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HomeMy WebLinkAbout2014-4507.Fitzpatrick.16-06-16 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#2014-4507, 2014-4525, 2014-4699, 2015-0578, 2015-1166 UNION#2014-0368-0219, 2015-0368-0045, 2015-0368-0051, 2015-0368-0197, 2015-0368-0255 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fitzpatrick) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ian Anderson Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel HEARING June 10, 2016 - 2 - Decision [1] This decision is issued in accordance with Article 22.16 of the collective agreement, and is without prejudice or precedent. [2] The Employer argues that the grievances are captured by the intention of the Minutes of Settlement dated June 18, 2015. In the alternative the Employer argues that the grievances do not make out a prima facie case. [3] The grievances alleged breaches of various Articles of the collective agreement. Counsel for the Union fairly and appropriately conceded that only Article 3 can be engaged. [4] I commence with the Employer’s motion that the grievances fail to make out a prima facie case. The issue is whether on the facts plead by the Union it is plain and obvious that there is no reasonable prospect of obtaining the remedy sought by the Union. [5] In accordance with directions given, the Union provided particulars to the Employer principally by a letter dated April 4, 2016. The particulars provided in relation to the five grievances relate to five separate incidents over the course of seven or eight months. For the purposes of the Employer’s no prima facie case motion, I am required to assume that the facts plead in the particulars are true and capable of proof. Counsel for the Union fairly and appropriately concedes that none of the incidents standing alone is sufficiently serious to constitute bullying or harassment. Counsel argues, however, that the five grievances should not be viewed individually. Rather taken as a whole they establish a course of conduct amounting to bullying or harassment by management. [6] I accept that the particulars provided in relation to the five grievances may be considered together to determine whether or not they establish a course of conduct of bullying or harassment. I note that the particulars provided relate to the actions of at least two separate managers: Ms. Brooks is said to be involved with respect to four of the incidents; Ms. Hamblin with respect to the other, referred to in the particulars as Grievance No. 5. There are no particulars of collusion between Ms. Brooks and Ms. Hamblin or other members of management. As noted, no single incident, including that involving Ms. Hamblin, is sufficiently serious to constitute harassment or bullying. Thus, the course of conduct must be established on the basis of not five incidents, but four incidents over seven or eight months involving Ms. Brooks. [7] One of the incidents relates to the denial of an overtime opportunity afforded to addiction counsellors to workers in other programs, of which the Grievor is but one. There is no basis for concluding that the Grievor was specifically targeted to be “penalized” by Ms. Brooks as alleged in the particulars. [8] Two of the incidents involve allegations that Ms. Brooks “lied”. However in one incident Ms. Brooks is alleged to have lied about a representation to another employee, made in the presence of the Grievor as a union representative or witness. In the other - 3 - incident, four or five months later, Ms. Brooks is alleged to have lied about the fact that a different supervisor had made a representation to the Grievor with respect to what transportation arrangements should be made for an inmate. It is difficult to see how the alleged lie about a representation made to another employee in the presence of the Grievor could constitute part of a course of conduct towards the Grievor. In any event, there is no plausible basis on which the two separate incidents taken together can be said to constitute a course of conduct. [9] The remaining incident involves the allegation that personal information in relation to the Grievor was shared with another bargaining unit member, Mr. Morrison. The Grievor alleges that Ms. Brooks has given supervisory functions to Mr. Morrison and that this has created “confusion” on the part of other managers. It is clear that the Grievor is of the view that it is inappropriate that a bargaining unit member be given supervisory functions. (The Employer points out that the collective agreement contemplates that bargaining unit members may be given supervisory functions on an acting basis.) The Grievor provided personal information to the Deputy of Operations, J. Merriam, as an attachment to an email in support of a request for one day’s leave. The Grievor alleges that the personal information in question was sent to Mr. Morrison by Mr. Merriam because Mr. Merriam thought, incorrectly in the Grievor’s view, that Mr. Morrison was acting in a supervisory capacity in relation to the Grievor. There is no suggestion that it would have been inappropriate for Mr. Merriam to have copied Mr. Morrison if Mr. Morrison were in fact in a supervisory role in relation to the Grievor. By way of remedy, the Grievor seeks two weeks vacation and that the “chain of command” be documented and posted. [10] It may or may not be the case that supervisory functions were appropriately assigned to the bargaining unit member in question. That, however, is not the issue before me. The issue before me is whether the sequence of events described constitutes bullying or harassment by Ms. Brooks. I am unable to see any plausible basis for this conclusion. The mere act of putting a bargaining unit employee in a supervisory position in relation to another bargaining unit employee does not constitute bullying and harassment. The copying of Mr. Morrison on the personal information was not done by Ms. Brooks and was entirely a result of Mr. Morrison having been placed in that position (rightly or wrongly). In any event, I can see no basis for the two weeks of vacation the Grievor seeks by way of remedy. [11] Accordingly, I find that the grievances fail to make out a prima facie case of a breach of the collective agreement or that there is no basis for the remedies sought. In the result, it is not necessary to address the Employer’s argument as to the intent or effect of the Minutes of Settlement. [12] For all of the foregoing reasons, the grievances are dismissed. Dated at Toronto, Ontario this 16th day of June 2016. Ian Anderson, Vice Chair