This problem has been mushrooming over the past several years
and has now reached intolerable proportions. From early morning to late evening the staff experiences overly-close supervision; frequent sarcastic remarks are directed to some individuals
and, in many cases, directed behind the back of the employee concerned to a colleague of that person. We feel that this situation is sufficiently serious that we request you to meet
with us with a view to improving staff morale. In the past we have tried to bring the matter to the attention of Mrs. Adams’ immediate supervisors -although not in writing -but we get
the impression that they do not take our complaints seriously. We anticipate an early meeting with you in order to discuss this matter in further detail. A better ambience environment
would be more productive and pleasant for both Mrs. Adams and her staff. It will be observed that the tenor of the group complaint is not altogether unlike that of Mrs. Mirosolin’s personal
complaint against Mrs. Adams. Of the 17 employees who signed the group complaint (Exhibit 10), we are advised that the vast majority are white and at least one, Mrs. Mirosolin, is black.
The group complaint, of course, was not entered as an exhibit before us to prove the truth of the allegations contained therein. For present purposes, however, its importance lies in
the fact that on the basis of this document, Mrs. Adams presented the same attitude to each complaining employee and equally to black and white alike. Assuming for the sake of argument
the possibility of the allegations in Exhibit 10, it may be fairly inferred that the disparity of treatment, attributed by Mrs. Mirosolin to the reason of race was in fact motivated
by Mrs. Adams’ personality and demeanour, as
21 illustrated by the filing of the group complaint in April of 1989. It is useful to recall that Mrs. Mirosolin testified, in referring to Mrs. Adams, that "her mannerisms really bothered
me." As already indicated, the grievor's case is largely a mosaic of inferences. However, it is the facts that the law seizes upon to form and justify its inferences. The relevant facts
in dispute as we find them, compendiously stated, are these: (1) We find as a fact that there was abuse of the timekeeping system on the part of several criminal court clerks as alleged
by the grievor throughout the period under review, that is the pre-arbitrability period and the agreed upon period of arbitrability. (2) We find as a fact that on repeated occasions
Mrs. Mirosolin brought the timekeeping abuse to the attention of Mr. Manych, Mr. Karandat, Mrs. Adams and Mr. Avery. (3) We accept Mrs. Adams' testimony as to her actions regarding complaints
of abuse of the timekeeping system and that it was through no fault of hers that the abuse was not corrected. The evidence established that Metro Toronto Court Administrator David Avery
delegated the duty of monitoring timekeeping to Mr. Manych and subsequently to his successor Mr. Karandat.
i 22 Having delegated that responsibility, we incline to the view, on the evidence before us, that Mr. Avery and not Mrs. Adams was responsible for the failure to correct the abuse of
the timekeeping system. (4) We find as a fact that the abuse of the timekeeping system created an adverse impact upon the non-abusers among the criminal court clerks in that nonabusers
were occasionally called upon to carry a slightly heavier work load. However, we are unable to find that this adverse impact had its root or genesis in racial discrimination in as much
as it affected both black and white non-abusers alike. We turn now to the six incidents charged with imputations of disparity of treatment against the grievor by reason of race. (5)
We find that no ground exists in incidents one, five and six for drawing inferences of discrimination against Mrs. Mirosolin by reason of race. (6) With regard to incidents two, three
and four referred to above, a more detailed examination is required. On first impression Mrs. Adams’ evidence seemed to have a contradictory quality. On the one hand, she refused to
grant vacation requests (see incident Two) and she refused
i 23 to grant short leaves of absence (see incidents Three and Four) on the ground of need to maintain a sufficient complement of criminal court clerks. On the other hand, it is said
that she took no step to deal with the time system abuse which if corrected would have increased the efficiency of the staff. In our view, this apparent dichotomy is answered by Mrs.
Adams’ actions. As we have seen, despite Mrs. Adams’ suggestion to Mr. Avery of instituting the time clock system, she could not prevail upon senior management to tighten up the system.
She was under the handicap of having no authority to discipline abusers in any meaningful fashion. We are satisfied that Mrs. Adams acted upon an honest appraisal of the factual situation
regarding staff as she believed them to be. On our own observations, we believe Mrs. Adams was a hard task master to all clerks black and white alike. Verification can be found in the
group complaint (Exhibit 10). Her ineffectual efforts and knowledge of the abuse of the system should not be taken as importing acquiescence to the abuse of the system. Consideration
of race is not to be inferred from acts which reasonably interpreted are as compatible with no consideration of race as with consideration of race. Having weighed the cumulative weight
of the evidence both distrributively and collectively, we place the decision we have reached upon the grounds that Mrs. Adams’ impugned acts were made without consideration of race or
colour. On balance, we accept Mrs. Mirosolin’s evidence to the extent that Mrs. Adams
24 could have acted more sympathetically to her request for time off. It seems to us that the question is not whether Mrs. Adams made the right decision but rather it is whether she
was properly motivated in making the decision. It is one thing to say that Mrs. Adams made an inconsiderate decision, it is quite another thing to say that it was a decision motivated
by considerations of race. It is no small point that Mrs. Adams was made aware of certain complaints about the grievor’s overall performance. She put aside those complaints, however,
and made a judgment on her own observations with the result that Mrs. Mirosolin was given a satisfactory performance review rating on April 21, 1989 (Exhibit 19). This is hardly consistent
with the action of a supervisor allegedly acting on considerations of race or colour. The cumulative weight of the evidence leads to the conclusion that any perceived disparity of treatment
against Mrs. Mirosolin was motivated not by reason of race but what Mrs. Adams perceived to be her duty. In our respectful opinion, this is not a case of disparity of treatment by reason
of race. This decision in no way reflects adversely upon Mrs. Mirosolin who, as a person and as an employee, acted upon honest belief in her assertions. From our observations, Mrs. Mirosolin
is a woman of spirit and action animated by the desire to resolve what she perceived to be a matter of injustice. Mrs. Adams probably could have acted with greater
25 consideration and in a more sympathetic manner in dealing with Mrs. Mirosolin's complaints and requests. In this sense, Mrs. Adams probably made wrong decisions. But in reviewing
the evidence as a whole we are lead to the conclusion that although Mrs. Adams may have made wrong decisions she was never on the side of wrong in that her decisions were not made on
considerations of race. In the result, this grievance is dismissed. DATED at Brantford, Ontario, this 7th day of December, 1995. /T e R. L. VERITY, Q.C. -VICE-Chair M. LYONS MEMBER I
H. ROBERTS MEMBER