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Home My WebLink About2013-1169.Ranger.15-05-07 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-1169, 2013-1170 UNION#2013-0424-0002, 2013-0424-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Ranger) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Daniel Harris Vice-Chair FOR THE UNION Michael Hancock Koskie Minsky LLP Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel HEARING December 2, 2014 - 2 - Decision [1] The union has filed two grievances on behalf of Robert Ranger. Mr. Ranger is a corrections officer being accommodated in a position in the Probation and Parole Office in Ottawa. The union has grieved that a five-day suspension received by Mr. Ranger was a breach of the collective agreement because the employer imposed excessive discipline as opposed to progressive discipline. The second grievance alleges that the employer has failed to provide a workplace that is free of discrimination and harassment. [2] The union has provided particulars to the employer, which resulted in this preliminary motion brought by the employer to strike out aspects of the union's claims and to limit evidence that the union might call. [3] The five-day suspension resulted from a verbal and physical exchange between the grievor and a coworker, Louise Beaulieu on March 4, 2013. In imposing the suspension the employer took into account a letter of counsel to the grievor dated December 20, 2010 as a result of a verbal exchange between the grievor and a different coworker, Catherine McLaren. [4] The general nature of the employer's submissions is a response to the following paragraph at page 2 of the union's particulars dated January 21, 2014: The discipline issued to Mr. Ranger is the latest example of the Employer's on-going campaign of harassment and discrimination which commenced when the Employer learned of Mr. Ranger’s sexual orientation. When viewed - 3 - in light of the events which were well documented in the hearing before Ms. Leighton at the Grievance Settlement Board, the Employer's failure to address the concerns raised by Mr. Ranger regarding Ms. Beaulieu prior to March 4, 2013 are yet another example of the same type of managerial encouragement and/or indifference which permitted harassment against Mr. Ranger to occur while he was working as a correctional officer. [5] It is the union's intention to call evidence relating to prior incidents, which it says are part of a continuing course of harassment/discrimination against Mr. Ranger. The employer objects to such evidence being called because the incidents relied upon are subsumed in other, prior litigation before the Grievance Settlement Board either by way of retained jurisdiction of other Vice Chairs pursuant to Decisions of the Board or Minutes of Settlement entered into in relation thereto. [6] The employer specifically objects to the following issues being put before me in these proceedings: – Failure to pay relocation pay: this allegation relates to a claim for relocation expenses from when the jail at L’Orignal closed and the grievor relocated to the Ottawa Carleton Detention Center. That question was determined by Vice Chair Leighton in a decision dated May 18, 2000. She remained seized to deal with any issues of remedy. – Failure to address issues with Catherine McLaren: both parties intend to call evidence relating to the grievor's interactions with Ms. McLaren in December 2010. The union is seeking damages against the employer. The employer takes the position that the union may call evidence with respect to that incident in order to attempt to establish a course of harassing or discriminatory conduct. However, it says that the union may not reach back beyond 30 days prior to the filing of the grievance for damages. – Failure to provide proper benefits (safety boots): the grievor has been denied a claim for a second pair of safety boots in a calendar year. That matter has been consolidated with other matters before Vice Chair Leighton. - 4 - [7] The union submitted that it was necessary to hear evidence of these previous incidents in order to properly weigh the grievor's interactions with Ms. Beaulieu. That is, the grievor's history of being harassed and discriminated against is the context within which his actions in the Ottawa Probation and Parole Office must be assessed. It was said that the failure to pay relocation expenses and the failure to reimburse for the second pair of safety boots in a calendar year were in and of themselves examples of harassment. The union is not seeking to establish liability, but wishes to call the evidence in order to establish that the current allegations of harassment and discrimination are rooted in previous aspects of the employer's behavior. [8] Specifically with respect to the allegations involving Catherine McLaren, the union submitted that the employer’s failure to remedy that situation sounds in damages. It said that the employer’s submission that limiting liability for human rights issues to 30 days before the filing of a grievance is to give the offending party a "free pass", and no remedy at all for such events. The union submitted that there should be no limit to evidence or relief in a case such as this because the claims are made under the Ontario Human Rights Code. It submitted that the Code permits the filing of a claim within one year of the last incident in a series of incidents. The union said that this timeline applies to the Grievance Settlement Board and grievances such as this one. [9] I have carefully considered the submissions of the parties, the documents filed, including Minutes of Settlement and Decisions of the Board, as well as the - 5 - jurisprudence relied upon. In my view, it would be inappropriate to hear evidence on matters that have already been determined by the Board, or are the subject of minutes of settlement entered into between the parties. There must be finality to such processes. I can well understand that the grievor's experiences have had an impact on how he approaches situations in the workplace. The Board has made a number of factual findings regarding the grievor's experiences. The employer is content that the union may rely upon such previous findings of fact. In my view, it is not appropriate to, in effect, re-litigate those matters with the rehearing of evidence relating to them. Accordingly, I will not entertain evidence relating to such previously determined facts. [10] As for the scope and impact of the allegations involving Catherine McLaren, it is settled law that the timeliness provisions for the filing of complaints to the Ontario Human Rights Tribunal do not apply to grievances determined here at the Grievance Settlement Board (OPSEU (Nitsotolis) and MGS, GSB 1337/12 (Nairn)). [11] The Board has held as a general rule that evidence of harassment and/or discrimination may reach back approximately 3 years. This is in recognition of the fact that there may be a course of conduct that is not immediately recognized as harassment and/or discrimination. It is only in the fullness of time that otherwise apparently innocent actions can be seen as part of such a course of conduct. In the circumstances of this case, the allegations involving Catherine McLaren fall within the generally accepted three-year rule. - 6 - [12] It is also my view that it is premature to say that the remedy for these grievances would extend back only 30 days from the filing of the grievance. This interim award relates exclusively to the extent of evidence which can be led with respect to June 2013 grievances. The question of remedy is best left to the end of the case. The parties will later have the opportunity to make representations as to what remedy, if any, flows from the evidence led during the course of the hearing on the merits for grievance. Dated at Toronto, Ontario this 7th day of May 2015. Daniel Harris, Vice-Chair