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HomeMy WebLinkAbout2012-0209.Blacquiere et al.15-09-11 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#2012-0209, 2012-0210, 2012-0211, 2012-0212, 2012-0213, 2012-0214, 2012-0215, 2012-0216, 2012-0217, 2012-0218, 2012-0219, 2012-0220, 2012-0221, 2012-0232, 2012-0498, 2012-0574, 2012-0575, 2012-0577, 2012-0633 UNION#2012-0530-0009, 2012-0530-0010, 2012-0530-0011, 2012-0530-0012, 2012-0530-0013, 2012-0530-0014, 2012-0530-0015, 2012-0530-0016, 2012-0530-0017, 2012-0530-0018, 2012-0530-0019, 2012-0530-0020, 2012-0530-0021, 2012-0530-0022, 2012-0517-0021, 2012-0530-0033, 2012-0530-0034, 2012-0530-0036, 2012-0530-0039 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Blacquiere et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Christopher Albertyn Vice-Chair FOR THE UNION Eric del Junco Counsel FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Counsel Victoria Fichtenbaum Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING June 5, 2015 - 1 - Decision [1] The issue is whether the Employer ought to have responded to certain statements published in the press on March 5 and 6, 2012. [2] The matter is heard under Article 22.16 of the parties’ collective agreement, their expedited procedure. The parties agreed to bifurcate the determination of liability from the determination of remedy. [3] The issue to be decided was described in a decision on June 23, 2014: On the assumption that an enhanced employer response would have ameliorated some harm to the grievors occasioned by the press statements published on March 5 & 6, 2012, given all the relevant circumstances, did the employer’s failure to respond, publicly and/or internally, constitute a breach of the collective agreement, and/or the Ontario Human Rights Code, and/or a previous order of the Board? [4] The Union’s policy and individual grievances complain that the Ministry failed to make a public statement, and a statement within the workplace (the Toronto Jail), in defence of non-racialized staff then employed there. The Union claims that, as a result, harm suffered by non-racialized staff was not mitigated. [5] On March 5 and 6, 2012 a Correctional Officer, Leroy Cox (also then employed at the Toronto Jail), and his solicitor made public statements to the press that were reported in the National Post and by the CBC. Among the statements by Mr. Cox’s counsel quoted on the CBC website and in the National Post article was the following: - 2 - “There is a public interest in rooting white supremacists out of a jail," Falconer said. "Keep in mind that in addition to being in a position to harass their fellow racialized officers, these white supremacist officers are in charge of inmates, often inmates that are black." [6] The CBC report stated also: OPSEU declined to comment to CBC News. Ontario's Ministry of Community Safety and Correctional Services spokesman Brent Ross told CBC News that it would be “inappropriate to comment on proceedings before the Ontario Human Rights Tribunal.” “However, I can assure you that the Ministry continuously strives to maintain and improve a positive working environment for all its employees.” [7] The National Post article had pictures of Ku Klux Klansmen in their white hoods and outfits accompanying the article. The implication – that the Toronto Jail housed correctional officers who were KKK supporters – was clear. Mr. Cox’s and his solicitor’s statements were made to explain an application Mr. Cox had commenced against the Ministry and the Union before the Human Rights Tribunal of Ontario (HRTO) claiming harassment, discrimination and racism. The National Post report explained that Mr. Cox was claiming that “his co-workers were not just racist, but outright white supremacists that have subjected him to years of harassment because of his race.” [8] The reasonable inferences to be drawn from the quoted statements by Mr. Cox and his counsel were that some of the non-racialized correctional officers working at the Toronto Jail were directly or indirectly responsible for the racist hate letters sent anonymously from 2005 onwards to mostly racialized correctional officers employed at the Toronto Jail; that some of the non-racialized correctional officers at the Toronto Jail - 3 - were sympathetic to the racist views expressed in these letters; and that some or many of the non-racialized officers at the Toronto Jail were white supremacists. [9] These statements disparaged the non-racialized correctional officers of the Toronto Jail because they would be associated in the reading and listening public’s mind with being “white supremacists”. The allegations are extremely offensive to the individual correctional officers who filed individual grievances and who are covered by the union’s policy grievance. Some of them suffered emotional stress as a result. Also, as a likely consequence of the press articles, certain of them were subjected to contempt and abuse inside and outside of the institution. [10] Further, the Union claims that: the statements made to the press fanned racial tension in the workplace, which had abated considerably since 2010, and re-poisoned the work environment for non-racialized officers at the Toronto Jail; the statements increased risk of verbal and physical assaults by racialized inmates enraged by the media reports; and they exposed non-racialized officers to hatred and contempt from some racialized officers who accepted the statements at face value without having any direct knowledge of the history or context of the anonymous letters. The Union submits that such hostility is dangerous in the workplace because all officers must be able to rely implicitly on each other for their personal safety at all times. The Union argues that, in this context, it was incumbent on the Employer to have issued a statement to quell the suspicions created by the press reports. [11] The Union takes the position that the Employer should have taken steps to - 4 - respond to the published statements, by immediately issuing a statement to the media firmly rejecting the published statements as inaccurate, reckless and irresponsible and avowing the good character of its correctional officers at the Toronto Jail; and immediately issuing an internal statement to the same effect to its corrections staff at the Toronto Jail and across the province. [12] The Union itself chose not to issue any press statement in response to the press reports. However, in the Toronto Jail, the Union’s Local President communicated with the Superintendent. He suggested it would be appropriate for management and the Local Union to issue a joint statement to the staff of the Toronto Jail signed by him and the Superintendent expressing concern about these statements and support for the staff so as to minimize the demoralizing impact of these statements. This is not agreed to by the Employer. The then Superintendent says that a decision was made to be open and sensitive to those staff who felt impacted by the press articles and “to acknowledge their concerns and support them towards understanding the process of the Human Rights Tribunal and the access to media outlets”, rather than to issue a joint statement. The Union disputes this. Management claims that it was concerned that any Employer statement in response to the media reports might cause reprisals against Mr. Cox, which was to be avoided. The Superintendent felt “that managing the concerns and emotions of staff on a case by case basis was the best approach toward maintaining the progress of establishing a healthy workplace”. The Employer says it also took account of the following: “it was felt that any internal reaction to external media comments would place the institution and the Ministry in a position of inappropriately weighing in on matters before the courts and/or the tribunal. Any response by the Ministry to the - 5 - statements may have been alleged to be reprisal against Mr. Cox for filing a complaint at the HRTO. It was deemed that the appropriate response was no hard direct response, but rather to continue to monitor the workplace and ensure that the concerns and needs of all staff were addressed”. [13] There is accordingly a dispute between the parties as to what occurred as a result of the Local President’s request for a joint written response, which does not need to be resolved, suffice it to say that no joint statement was issued. [14] The parties agreed to bifurcate the hearing. They first want a determination as to whether the Ministry ought to have done more than it did at the time, and whether there has been a breach. If the Union succeeds and that determination is made, then the remedy for the Ministry’s failure to act is to be left for later determination. This decision addresses the first issue: did the Ministry’s failure to do more constitute a violation of the collective agreement or of the Ontario Human Rights Code or of the Occupational Health and Safety Act (OHSA) or of previous Board decisions? [15] The Ministry’s long-established practice, consistent across the OPS, when faced with legal actions against it before the courts and tribunals, is not to comment upon the details of the matter, nor on any claim made a party to the matter. This approach ensures the courts and tribunals are respected as the appropriate venue to bring forward the Ministry’s facts and arguments concerning the particular matter. It also ensures that there is no perception that the Ministry is seeking to prejudge the outcome of the proceedings. - 6 - [16] The issue in this case is whether, given the unusual circumstances of the Toronto Jail in March 2012, the Ministry had a particular obligation to vary from its long- established practice and to issue some statement supportive of its non-racialized officers at the Toronto Jail. [17] The particular, unusual circumstances the Union relies on are those extensively described in Ontario Public Service Employees Union (Tardiel et al) v Ontario (Community Safety and Correctional Services), 2011 CanLII 36560 (ON GSB) and in OPSEU and The Crown in Right of Ontario, 2010 CanLII 81917 (ON GSB) and in the decisions cited therein. [18] A poisoned work environment prevailed in the Toronto Jail in the period from 2005 to 2008. Many individual, group and policy grievances were filed to try to remedy the situation. Those grievances were dealt with together in an expedited procedure to try to address the root causes of the divisions and difficulties at the Toronto Jail. A substantial process of restoration – restoration of a healthy and safe workplace, free from racism, harassment and discrimination – was undertaken at considerable cost to both the Ministry and the Union during the period 2008 to 2012. In the course of that process the Ministry and the Union agreed upon an extensive list of systemic remedies to restore the workplace. Those remedies were implemented carefully through joint Union-Management committees. The process of implementation was closely supervised by the GSB. [19] Among the systemic remedies agreed by the parties were the following - 7 - commitments referred to by the Union: • All parties should be respectful to one another – acknowledge and appreciate human rights issues, and hold one another accountable, especially in the area of human rights. • All parties should build shared workplace values recognizing the diverse workforce at Toronto Jail. • All parties should foster and contribute to a workplace that is welcoming to a diverse workforce at the Toronto Jail. [20] The Union submits that the public press statements on March 5 and 6, 2012 by Mr. Cox and his solicitor breached the above obligations, whatever the merits of Mr. Cox’s claim before the HRTO. The Union refers to the press statements as a collective smear, in contempt of fellow employees, directly contrary to the intention of the parties to restore a safe and discrimination free workplace and, accordingly, grossly irresponsible and destructive of workplace relationships. The Union argues that the Employer’s failure to react publicly meant that the public perception was that the statements made were true. In this context, the Union submits the Ministry had an obligation to defend the process they had seriously undertaken, and so counter the accusations made generally against non-racialized officers at the Toronto Jail. The Union suggests that the Employer’s failure to react fell below the standard that is reasonably expected of it, particularly in the context of the commitments it had made to the Union and the employees in the process of restoring healthy and respectful relationships in the workplace. [21] The Union argues that the Employer’s failure to respond in defence of its officers and in defence of the process of restoration that the Union and the Employer - 8 - had seriously undertaken was a further example of the Employer’s failure to take appropriate action to prevent a renewal of the racial tension and hostility of the earlier period described in the earlier decisions between the parties, referred to above. [22] The Union relies on Toronto Community Housing Corporation (Security Group) v Ontario Public Service Employees Union, 2015 CanLII 13548 (ON LA) (Nairn), in which the arbitrator found (at para. 320) that the employer in that case ought to have issued a memo to staff to help quash a rumour widely circulated in the workplace. The Union refers also to Farris v. Staubach Ontario Inc., 2011 HRTO 979 (CanLII) and to Moffatt v. Kinark Child and Family Services [1998] O.H.R.B.I.D. No. 1. In Heintz v. Christian Horizons, 2008 HRTO 22 (CanLII), at para. 238, the Tribunal found that the employer’s failure in that case to have taken steps to put an end to the effects of heinous attitudes that were poisoning the workplace was a violation of the Human Rights Code. [23] The Union refers to cases where the HRTO has found that, in appropriate circumstances, an employer has an obligation to respond to malicious rumour to protect the reputation of an employee, by issuing corrective statements to the employees generally to quash the rumour. In Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 (CanLII), at para. 27, the Tribunal reiterated that, “Employers and managers may violate s. 5(1) [requiring no unlawful discrimination in employment] through a failure to appropriately respond to or prevent harassment, thereby contributing to a ‘poisoned work environment’”. In Yousufi v. Toronto Police Services Board, 2009 HRTO 351 (CanLII), at para. 55, the Tribunal explained that, where a - 9 - poisoned work environment had been created in a workplace by rumour, the employer had an obligation to “expressly and distinctly” advise employees that it had no knowledge of the offensive behaviour suggested by the rumour. Such an action would help to alleviate the harmful impact of the rumour. [24] The Union’s submission is that, bearing in mind the above tests for human rights violations and for maintaining a healthy and safe workplace under Occupational Health & Safety Act (OHSA), when faced with the press statements that were a collective smear on Mr. Cox’s fellow workers, the Employer should have taken all steps reasonably necessary to respond publicly in defence of those employees, and internally to reassure employees that there was no evidence of such rumours and that the rumours would not be tolerated. [25] The Employer points out that the Union itself chose not to comment on the press statements. The Employer suggests this makes it unreasonable for the Union to complain that the Employer acted in the same way. The Employer points out that the Ministry did state to the press that it “continuously strives to maintain and improve a positive working environment for all its employees”. (In the decision of June 23, 2014, the absence of any Union response to the press statements is a matter to be addressed as part of the remedy portion of the case, assuming liability is established against the Employer). [26] The Ministry’s approach to press statements is explained by Stuart McGetrick, a Ministry communications officer, as follows: - 10 - When a media enquiry is received that relates to a matter that is before the courts or a tribunal, it is the Ministry’s long established practice not to comment on the details of that matter, including claims by any parties to the matter. This practice is consistent across the OPS. Response to such enquiries is limited to speaking in general terms about the court or tribunal process, as well as providing details of relevant ministry’s policies and practices. Any comments made, or public position taken, would have to be based on verifiable facts and given the nature of the comments in this particular case, such verification would not be possible. This approach ensures the courts and tribunals are respected as the appropriate venue to bring forward the ministry’s facts and arguments related to a particular matter. It also ensures that there is no perception that the ministry is prejudging the outcome of the proceedings. MCSCS views all allegations of breach of the OHRC equally seriously. Responding to one allegation and not another may lead to a perception that MCSCS takes certain allegations more seriously than others. In addition, should the ministry comment on a particular case, it would set a precedent, making it difficult to withhold comment and respect proceedings in future matters. [27] As Employer counsel points out, the Crown is in an unusual position. It appoints persons to tribunals. Publicly commenting on issues before tribunals therefore runs the risk of the Crown being seen as unduly influencing a particular matter before a tribunal. Therefore, the Employer submits, it is imperative that the Crown not comment on matters before tribunals. The public comments complained of by the Union were all related to a matter before the HRTO so the Employer’s rule against it making any comment applied. [28] The Union responds that there was no reason for the Employer to have commented on the merits of Mr. Cox’s matter before the HRTO; what was needed was just a response to the gross innuendo in the press statements. - 11 - [29] The Employer suggests that any public comment in response to the public comments could have exacerbated and prolonged the situation. Instead the story ended quickly. Also, it argues, any response by the Employer might have been seen as a reprisal against Mr. Cox for bringing his complaint before the HRTO, as, for example, in Noble v. York University, 2010 HRTO 878 (CanLII). In the circumstances, the Employer submits it was prudent not to issue a press statement replying to what had appeared. The Union responds that any claim of a reprisal, had the Employer responded to the press reports, would have been without merit. [30] The Employer suggests that it cannot have breached the OHSA because there is no evidence of serious illness resulting to any of the Grievors, the standard required in OPSEU (Sager, Shelley et al.) and Ministry of Transportation, GSB No. 2000-0377 (Mikus), where serious illness was described as something more than “tension, stress, irritation or unhappiness”. [31] The Employer relies particularly on Lee et al v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4672 (ON PSGB) (O’Neil). In that case managerial employees complained that the Employer had not suitably responded to a public blog issued by unionized employees in which the managerial employees were unreasonably disparaged. The managerial employees alleged that their workplace had been poisoned by the Employer’s inaction. [32] The context for assessing what is required of the Employer is described in Lee, above, at para. 54: - 12 - [54] In respect of providing a harassment-free workplace, it is important to acknowledge that it is not humanly possible to prevent all behaviour that amounts to harassment, defamation or disrespectful behaviour towards employees. There are very real limits to the power of an employer to anticipate and control such behaviour even in the workplace, let alone outside its physical bounds. In recognition of this reality, the law does not make the employer responsible for all actions of its employees that have a negative impact on other employees. In the area of harassment in the workplace, arbitral case law has generally found, in the absence of a contractual provision requiring it to take particular action, that an employer will not be held liable unless it has been negligent or fails to act. [33] Both parties in the present case accept that the standard is one of reasonableness. Did the Employer act reasonably in all the circumstances? As stated in Lee at para. 55, “what is reasonable in response to any set of circumstances, especially difficult ones such as these, is a question about which reasonable people may have very different views”. [34] What particularly distinguishes the Lee case, above, from the present case is that management took sustained steps in that case to have the offending blog removed from the public domain, whereas, in the present case, nothing was done, besides the readiness to be of assistance to those affected by the press statements. After careful review of the managerial employees’ complaints, the PSGB found that the Employer’s actions were within the range of reasonable responses to a situation of competing interests. [35] My conclusion on the above facts and submissions is that the Employer’s failure to issue a public response in the press was within the range of reasonable responses. - 13 - [36] My reasons for this conclusion are the following. There would be significant policy consequences for the Employer, as the Crown, if it were to start to issue public statements in reaction to public comments on cases to which it were a party before courts and tribunals. These are well explained in Mr. McGetrick’s willsay. If the Ministry started doing so, then would it always have to respond? If not, what would be the circumstances when it would comment, and when would it not comment? Having to distinguish when it would comment, and when not, would open the Crown to criticism that it unjustifiably treated some social issues as more important than others. The policy shift would create a range of complex decisions for the Crown, which it can now prudently avoid. [37] As to whether the Employer should have issued an internal memorandum to staff, the position is more nuanced. The parties went through a torrid time between 2005 and 2008. They came through a period in which employees and management had to work in a poisoned work environment. Inadequate management action, inadequate managerial responses to provocation, contributed to that poisoned work environment. Through concerted work by the Employer and the Union that period was overcome. The parties explicitly addressed problems of racism, harassment and discrimination, and the parties committed themselves to bringing about a more respectful workplace in which reckless accusations were discouraged. The public statements the Union complains of flew in the face of that commitment. The statements harkened back to the period between 2005 and 2008, reviving antagonisms that had been seriously addressed by the parties in the period that followed. As the Union submits, employees within the - 14 - Toronto Jail saw themselves as again being smeared as being racists and they were affected as a consequence. [38] In this context, where a cause of the alienation between employees in the workplace in the 2005-2008 period was the Employer’s failure to have acted sufficiently, there was a labour relations purpose for the Employer to have gone beyond a willingness merely to be in readiness to assist any employee who felt particularly aggrieved by the public comments. To have issued some responsive statement would likely have brought some comfort to the Grievors, some amelioration for any harm to them caused by the press statements. The Employer might have distanced itself from the public statements and reaffirmed the values and commitments made by the Union and the Employer, to ensure that the Toronto Jail was a respectful workplace free from harassment and discrimination. Ideally this would have been done through a joint Union-Management statement, as the Union Local President proposed. [39] The question, though, is whether the failure to have given that response, particularly when the Union did not itself respond to the press statements, amounted to a violation of the collective agreement, the Human Rights Code, the OHSA, or any previous orders of the Board. [40] The relevant provision of the collective agreement is Article 3.3: 3.3 The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious - 15 - comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome. [41] The relevant provision of the Human Rights Code is s.5(2): (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. [42] The relevant provision of the OHSA is section 25(2)(h): An employer shall take every precaution reasonable in the circumstances for the protection of a worker. [43] The relevant provisions of the orders previously made by the Board are the undertakings, referred to above, that the Employer and the Union committed themselves to. [44] The issuing of an internal memorandum to staff of the jail was, I think, the preferred method of ameliorating the impact of the press statements, but, despite this, I find that the Employer’s considered approach – to stand in readiness of particular problems, rather than to make any public statement – was within the range of reasonable responses, which, as Arbitrator O’Neil said in Lee, reasonable people can disagree about. This is particularly true when the parties are faced with a difficult situation that requires some prompt response, as occurred in early March 2012. Different responses can have different results, none of which is readily predictable, nor wholly satisfactory. In these circumstances, a range of possible responses might have - 16 - been appropriate. While I do not think the Employer’s response was optimal, it was not unreasonable. It was therefore also not a breach of any of the provisions referred to above. [45] In the circumstances I do not find the Employer was indirectly liable for the harm suffered by the individual Grievors as a consequence of the published statements. [46] The grievances are accordingly dismissed. Dated at Toronto, Ontario this 11th day of September 2015. Christopher Albertyn, Vice-Chair