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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 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598.0688 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