HomeMy WebLinkAbout1988-1335.Koh.89-07-17 ONTARIO EMPL OY~'S DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE C,OMMISSION DE
SEITLEMENT REGLEMENT
BOARD' DES GRIEFS
t80 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8 - SUITE 2100 TELEPHONE/T~I..~PHONE
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1335/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Koh)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Health)
i' Employer
Before:
M.R. Gorsky Vice-Chairperson
M. Lyons Member
~ G.. Milley Member
For' the ~r~evor: A. Ryder
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
For the EmDloyer~ M. Quick
Counsel
, Legal Services Branch
Ministry of Health
Hearings May 11, 1989
AWARD
The Gr£ev,z,r, CHONG KOH, was at all material times emplc, yed
as a Medical Technician ~n the Regional P:.~bli~
Labc, ratory lc, cared at Lc, nde, ri. He was first emplc, yed at
the facilit~ in 1974 and has been in his present position
since 1978.
The grievance before the Board was filed on' Septembe~ 26,
1988 and concerns alleged discipline and harassment by the
Employer in failing to choose the Grievor to attend a
parasitology course which was to be held in Tc, rc, ntc, in the
late fail ,:,f 1988. The 8rievor believes that he was n,i~t
chosen tc, attend the cc, urse because the representative$c~f
the Empli:,yer were prejudiced against him because c,f an
unfair labour practice proceeding, then current, which he
had br,~ught against the Empiwyer. He aisc, believes there
was animus directed against him because he had embarrassed
h~S Employer by bringing attent~c,n to allegedly improper
I~'atory practices involving th~ failure t,~ follow bench
manuals.
The Employer, for its part, without any acknowledgment
that it had done anything improper, was agreeable to
undertaking to send the Grievor to the parasitology course
when it next decided to, send c, ne of the medical
techni.~ians from the Regional Labc, ratc,',-y. The Grievc, r wa,_--,
not agrmeable to accepting this offer c,f settlement and
Union counsel stated that the Grievor did not rega',-d the
c, ffer c,f settlement to, be adequate without an
acknowledgment that the action ,:,f the Empl,:,yer amc, unreal
discipl ine wit?~out .j ,.~s t cause and that he had been
harrassed, in additic, n to any ,:,ther relief, the Grievor
requested a declaration to that effect and an Order
requesting that such cc, nduct cease.
The only grievance that was bef,:,re the Board is fnund
Exhibit 2. The only "settlement desired" as claimed in
the grievance is: "to be sent for (sic) Parasitology
course". As the Employer undertook to send the Grievor to
that course in priority to, any other medical technol,~gist
at the Regional Office, sh,--,uld it decide to send someone
to the course, it submitted that ought to end the matter.
T~e. position taken on behalf of the Grievor was that such
a settlement would leave him vulnerable to' further
harrassment by the representatives of the Employer and
that in order to make him whole, the further declaratinn
and order sought ~ere necessary.
On the facts, the grievance is fo,.~nOed c,n an allegation
that the representatives c~f the Employer, in purported
exercise of its exclusive functions under Sectic, n 18(1) (b)
of Crown Emp!,_-.,yees Collective Barqainin~ Act (hereinafter
called the "Act") "to, determine .... training and
development" had, in fact, disciplined the Grievor for his
'acti,~ns in raising doubts about the cc~rrectness of certain
laboratory procedures mandated by his super it, rs and
because c,f his having pursued an unfair labc, ur practice
complaint against the Employer.
Counsel fc, r the £mployer denied that the failure tw cboe, se
the Griev,:,~ to attend the course was motivated by bad
faith with the intention of imposing discipline and argued
that what the Employer had done was a' -~mpl~ exe~ci.~.?.o£ i['~
exclusive function to further the training and de'~elopment
c,f its employees. As such, it was submitted, the matter
was not within the jurisdiction of the Bc, ard.
T~'-difference between the parties r~ises the issues: Was
the decision not-to send the Griev,~r to the paresitology
course a good faith exercise of the Employer's rights over
"training and development" as f,~und in the Act ? In which
case it is be){ond the jurisdiction of the Board. Or was
it merely a purported exercise of those rights, in reality
disguising a decisic, n made in bad faith t,:, p,.tnish the
Griev,'--,'r' If the Griev,z,r suceeds, l',e .... ,.,1,.., at m,J~mt, ,-,btain
the settlement specifically sought in 't'nis griev,'.nce.
That is, on a finding that the Bc, ard had j,.~risdicti,~,n
because the matter fell properly under Section 18(2) c,f
the Act, because the 6rievor had "been disciplined ....
withe, ut .]~'~t cause" it wc, uld be argued that the Grievc, r
should be pent to take the parasit,:,ic, gy cc,,.trse. Such an
award wo,.,id presuppose that it was futile to o:,ntinue to
leave the matter c,f choice to the Empl,;,yer because .c,f its
manifested hostility toward the Grievor, w~oh woul~ praclude .a
bona fide exercise of its rights under Sectic, n 18(1)(b) ,2'f
the Act. In the absence of such evidence, I would
cc, nsider remitting the matter to, the Employer to enable it
to chc.:,se an employee for training and development in a
manner that is untainted by evidence ,~ bad faith.
This is-not a case such as 0_~ (Flinn et al) 0022/88¢
wb-~--ze the grievance was not c,:,,.~ched in terms of ai leged
d~ipline without just cause arising out ,;,f a bad faith
exercise of Section i8(1)(b) rights. There (at p.5) "the
only issue.., was one relating to, training and
deve 1,:,pment..." Here it wa~ ,~pen to the Unic, n
demonstrate the true nature c,f the issue to be whether the
Griev,.--,r was disciplined without just cause under the guise
.,,f exercising a right under Section IB (l.){b) w~ich was it,
fact a subterfuge to disguise bad faith.
Although it is t. tsuall.y the responsibility of the Empli:,yer
t,:, establish th-at it imp,~sed discipline f,z,r just cause and
to, pre, teed first in such a case, here, the Emplnyer denies
that any discipline was £mpc,~ed when it did not choose the
Grievor to attend the parasitc~logy cc, urse. In order
the Grievor to succeed, it must first be established that
the failure to designate the Grievor as one of the
emplc, yees choosen to attend the course was not a bona fide
exercise of the Empl,:,yer's rights under Sectic, n 18 (1)(b)
c,f the Act, but a bad faith decision t,z, discipline him
withe, ut just cause.
The Grievor, in his' evidence, recited facts that indicated
a long standing history of p,~c,r relati,:,ns between himself
and many of his super£ors and cc,-workers. One example was
f~r~nished to us where a Supe'rvisor, who is -no longer at
tb~i regional facility, was 'found not to have genuinely
exercised discretion on behalf ofm~.a~eme.~ but to
under the 8utse of doinL~ so, in fact, imposed a disbursed
form of discipline without just cause. (OPS£U (Kc, h) and
The Crown in Right of Ontario CMinistrv of Health])
{J.Fc, rbes Roberts]. 2A26/86). That case involved an,;ther
grievance by this Grievc, r who claimed (]at p.l) that the
Employer disciplined him without .just cause b-~. d~nying him
certain overtime opportunities that were nc, rmally assigned
on a rotation basis. ~s is the case before us, the
Employer raised a prei'iminary objectic, n to arbitrability
(at p.1) denying that any discipline had been imposed and
argued that the assignment was a genuine exercise c,~ its
right under Sec. 18 (1)(b) of Bhe Act. The' Board, there,
found the Employer's representative had engaged in a
disguised form c,~ disciplinary action. Can the same be
said o~ the Employe~'s actions in the case before ~ls ?
I need not agree with the findings of the Bc, ar~ in
earlier case that the facts disclc, sed a disguised fo, re
discipline. I do agree, however, with th~ p'rc, pc, sition
that Section 18 (1) c,f the Act is not determinative in
cases where there has been a bad faith exercise c,f
discretion.
T~ only evidence before us is that of the G~ievor. His
memory was very poor and al 1 I concluded from his
recitation of the facts was that:
i. He did not get along with, most of his superic, r~ and
CO-WOr Rets.
2. There was a parasite, logy course offered in Tnr,:,ntc,
to, which the Employer had sent medical technicians
frnm the Reg±c, nal Laboratc, ry from time to time.
3. He did not have knc, wledge of what the course was
comprised of, h,:,w long it was, what was actually
ta,.~ght or how it would suit his needs. He didn't
know if it was a basic course, an advanced course, a
practical c,r theoretical course. He never made any
inquiries of management or his fellow workers or of
those c, perat~ng the cc, urse tc, discover whether he
would bene{it from it. A fellow wc, rker ~i[b whom' he
l~.ve~ had taken the course, but he does not appear to,
have pursued any of the above matters with her.
There was also no evidence that anyone in
supervision had failed to answer any questions
concerning the cc, urse. He did not know whether
employees were sent on ~he course every year.
4. His conclusion that he was being disciplined was
apparently the result of his being informed by the
Director, Dr. R. S. Maharajah, in the fall of i988,
that he was not chosen to attend the program because
there were a number of things to settle first and
that he wnuldn't be sent unless he "co-operated".
The~ Grievor cc, nc i uded that the Direc t,-Jr was
referring to an c, utstanding unfair labour practice
complaint mn~ to, a dispute involving, a disagreement
.between the Griewz, r and ~is muperiors as to proper
laboratory testing procedures. The Grievc. r did nc, t
ask the Director what he meant by his statements and
we we~'e invited to, find tha~ they meant what the
Grievor thc~ught they meant. There was no evidence
that would demonstrate that the Di~-ector was not
forthcoming. Hi~ statements cc, uld mean just about
anything. They d,~ nc, t support a prima facie case
that the Grievor was being disciplined.
5. The Grievor made nc, enquiries to find out whether
employees from the Regional ~aboratory were sent
the course every year c,r why the decision to send
one employee in 1988 was withdrawn.
I~' iS incumbent, in this case, for the Grievor to prove a
~rima facie case that the actions of the Employer amounted
to a disguised form of discipline. Counsel for the Union
argued that this was a case where all of the facts were
necessarily within the knowledge of the Employer and that
it would be unfair to impose a g~eater burden on t~e
Grievc, r tn come fc, rward with more evidence. There are
.~ell kn,:,w:~ examples where it wnu!d be unfair
Where the peculair knowledge c,f c,l"~e ,_~f the parties
'r~quires ~t to, come fc, rward wi~h evidence t,:, rebu~ the
allegations made. Here, the Grievor made nc, eff,_,r~ to,
obtain any information which would poznt to a mala fide
~xercise c,f the employer's rights under Sectic, n I8 (1)(b)
c,f ~he Act. This is not a case where it would be unfair
to th~ Grievor to require him to cc, me forward with more
evidence on the question of bad faith. In failing to
pursue obvi,:,us lines ,:,f inquiry open tc, him, the Grievor
could avoid facing any conc~usic, n that conflicted with his
view that management was out to get him, based on his
subjective view of the relationship.
The Grievor is not assisted by the earlier case between
the same parties where mala fides was shown (2026/86 J.
Forbes Roberts). The person there fo-nd to have acted in
b~l faith was not involved in the facts of the case before
us~ ~]ther than a statement by counsel fnr the Union that
it furnished a basis for finding a repetition of the
earlier cond,ict, no auth,~rity was offered in sJipport of
such a conclusion, nor have I been able to find any.
Even th,_,ugh cc,,.~nsel 'fc,'r the Employe~ ~dduced r.-, evidence,
? 'fc,,.~nd b;~e 'Grievc,'r:'~ evidence sc, lacking in s,.~b.~'tarlce as
~c, preclude a conclusion that~,e" *~ r~ was,
f~cie case made th.~t ~he actions c,f the Emptc, yc,~' a~T~,Punted
to discipline withc, ut just cause. What was manifest was a
sit~latic, n in the work place where the Grievor fel~ that
mc, st c,f his supervisors 'and fellc, w wc, rke~-s disliked him
and that the Director was seeking to, punish him for the
two, reasons set ,:,ut above. The evidence that might have
demonstrated the correctness of this conclusion was
largely lacking in cogency. As the -Employer called nc,
evidence the c, bjective facts testified to by the Grievor
must be accepted as true. This dc, es not, hc, wever, apply
tc, the subjective concl,.~sions he drew from them c,r to his
· .' general feelings c,f being discriminated against by the
Emp 1 c, yer.
in Balonyk v. Greater Niaqara General Hos~£tal (1985) 25
O.A.C. 212 (Div. Jt.), Rosenbe~g, J., at ~.218, nc, ted that
i~ determining whether tl~ere was just ~ a,.ise for
discipline, it was the c, bjective facts that had to be
assessed by the arbitrator and not the subjective
perceptions c,f them by the Grievor. Here, in de~ling with
the question of whether discipline had been imposed on the
Grievor, the ob~jective facts are c, nly capable of being
viewed as inv,-',l'ving a disciplinary response if we see them
through the subjective perceptions .:,f the Grieve, r, and
that is 'as impermissable here as in a case involving
whether discipline was imposed f,-.r just cause.
In the circumstances and for the above reasons, this
grievance is ~ismissed. ~e he, pc that the Employer will
still carry out its offer made tm the Grievor.
DATED at Toronto, this 17th day of July , I989.
M'~TG°'rsky'/~Vice-Chairpers°n -
:'I M. Lyons, ~ember
G, Milley, Member