HomeMy WebLinkAbout1992-3039.Chircop.95-12-20
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$'~- ~'7'J ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DEL 'ONTARIO
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1111 GRIEVANCE COMMISSION DE
.
SETTLEMENT REGLEMENT
. BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 2700 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELlECOPIE (416) 326-1396
GSB # 3039/92
..:.._,..;;.......-~~'~~~ OPSEU # 93A128
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[,1 \..J. r...L.J \,::.. " 'J i.:J V . ,"". l~:.:" IN THE MATTER OF AN ARBITRATION
i DEe 2 21995 Under
I r~ut3uC 8i" H/Wr:HE CROWN EMPLOYEES COLLECTIVE BARGAINING ,ACT
, AppEAll8/))t\~D~
". ~ if: ~- ; ) x. 'Fr' u U t:-, Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
a OPSEU (Chircop)
Grievor
- and -
The Crown in Right of onta~io
(Ministry of Transportation)
Employer
BEFORE S Kaufman Vic~-Chairperson
E Seymour Member
0 Montrose Member
FOR THE A Lokan
GRIEVOR Counsel - '-.
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE M Mously
EMPLOYER Grievance Officer
Ministry of the Solicitor General &
Correctional Services
HEARING April 26, 1994
August 19, 1994
January 3, 4, 23, 1995
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Index
Page No.
1- The Evidence 3
A. overtime 3
B. Evidence re Intention to Recall 7
C. The Grievor's Relationships with
Superiors 10
i) Shift Supervisor Terry Williams 10
ii) Supt. Blrunton
a) General Relationship 25
b) The Christmas 199-1 Report 26
c) Missing Roast Beef 29
iii) Shift Supervisor McKenzie 31
I;>. The competition 32
2. The Ar9uments 39
A. Overtime 39
B The Twenty-Day Rule 43
C. Estoppel ~ 44
D. Discrimination 47
E. Remedy and JUrisdiction re Remedy 55
3. COIlclusions 58 --- .--
A. Overtime 58
B Determination re the Twenty-Day Rule 67
C. Discrimination 71
i) This Board's Jurisdiction 71
ii)_ Burden of Proof 73
iii) Damages, 75
iv) Jurisdictionre Remedy 76
v) Estoppel 78
vi) Conclusions re Art. A Grievance 79
vii) Remedy - -- -- -- ---_.-~-~- ~ 95 ----- .- ---- -- -- --
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DECISION
This decision deals with two grievances of Mario Chir-
cop, who was an unclassified regular part-time (RPT) Cook 2
at the Stratford Jail under a series of continuous Appoint-
ments to Unclassified Service (Ex. 7) commencing June 12,
1989. The last Appointment was effective February 1, 1992
with a stated expiry date of July 31, 1992 The first grie-
vance, dated August 28, 1992, alleges wrongful dismissal,
discrimination, harassment and intimidation by the management
of the Stratford Jail The second, dated September 24, 1992,
grieves improper payment under Art. 3.4, and claims payment
at the overtime rate for all hours worked in excess of 8
hours, retroactive to June of 1989 Preliminary objections
have been dealt with in a pEevious interim decision.
Briefly, the facts giving rise to the dismissal/discri-
mination grievance are that during the grievor's last Ap-'
pointment, the Stratford Jail was to be closed for construc-
tion before his Appointment expired. On March ~1, 1992,
Supt. D.G. Brunton advised the grievor (and others) QY letter
of a lay-off effective April 11, 1992. The letter provided
Dear Mr. Chircop:
- - I am writing to inform you that effective Ap-
ril 11, 1992 you are laid off from your posi-
tion as Onclassified Cook at the Stratford
Jail.
-- This Layoff is due to the temporary closure
of the Stratford Jail for construction. It is
anticipated at this point that the closure
will be twelve weeks in duration. I can fur-
ther inform you that you will be. recalled upon
the reopening of the Stratford Jail.
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Should you require any assistance with the
processing 0f your UIC claim please contact
- --. - -- -~--_. - Ms. B. Crawford at the Stratford Jail
I wish you well and hope to see you in approx-
imately 12 weeks.
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D G. Brunton
Superintendent
Stratford Jail
At that point about 16 weeks remained under the grie-
vor's last 6~morith Appointment. As with most renovations,
those of the Stratford Jail were not completed within the
initially anticipated schedule. On June 3, 1992, Mr. Brunton
sent the following memo, addressed to all staff (Ex. 4) :
As earlier discussed, I am writing to you to update
you on the construction project at the ,Jail
To date the construction is moving along as planned
with only a few minor setbacks. At this time I am
anticipating the opening of the Jail to occur dur-
ing the last week of July.
I hope you are continuing to enjoy your temporary
ass.ignments.
A classified position for a Food S~rvices Officer RPT at
the Stratford Jail was posted in March, 1992 (competition CI-
4015-92) for which the grievor applied While the Jail was
still closed for renovations, by letter dated July 29, 1992
(Ex 8) thegrievor was given an appointment for an interview
on August 5, 1992. Supt Brunton chaired the selection
panel, composed of himself, Frank Hill and J McKenzie. By
letter dat~d AugUst 7" 1992 (Ex. 9), Supt. Brunton notified
--- Mr. Chircop that helwas not successful in the competition A
I non-public and non-civil servant, Mr Persad, stood first in
the competition and received the classified Cook 2RPT posi-
tion. The competition report form (Ex. 17 ) indicates the
grievor'sscore was the lowest of all the competitors.
On August 17, 1992 Supt. Brunton sent the grievor the
following letter (Ex. 10) :
August 1 T; 1992
Mr. M Chircop
[address]
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Dear Mario:
As you are aware, the position you were backfilling
at the Stratford Jail has been filled by competi-
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tion As a result I will not be renewing your con-
tract with us.
I wish you all the best in your future endeavours.
SiIlcerely
D.G. Brunton
Superintendent
1- The Evidence:
Evidence was heard on April 26, 1994 wit~ respect to
preliminary objections, and on August 19, 1994, and January 3
and 4, 1995 with respect to the merits.
A. Overtime:
On April 26, 1994, Supt. Brunton advised that the first
time the grievor worked a saift in excess of 8 hours was on
June 7, 1990. From June, 1989 to April, 1991, the grievor
worked almost .every weekend, but in May, 1991, the pattern
changed, and he then began to work every third weekend. He
agreed that the grievor started 12-hour shifts about a year
after receiving his initial Appointment. He said that Mr.
Chircop began working 12-hour shifts because 3 people worked'
~;:,~ in the kitchen. Supt. Brunton had been at the Jail about 6
months when -he and the scheduling officer began to review the
kitchen schedule and added 12-hour shifts to lessen the' num~
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ber of weekends any employee would hav~ to work within a
scheduled rotation. He said that Cook's Schedule (Ex. 6) was
implemented "after June of 1990", "in the area of November or
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December, 1990" and that from the time the grievor began to
work 12-hour shifts until the time he left, he did not indi-
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cate that there was a problem.
... -- On Janu?1ry--3;- 1995 Supt. Brunton said that the Cook's
(sic) Schedule (Ex. 6) was developed "as a result of feed-
back from the kitchen". The classified cook was not working
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He said that the intention behind Ex 6 was to schedul~ week-
ends equitably between the 3 cooks and allow them certainty
to plan their time. He said that he was not sure how the
cooks' hours of work had been determined before Ex 6 was
developed. The grievor had been having to work most week-
ends and undesirable shifts, such as late hours and early
mornings. He said that the schedule would be posted 3 weeks
in advance and unclassified people were also called in on
shorter notice. Once Ex 6 had been implemented, the cooks
could forecast their hours for the entire year They were
still expected to come in on a call-in basis when someone
else was absent or sick.
The grievortestified that he had no say as to whether
he worked the schedule ( Ex. 6 ) He said that the schedule
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was done by "one of the supervisors, and Mr. Fournier, the
Head Chef". He said that he was a "casual" i e. an unclassi-
fied cook, when the schedule (Ex. 6) was implemented, and
that Mrs. Lowe was the Regular Part-Time (RPT) Cook and was
on long-term sick leave.
OQ April 26, 1994 the grievor said that after August 17,
1992, the date of the letter of dismissal, he learned from
union steward Dan Gravier that he was entitled to be paid at
the overtime rate when he wo~ked longer than an 8-hour shift.
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He said he was aware he was working 12-hour shifts, but una-
ware that the employer had not been paying overtime at time
and a half and that he was entitled to be paid at that rate
when his work day exceeded 8 hours. He acknowledged in
cross--examination that he was aware of the length of his
shifts, that he worked 12-hour shifts from June of 1990 to
April 9, 1992, received paycheques for all the hours he had
worked, and had reviewed his paycheques for accuracy He --
said that "sometimes" he saw the overtime hours he had worked
-~ ---- ___ indicated. on his paycheque and that he did not look at whe-
ther he was paid overtime for his 12-hour shifts. He agreed
that he thought that the full 12 hours of the 12-hour shifts
were to be paid at straight time. He said that he could not
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recall whether he had any concerns' about whether he was being
paid correctly then. He had not spoken to anybody ,about whe-
ther he was being paid properly. He did not dispute that he
became concerned with overtime after he learned that he was
not coming back to work. He agreed that he had spoken to
union steward David Parsons during the period that he had
be.en working, and to Mr. Gravier and Mr. Kloss the odd time,
but that overtime had not been discussed. He did not dispute
that he had last worked a 12-hour shift about 6 months before
the date of his first grievance.
On August 19, 1994, the grievor s~id that during his
employment at the jail, he had a regula~ schedule, and that
in addition he would be "called in for overtime", when the
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head chef "had a day off or was not able to come in. He said
that on some occasions he was paid overtime when the head
chef did not come in ahd that sometimes he would receive 2
hours' notice that he was required to come in to work extra
hours, and on other occasions, a day's notice.
On Janu.ary 3, 1995, in cross-examination, the grievor
agreed that he received overtime pay on occasion. He did not
agree that he had been paid at overtime rates when he had
been kept past his regular scheduled hours, and when he had
worked more than 40 hours a week.
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Supt. Brunton testified on January 3, 1995 that no cooks
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were paid overtime for working the pre-scheduled shift of 12
hours per day 0600 - 1800 on Saturdays and Sundays, whether
they were classified or unclassified because "it's somewhat -
akin to a compressed work week schedule" He said that he
had ~poken with the cooks and that they had informally agreed
to that. He said that an unclassified would be paid at the
overtime rate when he worked over 40 hours a week, or if he
worked beyond his scheduled hours (the panel understood him
to mean if the cook worked beyond his Week 1, 2 and 3 hours
in Ex. 6) , or if his schedule was changed without appropriate
notice He said that none of the other cooks had complained
about overtime.
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On January 4, 1995, Supt Brunton acknowledged in cross-
examination that he assumed that the Cook's Schedule (Ex 6)
had started to be followed around June of 1990. He agreed
that, he had no personal knowLedge of the development of the
schedule, and that the schedule came from the kitchen. He
was unable to confirm that the scheduling officer obtained
the grievor's agreement to the new schedule, and did not dis-
pute that the new schedule had not been discussed with the
grievor. He said that the union did not challenge the sche-
dule He agreed that the Attendance Report (Ex. 5) for June
1990 did not demonstrate a pattern of two 12-hour shifts
every 3 weeks for the grievor. He said that Ex. 5 was the
Attendance Report for unclassified employees, and that Mr.
Fournier may have been on vacation. He agreed that the two
12-hour shifts were erratic in August, September, October,
November and December, 1990, and that the Attendance Report
of January and April 1991 did not reflect the Cook's Schedule
(Ex 6) but did reflect it in February and March of 1991. He
noted that there were 12-hour shifts out of the scheduled
rotation in April, 1991. When asked whether he would agree
that there were a large number of 12-hour shifts which did
not conform to Ex. 6, he replied that that was because the
grievor was unclassified and that irregularities occur due to
staff training, vacations, and illness. He agreed that un-
classified employees are scheduled to work random slots of
regular schedules, and are also, at times, employed to fill
consistent, regular, scheduled hours. The latter situation
arises if a re9ularly scheduled person is absent e.g. for
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extended illness, and that a person would be hired on con-
tract to fill in a vacancy. He agreed that that did not des-
cribe the grievor and that the grievor-'was not filling in for
a position which was vacant.
In cross-examination on January 4, 1995, Supt. Brunton____ - --.- --.-
agreed that he had noted earlier that Ex. 6 indicated that
the grievor was paid overtime on two occasions in June 1990,
that there were notations re overtime in August of 1990, and
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that the notations continue on in the Attendance Report. He'
acknowledged that he did not know on which occasions the
grievor was paid overtime. He agreed that it was fair to
assume that the grievor was paid overtime where overtime was
marked on the attendance report, but not where it was not ,so
marked, "if the record was kept properly".
In re-examination, Supt. Brunton said that he would not
expect an unclassified employee to work exactly the hours
specified in Ex. 6, because they will be asked to work when
other staff are sick, absent or on vacation. He agreed that
if an unclassified cook is asked to work other shifts, it
would be a 1, 2, 3 or 4 shift. He said the institution would
try not to put, an unclassified employee into an overtime po~
sition, and that that meant working in excess of 40 hours per
week. He agreed that an unclassified cook might work a 12-
hr. shift on rotation because he was filling in for someone
else. When asked whether an unclassified cook might work a
12-hr. shift on rotation because another cook did not show
up, he replied "no" and said that the Jail would call an
unclassified person, who would not be entitled to overtime
unless s/he worked over 40 hours per week. When asked whe-
ther someone would be entitled to overtime for the 11. 5 and
9 5 hr. shifts, he replied that he "added the half hour on
kitchen-shifts to allow for clean-up time" He agreed that he
h~d no information as to how Mr. Chircop came to work any
particular shift outside of the rotation on Ex. 6.
B Evidence re Intention to Recall:
On January 3, 1995, the grievor agreed that when he
signed the Appointments/contracts (Ex. 7 ) he understood that
they set out the terms of his employment, that each term of
._----~_.._-_._- ~- --- employment began and ended on the dates at the top of the
contracts, and that they constituted the term of expiry.
When asked whether he understood that there was a guarantee
of renewal of his contract, he replied "possibly" and then
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said that he meant "either it would or wouldn't be renewed".
He agreed that he understood that if it wasn't renewed he
would no longer be an employee at the Stratford Jail. He
agreed that he would have received Supt. Brunton's letter
dated March 31, 1992 (Ex. 3 ) in March, 1992 He said that
the letter said that he would be temporarily laid o~f during
the construction, i e. the closing of the. jail. He said that
'from the reference to recall in the letter he understood that
he would be going back on duty once the jail re-opened. He
said that he was "off work" until August 17, 1992 . He said
that while "off work" he did not look for other employment
because he understood that he would be recalled once the jail
re-opened. He said that if he had known that he was not
going to b~ recalled, he woul.d have pursued a full-time posi-
tion elsewhere.
In cross-examination on January 3, 1995 the grievor said
that he understood from Supt. Brunton's lay-off l~tter (Ex.
3) that the Superintendent had an obligation to recall him (
when the jail re-opened, because he had recently signed a
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renewal contract as a casual, and that he was just tempora-
rily laid off like all unclassified employees. He noted that
the last contract applied to the period from February 1, 1992
to July 31, 1992. When asked whether Supt. Bruntgn had the
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same obligation to rehire him if the renovations were not
complete by July 31, 1992, he replied "probably not". He
said that the plan had been to re-open the jail 12 weeks
after April 11, 1992, and that that date would have fallen
within the period of his contract.
On April 26, 1994, Supt. Brunton testified that the
grievor "didn't finish out his contract due to the temporary
closing of the jail". On January 3, 1995 Supt. Brunton said
that in the spring and s,umrner of 1992, the Jail's security
---............. ----_. and fire safety features required upgrading, that he deemed
it necessary to move the inmates out of the Jail and to close
it when the security bars and doors had to be replaced, and
that the Ministry of Government Services ,told him that a 12-
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week period was required. He said that the Jail was closed
until just before Christmas of 1992. The stratford Jail had
17 COs, only 3 or 4 remained empioyed there during the clo-
sure for security, and other classified COs were offered
shifts at other Correction Centres during that period.
On January 3, i99S, Supt. Brunton said that unclassi~
fied COs and other unclassified staff were laid off. A mee-
ting was held to which the Unemployment Insurance Commission
sent a representative regarding the process for claiming U I
benefits. He said that in addition to the meeting, he sent
unclassified COs a letter which contained the text of Ex 3
(the March 31, 1992 letter to_the grievor). He agreed that
he had told the unclassified COs that they would be recalled.
He said that the classified Cook (Mr Fournier) went to Blue-
water Youth Centre during that period. He said that 9 COs
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and 1 administrative clerk, 1 nurse, and 2 Cooks, all unclas-
sified, were all laid off, and all received similar letters.
He said that there were 4 Supervisors at the time of the
closure, each of which was assigned elsewhere, that he was
given a secohdment during that period, and that he still has
responsibility for the Stratford Jail
Supt. Brunton testified that by the words "I can further
I inform you that you will be recalled upon the reopening of
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the Stratford Jail" in Ex. 3, he meant "that all things being
equ~l,their positions would still be the.re". He said that
he was not using the lay-off to get rid of anybody, and that
he wanted to assure them that their employment would be
there He said that "all things being equal" me?-ns that the
Ministry uses unclassified contracts to cover illnesses and
absences, and when circumstances change, the contracts aren't
required any more. He said that when he laid the grievor
off, he did not feel that he had an obligation to rehire him.
He said that--the -grievor I s contract had expired, a competi-
tion had been held to fill one Full-Time classified position,
and that one unclassified p0sition and "two people" were
left He said that he said that the rievor would be recall-
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ed in the March 31, 1992 letter "because I w~nted to assure
them their jobs would be there on completion of the renova-
tions, all things being equal". He said that in assuring
them of recall, he was referring to the then expected d~te of
re-opening. He agreed that he had not recalled the grievor.
He acknowledged having sent the June 3, 1992 memo (Ex. 4), to
update both the classified and unclassified staff. The memo
indicates that he was then anticipating re-opening the jail
during the last week of July.
c. The Grievor's Relationships with Superiors:
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- i) Shift Supervisor Terry Williams
The grievor described Terry Williams as an OM15, a lieu-
~'f; tenant, a member of management, a direct supervisor, although
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not his immediate supervisor. He described his relationship
at the jail with Mr. williams as "not too good". The grie-
vor's memo of May 18, 1991 (Ex. 12) indicates that he experi-
enced some unpleasant behaviour from Mr. Williams in Bent~
ley'~ Tavern in Stratford on April 26, 1991- The grievor
testified in detail as to Mr. williams conduct that evening.
In brief, his undisputed evidence was that Mr. Williams, with
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~{i whom he had not spoken that evening, and who he had not pro-
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voked, accosted him, grabbed him by the arm, and subsequently
by his shirt collar -with his fingers, in a manner that inter-
fered with his breathing, ana insulted him both personally
and professionally and accused him of having misrepresented
his job at the jail. Among Mr. William's remarks was his
reference to the grievor as a "short fuck". The grievor said
that he~ intended to call the police, but Mr. Kennett and Mr.
Lavereau, who were with him, "strongly recommended" that he
__ ----"take it_up with the union" and he subsequently submitted_ a
memo ( Ex 12) to Supt. Brunton about the incident and his ge-
neral dissatisfaction with Mr. Williams' conduct toward him.
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The grievor said that Mr. Williams "constantly" made
comments about his ethnicity, which is Italian He said that
Mr. Williams used the terms "wop", "wop" with profanity,
"short wop", "fucking Italian", "stupid Italian"J '~stupid
wop", and that he said "is there one intelligent Italian
among you?". He said that he disiiked the comments, and that
he got "pissed off at the time", but that "you don't do any-
thing about it, you keep it to yourself". He said that, "eve-
ry time Mr. Williams carne into the room" he remarked about
the food that the grievor had prepared e.g. "I don't eat this
kind of shit" and "I don't eat this Italian slop". He said
that Mr. williams made personal comments about him, -e.g . that
he was always late, unshaven, "get closer to the razor blade
next time". He denied that he went in to work unshaven. He
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said that Mr. Williams made comments of the above nature both
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before and after the Bentley's incident and that Mr. wil.-
Iiams' comportment did not improve after that incident.
Thegrievor testified that Mr. Williams said to him that
he, the grievor, was "going nowhere". He said that on one
occasion Mr. Williams said t.hat as long as he had involvement
with correctional services and employment at the Stratford
Jail, the grievpr will be going nowhe~e as long as he can
help it. He said that he uRderstood Mr. williams to-mean
that he was always going to be in his way of a better posi-
tion, whether in food services or corrections.
The grievor testified that Mr. Williams criticized his
competence as a cook. On one occasion, in the presence of
Gorrect~ons officers at the Stratford Jail, Mr. Williams ac-
cused him of burning batter-fried fish, which was not in fact
burnt, and Mr. Williams ate two helpings of it. He said that
Mr. Williams' criticism on that occasion was not an isolated
incident, and that Mr Williams was always criticizing him.
He said that there were occasions-when-he beiieved-Mi~-Wil- -- -
Iiams was under the influence of alcohol at work. He said
that on one occasion Mr Williams accused him of not shaving,
and sald "you shou..lC1 've seen the state ne was in, all messed
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up" and that Mr Williams smelled of alcohol on that occa-
sion. He said that the occasions on which he could smell
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alcohol on Mr Williams' breath at work usually occurred on
weekends and "sometimes" during the week. I
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Mr Chircop testified in cross-examination that Mr. wil-
Iiams made comments about his cooking ability on every shift
on which he had been a ~hift Supervisor since he, Mr. Chir-
cop, began to work at the Jail. He acknowledged that those
comments had been going on for "quite sometime" before the
incident at Bentley's. He agreed that Mr. Williams continued
to make the same type of comments at the same level of fre-
quency after the Bentley's incident. _He said that Mr. wil-
liams had made comments about his ethnic origin from the
start of his employment and that they continued after the
incident at Bentley's.
In cross-examination, the grievor agreed that when he
was subjected to Mr. William's comments about his racial and
ethnic origin and about his future with the Ministry, he con-
sidered them serious, unwarranted and uncalled for, that no-
thing in his performance or appearance would justify them,
that he considered them an attack on himself personally, and
that he considered them serious enough for ~anagement to
intervene. He said that it was never dealt with. He agreed
that the "racial and ethnic" comments would be more serious
than the comments about his cooking and whether he shaved.
When asked whether he was aware that there was a violation of
the HUman Ri9hts Code he indicated that he did not understand
the question.. He agreed that he felt that management should
have dealt with the comments. He said that he was not aware
at the time that the Ministry has a policy against racial
- discrimination in the workplace. When asked whether he
became aware of the policy later, while employed at the Jail,
he replied that he "gradually .. ~picked up on these~ things".
He said that after he reported the Bentley's incident, Supt.
Brunton told him that it would be dealt with very severely
and it was .never dealt with. He testified that Bentley's
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broke his back, that it had occurred in public, and had been
embarrassing and humiliating.
The grievor testified that he reported the problems
with Mr williams to management at other times. He said that
he could not remember dates and t~at he had reported the
problems "probably on numerous occasions" He agreed that he
had reported them both before and after the Bentley's inci-
dent and that it was possible that he had not put any of his
complaints in writing It was put to him that Supt. Brunton
would testify that he received no written complaints. Asked
whether that was possible, he replied "no" .and said that he
had put a complaint in writing about Mr. Williams' connnents
about burnt food or something like that He agreed that he
had complained verbally about Mr Williams, and said he had
done so to Supt. Brunton, to Mr McAlpine, to union members
Dave Parsons and Bruce Smeets and others, before and after
April 26, 1991 He described his complaints about Mr. wil-
liams as being about "const~n.t harassment". He said that he
provided specific information as to what had happened and
that he did report "the racial connnents".
When asked in cross-examination why he did not report
problems of,. racial discrimination to Supt. Brunton, the grie-
vor rePlied that he may have mentioned racial discrimination
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"verbally, just not in wri,ting" because "it's pretty embar-
rassing verbally--do I have to state it in ,paper?" When it
was put to him that he did n0t put the issue of racial dis-
crimination in writing, he replied "yes, it's embarrassing, I
don't have any problems with others". When asked if he re-
called mentioning the racial undertones in the notes he be-
lieved he wrote, he replied "possibly not". ,He testif ied
that he referred to a previous incldent in his report regard-
ing ~entley's (Ex. 12) He did not agree that the profanity
in Ex. 12 had nothing to do with race or place oL.origin ._, He_ __.~__ _
agreed that he expected Mr. Brunton to take some action as a
result of his report (Ex. 12), and that Supt. Brunton would
have no idea that racial discrimination had taken place
- -_._-
-
. 14
~j
based on what was in the report He said he did not submit
Ex 12 on the subject of racial discrimination, and tl)at his
other written reports possibly may not have mentioned racial
discrimination. He said that he verbally reported racial
problems He agreed that he did not find it embarrassing to
report racial discrimination verbally to Mr. Brunton, on a
one-to-one basis. When asked why one and not the other was
embarrassing he replied "what you put in writing, it will
stick to it". He said that he wanted to take care of this
without problems for him or anyone else at the Stratford
Jail. He said that at that time he had faith in management,
because at that time management said to him Mr. Williams
would be dealt with severely. He said that that statement
had been made to him on a one-to-one basis in the absence of
any witness. He did not dispute the suggestion that in part,
he did not want to 'commit himself to writing because he did
not want to be stuck with what he said. He agreed that he
did not want to be limited to his words in a written state-
ment, and said that he did not want to get into any more
trouble than he was already in. He agreed that he reported
verbal lashings and personality conflict. When asked which
was more important; racial discrimination or harassment, he
replied that constant harassment and verbally talking about
ethnic background were both important. When it was put to
him that no one yould tell from this report that racial
discrimination had occurred or was occuring, he said that if
they had had asked him, he possibly would have explained it.
He said that he did not expect someone to ask him about it,
because he had al~eady told management about the r~marks
about his ethnic background He acknowledged ~hat he had not
had difficulty committing himself to the kind of report he
had written about Mr. williams, and that Mr. Williams would
"get in trouble" as a result ( He said that he _ did not expect _ _
Mr. Williams to be fired as a result of his report. He
acknowledged that he did not mention racial discrimination
directly "on paper"
'""
15
> ~
The grievor 'testified in cross-examination to "possibly"
having put in other reports. He said that he would have ad-
dressed written reports to Supt. Brunton, but that_Shift Su-
pervisors/ICs would have read them first. When it was put to
him that Supt Brunton would testify that he did not receive
any reports re harassment, he replied "possibly there were
some more" and that he wrote about Mr. Williams having com-
plained about burnt fish and chips. He Qisputed the sugges-
tion that Supt. Brunton would say he did not receive a report
about burnt fish and chips.
The grievor testified that he understood that initially
- Supt. Brunton had suspended Mr. Williams for 2 weeks without
p~y, but that after Mr. Williams returned with a iawyer, Mr.
Williams received "a vacation with pay" until he, the grie-
vor, cooled bff about the incident. He said that after he
reported the Bentley's incident, "things got worse" and that
in addition to Mr. Williams, another member of management,
Mr. McKenzie, started to take a dislike to him, as did Supt.
Brunton. He said that he reported that things got wbrse to
the Union, and "maybe" once or twice to Supt. Brunton.
In cross-examination, the grievor agreed that he felt
Mr. williams would stand in the way of his career with the
Ministry. He pointed to the Appraisal qpdates dated October
--- -- -
29, 1989 and March 18, 1991 (Ex. 14 & 15) as indicators in
addition to Mr Williams' oral remarks He agreed with the
suggestion that Ex. 14 and 15 were not appraisals, but just
forms filled out by Shift Supervisors, and that they are like
Ex. 11 He agreed that Ex. 14 and 15 are addressed to Shift
Supervisors or IC's (in-charge) and sent by Mr. J. MacAlpine.
He agreed that Mr. McAlpine would "do the official form" with
him He testified that in his view Mr. williams used the
forms/Appraisal Updates to interfere with his career, as un-
---~ --- - - -----. der "suitability for position--full time correctional offi-
cer" Mr. Williams had written "not applicable--thank good-
ness" on both Updates The grievor did not agree that N.A.
was entered because he was not an unclassified C O. He said
--
j --
S;
-
16
;:-,
that it was known that he had taken a test for an entry CO
position and pointed out Mr williams' comments "fails to
adequately supervise or understand the necessity for strict
supervision of inmates" under Item 9 "suitabiliiy for posi-
tion" He said that aside from Mr. Williams' comments on
Ex. 14 and, 15 and his threats to stand in his way, he was not
aware of anything else from Mr. Williams that indicated that
Mr. Williams would stand in the way of his career. He said
that he would not know whether Mr. Williams had had no influ-
ence on the decision to lay him off. He acknowledged'that he
had no knowledge that Mr. Williams influenced the outcome of
the competition and said that Mr. Williams had made his (in-
tentions clear, whether the grievor continued in food service
or wanted a CO position. He agreed that he had no knowledge
that Mr. Williams had influenced the recall of Ms. Huitema.
On Janua~y 3, 1995, Supt. Brunton said that there are 5
Shift Supervisors at Stratford Jail who report to him. Shift
Supervisors work rotating shifts on a 5-week schedule, and
are responsible for the care and control of inmates,supervi-
sion and appraisals of staff, can do scheduling and be invol-
ved in hiring, and can be Acting Superintendent. During the
period of the closure, Mr Williams was assigned to train
staff in First Aid and WHMIS at Regional Office. Supt. Brun-
ton acknowledged that he was aware of the difficulties be-
tween Mr. Williams and the grievor. He said that due to the
serious nature of the Bentley's incident, Rick Rankin, then
Regional Training Advisor, Western Region, of the Ministry of
Correctional Service, at his invitation carried out an inves-
tigation which confirmed that Mr. Williams had verbally
and physically assaulted the grievor. Supt. Brunton said
that he "was left to determine the penalty". He said that
his "initial feelings were toward dismissal ", but that that
was tempered on advice from Regional Office, and that he con-__
sidered a 20-day suspension without pay He said that at a
disciplinary meeting with Mr. McKie of Human Resources and
Mr. Williams and his lawyer "extenuatinq circumstances were
.-
'~ 17
~
argued on behalf of" Mr williams, and Mr williams "agreed
to a referral for an assessment of -an illness and a letter
w~s placed on his file". He said that the illness was alco-
holism. When asked whether Mr. Williams received time off
without pay, Supt. Brunton replied "he may have" and said
that there "may have been" a period of time pending the in-
vestigation that Mr. Williams was off without pay. He said
that the two CDs who were with the grievor in Ben~ley's -had
submitted reports on the incident, and that suspension pen-
ding investigation is normal for the Ministry in serious
matters
Supt. Brunton was shown Mr. ChJrcop's report (Ex. 12)
and asked whether he was aware that Mr. Williams had made any
racial or disparaging remarks to the grievor. He replied
-"not about this incident". with respect to his awareness of
Mr. Williams "raqial" remarks to the grievor in other inci-
dents, he said that he had heard that Mr. Williams had "made
remarks in that manner", that he could have heard it from any
of a number of people, that Mr. Williams' behaviour was well
known in the Jail, and. that he was among those to whom it was
well known.
Supt. Brunton testified, that the Bentley's incident oc-
curred before the institution of the Wo~kplace Discrimination
and Harassment Policy. He said that he requested reports
from staff about Mr. Williams' behaviour and that he told Mr.
Williams that he would not tolerate it. He said that Mr
Williams "denied it, of course". He said that he had warned
Mr Williams that he would proceed if he received ~ny written
documentation~ He said "at one point I-sent a letter to the
entire staff re racial remarks and inappropriate comments in
--- the workplace". He requested a report from those who repor-
ted Mr. Williams' behaviour to him, and Mr. Parsons' report
was the only- one he received.- He said that a. written report _
gives him firm evidence upon which to proceed for discipline
purposes, and that verbal reports are not sufficient. He
said that h~ had not ordered anyone to write a report because
.'~._'.._"-_._-_. -~..-.,.--- ---
S'
. 18
5-
due to the element of coercion, "it wouldn't be a dependable
position" .
Supt. Brunton acknowledged having hea~d a number of ver-
bal reports regarding Mr. Williams. When asked whether he
thought anything had to be done, he replied that he had done
what he could by speaking to Mr. Williams, at which time he
met with resistance and denial, which, he said, was in keep-
ing with alcoholism. He said that he told the Shift Supervi-
sors to advise him if Mr. Williams came in to relieve them
smelling of alcohol, and that none did. He said that he knew
that some Shift Supervisors and staff had spoken to Mr. wil-
liams about his alcoholism. He said that although he dropped
in to the Jail during off hours hoping to be the one to find
Mr. Williams "under the influence" while at work, he had not
witnessed him in that state. When asked whether he had wit-
nessed Mr. Williams make racial comments to staff, he said
that on one or two occasions he had heard him "make comments
on the borderline of inappropriate" and that he had told him
to "watch" that, that his remarks were not acceptable He
said that Mr. Williams had accused him of harassment and pre-
judice against British people on a number of occasions. He
said that he received no formal complaints regarding Mr
williams after the Bentley's incident and told ~im that there
--- -
had b~tter not be any reprisals after the discipline.
Supt. Brunton said that verbal complaints about Mr. wil-
liams' "still came up" after the Bentley's incident. He said
that after the Bentley's incident, Mr. williams alleged to
him that Mr. Chircop was representing himself as a peace
officer and that "it was not an issue for" him. He said that
that was what the Bentley's incident had been about. He ac-
knowledged that Mr. Williams remarked to him about the grie-
vor's cooking from time to time, and said that he checked his
~,. -- ._. .-- cominents with other staff and inmates and found "no real com- .-"
plaint" . He said that in his eyes, Mr Williams' credibility
I
regarding the grievor was very low.
~
19
~
When qsked whether staff viewed Mr. Williams' and the
grievor's relationship with one another as a feud, Supt
Brunton replied that he thought it was totally unjustified,
and that he didn't think the grievor was doing things that
deserved the attention he received from Mr Williams He
said that the grievor may have had a beard at 5:30 a.m some
mornings, but that he .did not see that being as important as
Mr. Williams had presented it to him. He agreed that Shift
S~pervisor McAlpine took the grievor's side prominently and
complained to him about Mr. Williams' treatment of the grie-
vor. He said that he had met with Mr. McAlpine in late 1990
or early 1991, prior to_9ctober 1991 when another incident
with another staff person occurred. He said that Mr. McAl-
pine was not the grievor's immediate supervisor, but that Mr.
McAlpine was responsible for the preparation of the grievor's
performance appraisal. He said that he could not recall whe-
ther that responsibility had been removed from Mr. McAlpine
and added that changes as to which Shift Supervisor appraised
which staff had occurred. He said that at one point Mr. wil-
liams had been the Institutional Training Officer, that he
had made Mr. Williams responsible for the training of all un-
classified and probationary staff, and that Mr. Williams had
monitored their performance through the initial period of em-
---- - -- ----- --
ployment
Supt. Brunton acknowledged that he had indicated that he
had felt unable to take any action against Mr Williams with
regard to his alcoholism and abuse of employees. He said
that h~ had nothing concrete, no written reports, dates,
times, places. He agreed that he had verbal reports from
late 1990 from Mr. McAlpine and others which included how Mr.
Williams treated the grievo~. He said that in his discus-
sions with Mr. wiliams he had probably said "back off of Ma.-
- rio". ___He disagreed..that. Mr McAlpine had described Mr. Wil-
liams as "riding the grievor" and said he had not heard the
concerns expressed in that language. He said that Mr McAI-
ine thought Mr. Williams was not treating the grievor "fair-
- - -.-..--.- - .--
-----.----
~
20
-
ly", that he was treating him "specially" He said that he
did not recall anything about racial epithets He then said
"it was throughout the jail" and that it was "a sick environ-
ment"" . He said that it was a "poisoneq. work environment"
He said that he s~nt out letters. He said that he saw some-
thing on the Bulletin Board about "wops" which he immediately
wrote down but was unable to identify the source. He agreed
that he had a sense by then that Mr. Williams was making
racist, bigoted comments. He did not agree that Mr. Williams
was the worst source of such comments. He said that some
staff were unaware that they were doing it and that he wanted
to dra~ it to their attention. He said that this occurred
before the summer of 1991.
Supt. Brunton said in cross-examination that there was
no way to proceed without cold, hard evidence in writing
until the Workplace Discrimination and Harassment Programme
was implemented, which he said, permits staff to complain to
someone outside the institution. He said that he had had a
number of discussions with Mr. Williams regarding his bigot--
ry, and that they started probably toward the middle of 1990,
when he, Supt. Brunton, had been there about 6 months and had
started to notice thing$. He agreed that in the middle qf
1990, he knew that the grievor was one of Mr. Williams'
- -
victims.
Supt~ Brunton acknowledged that he had received a report
from Dave Parsons about Mr. Williams' drinking. He testified
that because Mr. Williams had been off duty, and his impres-
sion was that he had~not been falling down drunk, that he had
smelled of a<lcohol, he had counselled Mr. Williams following
Mr. Parsons' report and had not written a letter of counsel.
He said that Mr. Parsons made his report prior to the Bent-
ley's incident. He said that he felt that professional coun-
--- selling was in order as a result of the Bentley's incident.
He agreed that his only discipline had been a letter of coun-
sel, and added "and a referral to alcoholism assessment". He
said that he did not know whether Mr. williams completed any
.!:"
21
-
kind of alcohol addiction programme, that Mr. Williams subse-
quently"" grieved the letter of counsel, and that the letter
and all reference to discipline was removed from Mr. wil-
liams' file. He saiq that due to the removal of the discip~
line, there could be no follow-up regarding the referral for
assessment He said that if the disciplinary letter had not
been removed, he could have suspended Mr. Williams without
pay if he had not complied with the assessment. He said that
there was a Gentlemen's Agreement that Mr. Williams would
follow through "with treatment. When asked whether he would
'agree that a Gentleman's Agreement wasn't the best way of
dealing with the matter, he replied that.personally, he would
not have dealt with it in tQat manner. Supt. Brunton later
acknowledged that Mr Williams' lawyer had threatened a law-
suit prior to the removal of the letter of counsel. He said
that to ~ollow up, he could "just watch him". He agreed that
Mr. Williams is still employed at the jail today. When asked
whether anything was done to ensure that he no longer super-
vised the grievor, Supt. Brunton said that he did not know.
He said that Mr. Williams would not be appraising Mr. Chircop
and that, if Mr Williams had submitted an appraisal, it
\
"would not be weighed heavily". He said that contact between
them at shift changes could not be avoided. He agreed that
- ~ -- - --
Mr. Williams was maintained in his scheduled rotation, conti-
nued to have supervisory duties regarding the grievor, and
added that Mr Williams had no authority. He acknowledged
that he haq beem in charge of scheduling, and said that he
could not keep Mr Williams off the grievor's weekend. He
agreed there was only one Shift Supervisor per shift, and
said that ~t would have been difficult to keep Mr. Williams'
off the grievor's shifts.
David Parsons was a C02 at the Stratford Jail while the
grievor was there.- He. began his employment there on ApriL. 7., --.,.--
1980 and was Chief Union Steward from 1989 to September/Octo-
ber 1990, and from June 91 forward, during the time relevant
to this qrievance. He testified in cross-examination, that he
-'----.,---- ---- _.~-------------,._-
!
22
s
had been an Acting Shift Supt. from October, 1990 to June,
1991 He said 1;.hat he worked with Mr williams and observed
his and the grievo~'s interaction on many occasions. He des-
cribed their relationship as "very poori. and said "Mr. wil-
liams did not like Mario". He said that he had heard Mr.
williams make very critical comments on the grievor's cook-
ing, e g that it was burnt, overdone, and had heard "many"
such comments before the incident at Bentley's tavern in the
spring of 1991, and "some" comments after. He said that he
had heard Mr. Williams call the grievor a "short little
!3awed-off fuck wop", sometimes in the grievor's presence, and
most of the staff in the jail, including bargaining unit and
non-bargaining unit staff, had heard Mr. Williams' statements
to that effect, before and after the Bentley's incident.
Mr. Parsons testified that the grievor had complained to
him about Mr. Williams' treatment of him. When asked whether
the grievor mentioned the ethnic comments to him, he replied
,i I would say yes, in conversation" From this the panel un-
derstood Mr. Parsons to mean that he understood, from the
grievor's complaints, that some of the comments to which the
grievor objected were about his ethnicity.
Mr. Parsons testified in cross-examination that there
had been more comments from Mr. Williams which were critical
of the grievor before the Bentley's incident. He said that -_._~
every time the grievor was on Mr. Williams' shift, Mr. wil-
liams "said something". He said that "many times" he saw Mr.
williams enter the institution "under the influence" for work
shifts, as well as in civilian clothing to do the odd busi-
ness for which he had attended the Jail. He said that he
observed Mr. Williams in that condition "closer to 3 times a
week than once a month" and that he 'knew that Mr. williams
had been drinking from the smell on his breath. He said that
-~ on those occasions Mr. Williams' attitude toward staff and~__ _ ____
inmates was "braver" and that "many issues in his conversa-
tion made no sense", were unnecessary, and had nothing to do
with the shift. He said that rude comments to a staff member
-------
-
t, 23
who was not deserving of them were an example of such beha-
viour. He said that Mr Williams "had to be relieved by a
management staff".
Mr. Parsons testified in cross-examination that he had
experienced rude comments "many times" from Mr. williams
while Mr. Williams was "under the influence", and that Mr.
Williams had directed such comments at "a good portion" of
the other staff members. He agreed that Mr. Williams used
"expletives or foul language" and said "demeaning or insul-
ting" things to him. He said that he was the type of person
who just brushes them off. H~ agreed that Mr. Williams had
said unfairly critical things about his work as a co. He did
not aqreethat the kinds of comments or insults Mr. Williams
directed toward him were the same kind as those Mr. Williams
directed at the grievor. He said that Mr. Williams' comments
and insults toward the grievor had been continuous, drunk or
sober.
Mr. Parsons indicated in cross-examination that he did
not relieve Mr. Williams while he, Mr. Parsons, had been an
Acting Shift Supervisor. He said that he had talked to Mr.
~ williams many times regarding his being "under the influence"
and that he might have been the only staff member who approa-
ched Mr. Williams about it. He said that to his. knowledge no
-
one else had done so. He said that neither he nor anyone
else approached the Superintendent to approach Mr. Williams
"about this problem". He said that the Superintendent was
aware of it "through Mr. McKenzie" because of an altercation
which had taken place before the Bentley's incident. He said
that when Mr. Williams had entered the Jail in civilian clo-
thing "under the influence", at Mr. McKepzie's and the Super-
intendent's request he wrote a report substantiating Mr. wil-
liams' condition, but had not mentioned in it the frequency
~"",'_._u__ _ ~_._______ with- which -Mr. Williams came in to the Jail "in that condi-
tion" in the belief that it was not required.
Mr. Parsons said in cross-examination that he had not
-- reported Mr. Williams to the Superintendent at any other
(
I
I
--. - - .- -..-- ----- --. -
-!
24
~
time, that this was the only occasion when he personally de-
tected alcohol on Mr Williams' breath when he was relieving
him, and that other staff had detected it on the other occa-
sions to which he had refer~ed. He was unable to recall Mr.
Williams coming into the institution in civilian clothes
while not intoxicated. When asked whether he could say what
steps he would have taken if Mr. Williams had come in inebri-
ated when he was an Acting Shift Supervisor, he said that he
did not know what he would have done, in view of all the
years. He was unable to recall/whether he had reported Mr.
Williams having been inebriated more than once and while he
- had been an Acting Shift Supervisor. He said that the sig-
nificance of Mr. Williams' being inebriated at work, not in
civilian clothing, was that "there are steps th(it can be ta-
ken" . He agreed that Mr. Williams' being inebriated at work
"-
would have an effect on institutional -security, a detrimen-
tal effect on control and supervision of staff, on morale,
and on security and that in light of those effects, it would
be a serious incident, and should not be overlooked. He said
that if a CO's ability is impaired, he is not doing his job,
and to him it is a serious issue. He said that he was not
speaking of Mr. Williams, but was referring to other supervi~
sors. He said that he had been in corrections for 15 years
--- ----.~-
and that alcohol on duty has been a problem. He said that he
was pretty sure staff would be reluctant to report others
\ coming to work "under the influence" to the Superintendent.
He said that he could not explain their reluctance, but that
he had not reported all such incidents because the onus is
"\
not on the staff to worry about things' .like that, especially
when it is being overlooked by management. He said that he
didn't know whether anyone else reported Mr. Williams' condi--
tion or had questioned Mr williams, but that 99% of the
~_._. ~ ~_._--- ___ staff, including management, knew Mr. Williams' cond~tion
He agreed that between October, 1989 and June, 1990, when he
had been Chief Union Steward, he had observed Mr. Williams
:!.:
~ 25
"under the influence" and that he had not reported it at any
time. )
Mr Parsons later said that there was a concern about
reprisals for reporting fellow staff. He was unable to
specify what form such reprisals might take~ but said they
would not result in physical danger to him. He agreed that
they might affect his career, as it would not be helpful to
have on hi~ record that he had reported a colleague He then
said that if he had reported Mr. Williams coming in inebriat-
ed, h~ would not ever have had a problem with reprisals. He
said that he had experienced no reprisals from having report-
ed Mr. Willi~s on the one occasion to which he had referred.
He said that Mr. Williams was an example of how management
and staff are dealt with differently. He said that nothing
was being done about Mr. Williams by his peers, -and that it
was "as obvious as the nose on your face". He agreed that no
CO had been throw~ out the door as a result of Mr. Williams.
ii) Supt. Brunton
a) General Relationship f
The grievor said that he imagined his relationship with
-- - -
Supt. Brunton had been "ok". He agreed that he had clashed
with Supt. Brunton on two occasions. In cross-examination he
/"
acknowledged that his relationship with Supt. Brunton was ge-
(
nerally "ok" while he had been -employed at the Jail. He said
that when Supt. Brunton took over the jail and th~reafter,
Supt. Brunton said to him that he, the grievor, could trust
him, and that he, Supt. Brunton, would help him.
b) The Christmas. 91 Report
-- -,- -- -,-,-- -~.._-_.- ~----,~--- -- .~._-~ -- .---- --
The grievor said that he had been scheduled to work a
12-hour shift on Christmas Day of 1991. He said that he pre-
pared the breakfast and that it was' ready to serve at about 6
-~-----_.._--_."-~ -~---~.~-- --_._~
~
~ 26
or 6:30 a.m He declined the usual help of the irtmates that
morning and asked the C02 to get permission to let the in-
mates sleep in until 10 to 10:30 am, which was granted, and
the officers assisted him in serving the inmates later. He
said that he subsequently received a letter from Supt. Brun-
ton (Ex. 13a) saying that he wanted a report concerning staf-
fing irregularities
The letter states in pa~t:
On December 25, 1991 you were on duty for the 0600
to 1800 hour shift. It has come to my attention
that irregularities occurred with regard to staff
activities that day which constitute a breach of
the institution's security.
In an effort to deal with these reports I would
appreciate if you could supply me with a written
report as to your activities during the shift and
any difficulties you enco4ntered performing your
d\:!,ties.
The grievor's January 3/92 reply Memo (Ex 13b) states:
Mario Chircop & Krista Burdick of the Stratford
Jail We worked in the kitchen.area we served
breakfast together. 11M's kitchen workers slept
until 10:30 AM. The day went very smooth for me
and staff, every body did their duties to the best
of our knolige! (sic)
The grievor testified that there were no irregularities
in the kitchen that day. He said that Supt. Brunton called
him in to his office after receiving his memo, and told him
that his report was not what he had been looking for, was not
"-
the report he had requested. He said that there had been a
rumour that staff had been playing Monopoly in a vacant cor-
ridor in the inmate area, and that at the time that Supt.
Brunton called him in to his office, he had not heard it. He
said that he told Supt. Brunton that he didn't understand
what he wanted and that he had stated what had happened on
Christmas day in his report and asked him what sort of re-
---- ._. .--.-.--.-- - -- ~.~ .- - --. --
port he wanted He said that Supt. Brunton told him he want-
ed a report on an institutional breach, horseplay. He said
that he got angry and wrote Supt. Brunton a note stating
!
!. 2,7
"this is it" and told him that he didn't know what he was
talking about,. He said that Supt. Brunton "got pretty mad"
and while walkipg out, said that he, the grievor, would reg-
ret this and would pay for it.
In cross-examination, the grievor testified that when he
received Supt. Brunton's letter (Ex. 13a), he did not have
any sense of what irregularities he had been referring to.
He said tpat he did not request any clarification. He said
that he had not witnessed tbe monopoly game, and that Supt.
Brunton told him, wh~n he met with him, that he wanted parti-
culars and names of staff, as opposed to inmates, involved.
He said that he could not remember whether Supt. Brunton had
mentioned ~he game "Monopoly". He said that Supt. Brunton
,
did not mention what the "institutional breach" was, that all
Supt. Brunton said was "what is on this paper?". He said
that the Superintendent was asking him whether the staff had
been on guard or had been entertaining themselves. When it
was put to him that Supt. Brunton would deny saying that he
would regret this and that he would pay for it, the grievor
maintained that Supt. Brunton had said that to him as he was
walking out. He agreed he had taken it as a very strong
threat that something would definitely happen to him in the
near future. He agreed that Supt. Brunton did not comment
-~~-- ~-
about his race or ethnic origin. He said that following the
meeting, things started getting worse and that he experienced
more harassment. Wh~n asked whether he received any disci-
pline for what happened at his meeting with Supt. Brunton, he
said "probably not at that same day, but in 'future". He then
testified that Ms. Huitema had been called back in order to
discipline him. He said he had no idea what is on his file.
It was drawn to the grievor's attention that although
the meeting with Supt Brunton occurred in January of 1992,
Supt. Brunton sent him a letter in March of 1992 advising him
that he would be recalled. He was asked why Supt. Brunton
would have done so if he had said the grievor would regret
----,-his condl1("t, The, 'Jrie~~Q,r._ r:.~rJj ~(L!_h",!~hl"> C]111">!'lH on reflecten
-!..
28
-
how Supt. Brunton viewed the matter, and said that Supt
Brunton wrote to him twice, once about a "temporary assign-
ment" that he, the grievor "never had". He said that he had
"no idea" why Supt Brunton would write a letter advising him
of an intention to recall him, when he had allegedly threat-
ened to "get" him and that all he knew was that it had hap-
I pened. He said he did not \know whether other Food Services
Officers and COs received the March 31, 1992 letter. He said
that Supt. Brunton had said that he was backfilling the posi-
, )
tion, and that he had the unclassified position, and had been
in competition with Miss Calder. He did not agree that if
Supt. Brunton intended to follow through with his threat, he
could have laid him off rather than indicate he would be re-
called. He said that the Superintendent was trying to get
him to trust him, and that he put his faith in him and be-
lieved that he would be recalled. In re-examination, the
grievor reviewed his Appointments from June of 1989 to July
31, 1992 and said that aside from the problems he had had to
which he had testified, he had no reason to believe his Ap-
pointment would not be renewed, and that-he trusted Supt I
Brunton He said that all the staff knew the way Mr. wil-
liams treated him, and his comments about Italians and about
his, the grievor's, Libyan birthplace. He said that aside
from his specific verbal complaints to Mr. Brunton, manage-;
ment would have known what was going on, as he had told the
uniQn, and all staff knew it, on a daily basis.
Supt. Brunton testified that the "irregularities" he had
referred to in his memo (Ex 13) resulted from night Shift
Supervisor McKenzie having reported to him that on Christmas
Day dayshift staff spent time playing Monopoly in an unoccu-
pied corridor rather than supervising inmates. He said that
he requested reports from all officers on duty, that he un-
- derstood that the grievor hadn't been involved in any _wrong::_______ ------
doing, but that he had had a problem getting out of the kit-
chen because one of the staff had the key. He said that
- .. - -- ----
29
~
after he requested reports, one or two of the staff "came
clean", and letters of counsel were placed on their file.
He said that he met with the grievor because he already had
the other reports indicating that "the incident" had happen-
ed., He acknowledged baving told the grievor either that his
report didn't suffice or that he felt it didn't suffice. He
said that he told him "basically if he was aware of any-
thing, he should report it, with a warning that covering up
or not reporting incidents of this nature was a serious ac-
tiop" . He said that the grievor told him that what was in
the report was all he was aware of. He said that he was also
concerned wi~h the quality of the grievor's report. He said
that the Ministry expects more detail from COs, but 'that the
grievor had not received any training When asked whether he
had explained his suspicions to the grievor or told him what
,;~:' the other reports had said, he said that he explained that he
was reasonably convinced this had gone on, and that he won-
dered why the grievor hadn't reported it or noticed it. He
denied having said to the grievor that he would regret this
or that he would pay for it. He said that nothing was placed
on the grievor's employment file, and no disciplinary action
was taken against the grievor as a result of this matter. He
later said that their meeting had not affected his view of
~---
the grievor as an employee He added "although I don't ac-
cept it, I have an understanding of the reluctance to report
things of that nature"
-----
c) Missing Roast Beef
-
The grievor testified that in the winter of 1992 the
office had been set up in a trailer in the main parking lot.
He testified that Head Chef Pat Fournier accused him of hav-
__or __. _~ ___ _.'__. ing taken the half of a, roast of beef that was missing, and
that Mr. Fournier had said that they were having a meeting
with Supt Brunton about inventory, duties, and regular
items H~ said that he attended the meeting and that they
_..u..__
~
30
started discussing work and then the subject of half a roast
of beef that was missing "appears" He said that there had
been no formal investigation and that he had not been d.tsci-
plined about this matter He denied that he felt that Supt.
Brunton s~spected him, and said that Supt. Brunton "was just
going on the information Mr. Fournier had given him". He
\
then said "I had no idea, I thought it was just a regular
meeting or I would've had a union rep with me".
In cross-examination, the grievor did not disput~ that
his meeting with Supt. Brunton regarding the half side of
beef occurred around the same time as the meeting regarding
the report re Christmas Day, 1991. He said that both Supt.
B:J,:'unton and Mr. Fournier had made the allegation, and that he
saw the allegation not as discriminaion, but as "another form
of harassment". When advised that Supt. Brunton would testi-
fy that there were no allegations re missing beef at that or
any other time, and asked whether it was possible that he,
the grievor,- was confused, the grievor replied "no". Heac-
knowledged t~at he had not received any discipline regarding
the missing beef. He then said that he "got it" from Mr.
Fournier. He said that Mr Fournier constantly harassed him,
"bashing over the head", and that Mr Fournier wrote in the
day book that he was recommending that his contract not be
renewed. He. said that the staff joked about the missing beef
after the meeting, because someone leaving the institution
with half a side of beef was so impossible, and acknowledged
that management-never raised it again. (
supt. Brunton testified that he called a meeting in the
winter of 1992 as .a result of Mr Fournier's complaints that
the grievor wasn't g~tting the appropriat~ number of portions
from the beef, that he was possibly stealing it, and that he
was insolent and uncooperative and very difficult to work
'--- m_..,..____ with. He said that the grievor presented his position and
that it appeared quite reasonable He said that he viewed
Mr. Fournier's comments in the kitchen log, which the grievor
brou ht him and that. the comments were "ina propriate" and
----- - - -, - -- "--
!. \
,
31
"sniping". He said that he was satisfied that the problem
wtth the beef arose from its quality and shrinkage rather
than theft, and that he told the grievor and Mr. Fournier
that they did not have to love one another, but that they did
have to work professionally together. He said that no coun-
selling or discipline arose from the meeting and his view of
the' grievor as an employee was not affected by' the meeting
iii) Shift Supervisor McKenzie
The grievor testified that after he reported the Bent-
ley's incident, "things got worse" and that in addition to
Mr. Williams, another member of management, Mr. McKenzie,
started to take a dislike to him.
Supt. Brunton agreed in cross-examination that John Mc-
Kenzie was one of the four Shift Supervisors on staff in
March, 1992, and that Mr. McKenzie was, on fairly friendly
terms with Mr. Williams. He agreed that Mr. McK~nzie and Mr.
Williams would go to Bentley's together "from time to time",
and that on one or two occasions, he and other Shift Supervi-
sors and staff' would go to Bentley's for a beer. He did not
dispute that bargaining unit members on occasion did n9t w~nt
to go to Bentley's because it was a known management hangout.
When asked whether Mr. Williams and Mr McKenzie went to
Bentley's a little more often than others, he said that Bent-
ley's was referred- to as Mr. Willi~s' "recreation centre" or
his "other office", and that Mr. Williams would be at Bent-
ley's when he and other Shift Supervisors went there, and
that Mr. McKenzie and Ms. Schellenburger were at Bentley's
equally frequently with, Mr. Williams. Supt. Brunton later
testified that he was not aware that there was "a bit of a
problem between Mr. McKenzie and the grievor". He said that
Mr. McKenzie_ "hadn't made as much of Mr. Chircop as Mr. Wil- - .-- .-
J,iams had". He denied that he would suppose from Mr. McKen-
zie's relationship with Mr. williams that Mr. McKenzie he,ld
attitudes critical toward the grievor. When it was sug-
--- -- _._. ,__." .._ _'U __" -- '- -
~
32
~
gested to him that Mr. McKenzie certainly had complaints
about the grievor, Supt. Brunton replied "nothing major that
I recall". He then said "he may have".
Mr. Parsons testified that Mr. Jim McKenzie was the only
other non-bargaining unit staff who would have anything ad-
verse to say about the grievor, and that Mr. McKenzie had
don,e so "in memo form". He was unable to specify when that
had occurred. In cross-examination he testified "it was
sometimes an open .policy to read those memos" and that the
Superintendent had shown him the memo. When asked under what
circumstances the Superintendent had shown him memos', he
replied that Mr ___ MacAlpine, another Shift Supervisor, had
written adverse memos about him, and that they were shown to
him openly. He agreed that those memos concerned him and his
performance, and observed that there was probably no hesita-
tion re disposing of the memos, too. He agreed that Supt.
Brunton also showed him Mr. McKenzie's memore the grievor.
Mr. Parsons had been an Acting Shift Supervisor at the time.
D. The Competition:
The grievor t.estified that he -had worked part-time for 8
years at Samuel's restaurant as a bar manager and kitchen as-
sistant, where had done some cooking, before receiving his
first Appointment as Cook 2 at the Jail in June, 1989 He
said that he had also been employed for 2 summers as a short
order cook at The Church Restaurant and had received some
\ .\,
training there- in French cuisine, in anticipation of taking a
formal course as a Chef, which he did not ultimately pursue.
He said that he applied for the position of RPT Cook posted
in about March of 1992 and that he was not told that the com-
petition would also deal with the position of unclassified
_ _ cook '__ He_ said that he attended the interview unaware that it
would be used to fill the unclassified position and unaware
that he would not be recalled to the unclassified position
He said that that lack of awareness affected his approach to
-
33
-
the interview, in that he did not prepare himself. When
\
asked to explain what that meant, he replied "if I wasn't
successful for the RPT position, I would still have my un-
classified one, as I hadn't quit" The panel concludes that
he meant that he approached the interview with no prepara~
tion, hoping for the best in the competition, but not parti-
cularly concerned, because he understood he had an unclassi-
fied position regardless of the outcome. When asked whether
he would have acted any differently if he had known this was
a competition for his own job, he replied that he "would pro-
bably have studied a little harder". He did not expand on
that statement. -
with ,respect to the competition, Supt. Brunton testified
on January 4, 1995 that the advertisement of the classified
j!
position of Food Services Officer (Ex. 16) was placed in the
Stratford Beacon Herald. In cross-examination, he said that
the, Regular Part-Time position was advertised 14 days prior
to March 13, 1992 He said on January 4, 1995 that they nee-
ded to post the vacancy because Mrs. Lowe, the regular Part-
Time classified Cook, who had worked 32 hours a week, was on
Long Term Disability Benefits and would not be returning. He
said that he knew that Mrs. Lowe was not returning in late
1991 or early 1992 and that the position was advertised ,in a
local paper b~cause the Minis~ry's policy at that time was to
remove barriers to the public becoming civil servants and h~
thought there would be a suitable candidate pool within the
Stratford area
Supt. Brunton identified the Competition Report Form
(Ex. 17) . He said that the Panel was composed of Frank Hill,
the Bluewater Food Services Manager, for his expertise, and
Shift Supervisor John McKenzie, and him, as chair. He said
that Mr. Persad, the successful applicant, was then involved
in large volume cooking at the Stratford Hospital_ and that___ _ __ --, ,-
his average score was the highest of all the candidates. He
said that Ms. Huitema ranked second owing to her performance
on the competition "including a file search".
-. . ~...- ,--
--
-
!' 34
Supt. Brunton said on January 4, 1995 that he used the
results of the competition to determine who would get the
unclassified position. He said that the competition was fair
and relevant and a fair test of people's knowledge and abili-
,ty. He said that in making his decision, his recall letter
to the grievor was certainly on his mind, that it was not an
easy decision to make, and that the position just no longer
was there. He said that within 3 to 4 months of December,
1992, Ms. Htiitema went on maternity leave and that the Jail
had taken the grievor back on a Go-Temp contract. He said
that the grievor was no longer working at the Stratford Jail.
Supt. Brunton agreed in cross-examination on January 4,
1995 that the RPT Food Services Officer position advertised
in March of 1992 was left vacant when Mrs. Lowe left on long-
term disability benefits. He said that in April, 1990 the
kitchen staff complement was 1 classified cook, Mr. Fournier,
1 regular part-time cook, Mrs. Lowe, and one unclassified
cook, the grievor. He agreed that the grievor worked along-
side Mrs. Lowe for a year be~ore she became disabled Ms.
I
Huitema began her employment in December of 1990 under the
name of Ische.
Initially Supt. Brunton maintained that the 9rievor had
been backfilling for Mrs. Lowe. In cro~s-examination he said
that the grievor had not been backfilling for Mrs. Lowe, that
he may have used the wrong word in hi~ letter of August 17,
1992 (Ex. 10) and that he did not know any other way to say
it. He acknowledged that it had been clear to him that once
the posted RPT position was filled, one of the two unclassi-
fied positions was in jeopardy. He agreed that no steps had
been taken to inform the grievor that he was in competition
- for his own job He said that his statement "you will be re-
called upon the reopening .... in his letter of March 31, 1992
was more. of a .statement-of-how he.viewed the grievor as an. _.
employee than a promise to give him a job He agreed that he
found the grievor a "valuable employee" He testified that
the qrievor always worked hard and cared about his work, and
E.
~ 35
t~at he had no particular complaints about the grievor's
cooking. .He said that he had never been in an institution
where there weren't complaints about the cooking, and said
that it had more to do with the quality of the materials than
(
the cooking.
He agreed in cross-examination that before he wrote the
letter of, March, 31, 1992 (Ex. 3), he knew that the grievor
might not be recalled because he might not come in first or
second in the competition. He acknowledged that he did not
think it important to state in his letter. He agreed that he
hQped that the grievor or Ms Huitema would stand first in
the competition, and that he would not have to go back on
something he had said in his letter (Ex. 3) . He agreed he
was surprised when Mr. persad applied and won and that had
\
created the problem. He said that when he wrote Ex. 3, he
was dealing with a 12-week period and that the grievqr would
have been recalled had the lay-off ended at the end of 12
weeks. He said that the competition was not scheduled to be
held until the fall, that they could have receivec:!- up to 100
applications, and it would take time tocons~derand short~
list them. He agreed that he advised the grievor by letter
dated August 7, 1992 (Ex. 9} that he had been unsuccessful in
the competition and that in that letter there was no mention
- -- -- --
that his contract was renewed. He said that there was no
mention of his contract because "that wasn't the reality" on
August 7, 1992 He said that as of August 7, 1992, he had
not decided which contract to renew, and had not determined
how he would decide. He acknowledged that he realized at
that point that he had a dilemma, that he had the competition
results, and that he sought the advice of Human Resources.
He -said~ that he felt he had an obligation to both Ms. Huitema
and the grievor. He agreed that he had to check whether he
was obliged to give the grievor the job due to_seniority_ and_ -- -
because he had been backfilling the position. He said that
he understood from Human Resources that seniority was not an
~---_._---~~~--,.-
---
)
!:
~ 36
'!
issue with contracts and that he could make whatever decision
~e liked and that he could renew neither contract.
Supt. Brunton acknowledged in cross-examination that the
grievor was hired in August, 1989, prior to his tenure at the
Jail. He said that he was not aware that the grievor had re-
ceived his initial appointment through a competition. He
said that he looked at the personnel file at the work site,
but not at the corporate file, which is at the Human Resour-
ces offices. He acknowledged that the records of the prior
competitions were "quite likely" on the grievor's personnel
file and that he did not recall looking at them. He acknow-
ledged that he reviewed the grievor's personnel file for the
competition and that that was standard procedure He then
said that basically all the panel would look at was letters
of commendation or discipline, anything major that could af-
fect the competition. When it was suggested to him that Mr.
-McKenzie and Mr. Hill would have reviewed those records, he
replied that he believed he was the only one of the panel who
formally reviewed the personnel files. He added that Mr. Mc-
Kenzie had access to them any day he wishes to look at them)
He agreed that he did not instruct Mr. McKenzie or Mr. Hill
to disregard anything that they had heard about the grievor.
He acknowledged that Mr. Williams' comments regarding the
grievor were probably on his personnel file, and said that he
would put very little weight on them. He said that he would
not look at the grievor's Appraisal Updates (Ex 14 and 15),
and that he looks only at the Performance Appraisal (Ex. 11) .
He said that he did not recall seeing the Appraisal Updates
prior to January 4, 1995, when he was giving evidence.
J Supt. Brunton agreed in cross-examination that he had
had the grievor come back as a G.O Temp after his contract
was not renewed, and said that as far as he was ~oncerned,
-the grievor- was-a--perfectly adequate cook. He said he had
not called any of the competitors who had placed higher in
the competition for the G.O. Temp position because although
they.placed higher" they were not familiar with the opera-
---
-
. 37
tions of the jail He said that the grievor was a more sui-
table choice because of his familiarity with the jail, for a
time-limited contract, and that he also felt an obligation to
him. He said that he had no concern that the grievor was in
any way unable to do the job.
He said in cross-examination that the pan~l interviewed
the sport-listed candidates and that there was no discussion
between the panel members regarding the scoring of the candi-
dates. He acknowledged that all the panel members scored the
grievor at 30 out of 60 for his interview. When asked whe-
ther each of the panel had given Ms. Huitema 45 points out of
60 for the interview, he acknowledged that he and Mr. McKen-_
zie had done so, and said that Mr. Hill's entry was difficult
to read and that it might have been 43. He agreed that he
and Mr. McKenzie had scored Mr. Persad in the 50's for his
interview, and said that each had given him 54 and that Mr.
Hill did not write down his score for Mr. persad's interview.
He agreed that the greatest difference in Ms. Huitema's, Mr.
persad's and the grievor's scores resulted from their inter-
views, adding that his agreement excluded consideration of
the grievor's pe:rsonal development, e.g. courses, etc. He
agreed that there was a. 15 point difference between the grie-
vor and Ms. Huitema and a 25 point difference between the
grievor and Mr persad on their interview scores. He said -- --'--
that the grievor received no credit for courses, and that Ms.
Huitema received 7/9 and Mr. persad 9/9 for courses.
He acknowledged in cross-examination that Ms. Huitema
may have worked as an unclassified cook at Bluewater during
the period the Jail was closed in 1992. He denied involve-
ment in arranging that, and said that it had probably been
done through Pat Fournier, who was working there. .In re-
examination, he said that he did not know "for sure" that Ms.
Hui tema worked at Bluewater during the closure L and that he __._____ __
had not been involved in any decisions made for her.
with respect to the interview questions, Supt. Brunton
advised that one question was about various types of diets
"--_._-------_._--~~----.._. -
~
38
'"
and agreed that food for four kinds of diets are served by
the kitchen. He agreed that another question was about sizes
of servings. He agreed that a candidate would need to pre-
pare for the questions in the interview, and observed that
some questions concerned standard procedure regarding food
preparation, but that pre-interview knowledge and a little
practice of a particular formula was necessary to answer the
question about serving sizes. He agreed that panel member
Mr. McKenzie was given as a re!erence on the grievor's, Ms.
Huitema's and Mr. persad's reference consent forms and did
not dispute that Mr. McKenzie provided the references. He
agreed that after the tabulation of the scores the panel met
to discuss the optcome of the selection process. He said
that Mr. McKenzie did not give him the benefit of his sugges-
tions at that point, and that the meeting was with regard to
where the scores had placed the candidates in relation to one
another, and whether there were or weren't irregularities on
reference checks and on checking the personnel file. He said
"then we nained our choices". He testified that normally the
range of scores "isn't as wide" as it had been in this compe-
tition, and that they checked for irregularity "in those
other areas".
Supt Brunton acknowledged that although Mr. Williams
-- ----~,-_.-
did not discuss the renewal of the grievor's contract in the
formal sense, Mr. Williams told him that he would be happy
when he saw the grievor's rear end going out of the jail. He
said that he had told Mr. Williams that that was' not his
decision to make. He initially could not recall when that
conversation had occurred, then said that it "would have
been" prior to the Bentley's incident, and that Mr. Williams
did not say much about the grievor after the Bentley's inci-
dent. He said that Mr. Williams made comments about the
grievor's cooking abilities both before and after, _the Bent-____ - -----
ley's incident, "moreso before" the incident He observed
that some of the meals in the jail "aren't great" and that
the cooks do not have "the greatest ingredients".
- " ~._- - -- - - -_._- - --- "- -- -
~
.
" 39
When asked whether Mr. Williams had any discussion with
him during the completion of the renovations, Supt Brunton ---
replied that Mr. Williams was not in the jail at the time.
He said that he was not aware of him having discussed any-
thing with the other selection panel members. He said that
Mr. William$ did not know Frank Hill He said that Mr wil-
liams had no influence on the Regular Part-Time Cook competi-
tion or on his decision to lay the grievor off He denied
that Mr. Williams had any iBfluence on his decision to recall
Ms. Huitema as opposed to the grievor, and said that he
"never consulted him at all".
The grievor acknowledged having received Supt. Brunton's
letter dated August 7, 1992 (EX. 9) , indicating he had not
been sucGessful in the competition for the Food Services Of-
ficer RPT position, and his letter dated August 17, 1992 (Ex.
10), around AU9ust 17, 1992. He described Ex. 10 as telling
him that he, wasn't going back to work. He agreed that Ex 10
took him by surprise, and said that it told him that he had
been in a competition for his own job, which he described as
"my casual position". His attention wa~ drawn to the words
"as you are aware" in Ex. 10, and he said that he had not
been aware that his own position was being filled by a compe-
tition.
---.~
2. The Arguments:
A. Overtime:
union Arguments:
There are 3 views to the overtime claim, each of which
results in the grievor having been paid improperly:
View 1. If the grievor worked more than 40 hours
in any given week, he was entitled to_ pay ______
at time-and-a-half for those hours.
View 2. All periods of work exceeding 8 hours are
payable at time-and-a~half [the union at- /'
--"--~ - --
-!-
-.
i
. 40
tributed this view to a plain reading of
Art 34 ( a) ]
View 3. Any hours worked in excess of the regu-
larly scheduled Ex. 6 hours must be paid
at time-and-a-half [the union attributed
this view to Art. 3.4(b)].
View 1 was the employer's view. Ex. 5 indicates that
from Friday, February 21 to Thursday, February 27, 1992, the
grievor worked 43.5 hours and does not indicate that he was
paid overtime for the period in excess of 40 hours. If the
panel was of the view that overtime was payable 'for hours
worked in excess of 40 in any given week, in accordance with _.
View 1, it should so indicate, use the union's example of an
instance in which there has been an underpayment, and leave
the calculation of the underpayments to the parties.
The employer would object to View 2, because the Jail
utilizes a compressed work week and classified staff are not
paid overtime when- they work a 12-hour shift. The greatest
part of th~ overtime cl~imed arose under Art. 3.16 of the
Jan 1/88 to Dec. 31/89 and the January 1/90 to December 30
191 collective agreements. Only the period from January 1 to
April of 1992 fell under the "current agreement", L e. the
January 1/92 to December 31/93 agreement. Under the previous
collective agreement the unclassified staff Gannot enter into
a compressed work week agreement. Altho~gh Art. 7.7 of the
"current agreement", which provides
--
It is understood that other arrangements regarding
hours of work and overtime may be entered into be-
tween the parties on a local or ministry level with
respect to variaple work days or variable work
weeks. The model agreement with respect to com-
pressed work week arrangements is set out below:
. .
applies to the unclassified staff, there is no evidence of
-., -- _._- .,. --_._~--_.- --- ---
such an agreement If the employer has not negotiated other
arrangements in accordance with the Model Agreement, it can-
not claim that other arrangements apply. Under the previous
agreemen s
- . -- -
~
~ 41
which .applied to unclassified employees, so Ar~ 7 7 did not
apply to this situation at any time
view 3 would also require any hours worked in a day in
excess of 8 hours be paid at the overtime rate.
Employer Arguments:
The evidence did not establish what periods the grievor
was improperly paiq and what he should have been paid. It
established that the grievor would be paid at time-and~a-half
when he worked' over 40 hours in one week, and when his previ-
ously scheduled shift was extended. One issue to ~be decided
.was 'If!hether to measure the work week or the work day, and
whether the work is regularly scheduled. The union relied on
Art. 3.4{b) where the grievor works 12 hours. Art. 3.4(b)
requires employees to be paid at time-and-a-half where they
have worked
in excess of the scheduled hours for employees
who wo~k on a regularly scheduled work day excee-
ding eight (8) hours
An employee must work in excess of 12 hours to be entitled to
be paid at time-and-a-half. In addition, an employee who is
schequled to work for 4 hours and who works 8 hours will be
paid at time-and-a-half. Where the grievor worked on days
that were not his regularly scheduled days, Art. 3.4 (d)
wo~ld apply. Art. 3.4(d) requires employees to be paid at
time-and-a-half 'where they have worked
in excess of thirty-six and one-quarter (36 1/4) qr
forty (40) hours per week where employees do not
have regularly scheduled work days.
Art. 3 4(a) is inapplicable to the grievor's. circumstan-
ces. Ex. 6 demonstrated that the grievor did not work a .../
regular 40-hour work week, and that therefore, Art. 34(a), --
which requires employees to be paid at time-and-a~half where
--.--- they- have worked -..---
in excess of seven and one-quarter (7 1/4) or
eight (8) hours per day, as applicable, where
employees work a regular thirty-six and one-quarter
,-_. -.-
. ~- ~
. 42
(36 i/4) or forty (40) hour wor~ week, as appli-
cable,
does not apply GSB 2180/90 has ruled on this issue In
that case, unclassified COs, who were not covered by a com-
pressed work week agreement were scheduled to work the .regu-
lar hours, of employees on extended leaves, etc. , and other
unclassified COs were called in on an as-needed basis such
that their hours did not coincide with any schedule The
decision addressed whether an unclassified employee slotted
into a regular full-time employee's work schedule was entit-
led to the overtime rate for hours worked in excess of 8
/
hours. GSB 2180/90 is on all fours with the issue before
this panel. Therefore the panel should determine this case
in the same way. The grievor was on a schedule which inclu-
ded 12-hour shifts. Classified employees were not paid over-
time after 8 hours. The grievor's schedule does not have to
coincide with a weekly schedule for the principle in 2180/90
to apply. The overtime grievance should be dismissed.
Union Reply:
If the Cook's Schedule (Ex 6) is a "regular schedule"
in which the number of hours vary from, week to week, Art. 3.4
(c), which requires employees to be paid at the overtime rate
for "authorized hours of work performed.. in excess of the
employees' regularly scheduled work week" was applicable. Be-
cause the word "or" follows each of the possibilities in Art.
~ 3.4, if an employee's hours fit into any of the categories
(a) to (d), s/he is entitled to pay at the overtime rate.
This situation is distinguishable from GSB 2180/90 because
2180/90 dealt with an unclassified employee who was substitu-
ting fora full-time classified employee, not with one who
--
had his own "regularly scheduled work week" under Art. 3.4
(c), as the grievor had. The evidence established that the
grievor had a "regularly scheduled work week" and that the
departures from it do not change how it should be character-
ized under Art. 3.4.
I
~
'. 43
-.
B. The Twenty-Day Rule:
Union Argument:
In Vandenheuvel et al., 2086/91 etc (Low) [OPSEU file
91E303-310] the twenty-day rule was applied because there was
no evidence that the grievors were unaware that they had
cause for complaint The evidence from the preliminary .ob-
jection demonstrated a subjective lack of complaint and that
,
the panel should apply the ordinary principles to determine
whether applying the twenty-day rule would be inequitable or
equitable. Re OPSEU and the Crown in right of Ontario.et ale
(1983) 44 O.R (2d) 51 (Ont. Div. Ct.-) held that the GSB has
--
the discretion to make such a determination, and that if it
fails to do so, it is declin,ing its jurisdiction.
If the panel concluded that the collective agreement had
been breache~, then the Ministry got the bargain of an under-
paid employee for some period. There is no appearance of
prejudice to the employer. The records appear to be there.
The papel can determine that the twenty-day rule did not
apply. It was a brief period of 18 months for one employee,
the grievor Such a determination would not likely have a
wide-ranging effect in view of the addition of Art. 7 7 to
3.16, which .enables the parties to put unclassified employees
on compressed work weeks by agreement, beginning January 92.
Employer Argument:
The twenty-day rule sh0uld apply. OPSEU (Jansson et al)
and Ministry of Correctional Services, 1888/89 etc. (Gorsky)
indicated that the twenty-day rule can be departed from where
circumstances would make it inequitable for the Ministry to
rely upon it. No such circumstances are present. The grie-
vor worked 12-hr shifts from June of 1990 to March of 1992, a
period of almost 2 years, without complai~t. He did not com-
plain until- 6-months after he stopped working 12-hr shifts.
The employer had no knowledge of a complaint of an alleged
breach of the collective agreement and no opportunity to cor-
~._.~_.-- - . --
- - ~ . - - --- -- - -- -- - ---- -
t
~ 44
rect it There was no evidence that the employer sought to
take advantage of thegrievor's delay in grieving The over-
time grievance can be characterized as a continuing grievance
and therefore parall~l to a classification grievance, as in
Jansson. The twenty-day rule should be applied, and that
would leave the grievor without any remedy In the alterna-
tive, because there was no evidence as to the amount of over-
time that should have been paid, the panel may be in a posi-
tion to determine the principles of the remeqy, but not the
remedy itself. If the union succeeds on the overtime grie-
vance, on the twenty-day rule and on remedy, the panel should
leave ~he calculations to the parties.
Union Reply:
Where the grievor is subjectively unaware of a complaint
) under the collective agreement, slhe has an extended period
in which to file a grievance. The board must balance the
equities of the parties.
C. Re Estoppel:
<it
Union Ar9ument:
Nothing in the employer's evidence vitiates the conclu-
sions to be drawn from looking at Supt Brunton's letter of
)
March 31, 1992 (Ex 3) . Supt. Brunton testified that he felt
the need to reassure the employees and added the proviso that
his statements in his letter should be understood to be sub-
ject to "all things being equal", which ,had not been express-
ed in the letter. Grey Bruce (1993) 35L.A.C. (45h) McLaren
and Pacific Press (1987), 31 L.A.C ( 3d). 411 (Munroe) apply.
The standard of "intention to effect legal relations" is "the
reasonable standard", i.e what the reasonable person would
have thought in reading that letter. The explanation regar-
-....-~._----_.~- --" -- ding what happened was not convincing. Nothing" changed be-
tween the date of the representation and the date of the com-
petition. Management's mind as to whose position was up for
-
;- 45 "-
grabs changed Supt Brunton's evidence on this point had
some frailties. It was contradictory and evasive. He conce-
ded that the- wording (i e.the reference to the grievor hav-
ing been backfilling a position) was wrong. The only reason-
able inference was that around late August, 1992, the+e was a
change of mind about taking the grievor back.
The grievor's first contract stated that he was a new
hire. Each contract thereafter stated that it was a renewal.
Occasionally the reason for the Appointment i~ indicated on
its face. None of the grievor's Appointments refer to his
position being a temporary fill-in for someone else's, in
this case Mrs. Lowe's, position. The grievor's position
existed before and continued after Mrs. Lowe left. The grie-
vor's contracts de;> not coincide with Mrs. Lowe's departure.
One 6-month contract was signed March 1990; Mrs. Lowe left in
April or May of 1990. Another contract, described simply as
a renewal, was signed effective September of 1990, and the
evidence indicated there was already a stand-in for Mrs.
Lowe, Schwartzentruber Another contract is dated February,
1991- Supt. Brunton's acknowledgment that the grievor was
not filling in for a, regularly scheduled position was further
evidence that the grievor was not filling in for the Regular
Part.,..Time position. The panel should conclude that there is
- -
a stable existing unclassified position, which was not Mrs.
Lowe's Regul~r ~art-Time position, backfilled.
Regarding detrimental reliance, the grievor gave uncon-
tradicted evidence that he relied on the recall letter, and
did not look for other jobs. More importantly, he did not
prepare or study for the interview as he might have, a fairly
m~terial point, as that is the main area in which he "crash-
ed" in the competition. Supt. Brunton quite fairly conceded
that it was the type of interview for which preparation would
be important. _ The idea that_ the grievor is the worst cook,_ ---
as his lowest score in the competition would suggest, is
contradicted by the emp1pyer having taken him back.
.- _.- ~.-
.-
I
~
. 46
~
Another ,element of estoppel could be found in manage-
ment's failure to advise him that he was in effect competing
for his own job. That failure constituted a misrepresenta-
tion anq formed the basis of a further estoppel in the cir-
cumstances of this case and given t~e history of theposi-
tion. Neither the posting nor the interview process made it
clear that the grievor was being considered for his own posi-
tion.
Employer Argument:
Regarding the union's reliance on Supt. Brunton's letter
of March 31, 1992 as a representation in support of an estop-
--
pel, as of July 31, 1992, the date of expiry of the grievor's
last contract, s. 18(1) of CECBA, R.S.O. 1990, c. C.50 ap-
plied, and gave the exclusive right of "employment" and "ap-
pointment" to management. Those exclusive management rights
included the right to renew Appointments Each decision to
renew is a fresh decision to appoint or employ. Although the
powers under s. 18(1) "died" on February 14, 1994 when CECBA.
1993 c~e into force, management's rights were statutory when
the problem in this case arose. Management retai~ed those
residual rights in this situation. Miller, 3004/90 (McCamus)
supports the proposition that "assignment" is a s 18(1) ma-
nagement function. As such, it does not come within the ju-
'risdiction of a board. BecaUse assignment is a statutory
management right, the doctrine of promissory estoppel does
not apply
Brummell, 1584/91 (Kirkwood) is a leading GSB case re-
garding estoppel. It determined that the employer c~nnot be
I
held to representations made by its representatives regarding
.-- matters falling within s. 18 management rights Supt Brun-
ton's representations were addressed to the grievor; because
they were not representations as between the parties to the
-- - - --- --- -.-.-- ~ - - -- -~ -- - -
collective agreement, management and the union, they cannqt
be relied upon to form the basis of an estoppel. The repre-
---------- - <-- - --
I
I j
}-
E
47
sentation regarding recall was made subject to there being no
change in circumstances.
The discrimination occurre~ while the grievor was an
employee. The non-renewal of the contract was clear of any
indication of discrimination. The grievance should therefore
be dismissed. If the hoard wishes to consider a remedy, it
should address the problems the grievor had with Mr. wil-
liams-, and the principles which permit a board to award
damages.
Union Reply:
supt Brunton knew by late 1991 or 1992, well before his
I
letter of March 31, 1992, that the Regular Part-Time position
had become open and could be filled by competition. Brum-
mell, supra, is distinguishable because it de~lt wit~ a rep-
resentation made before the grievor commenced employment,
which gave the arbitrator difficulty in assuming jurisdic-
tion. In this case, unlike Miller, supra, the facts do not
deal with what could be_ characterized as a "reasonable prac-
tice" of the employer, but rather with a specific representa-
)
tion. To' t~e extent that Miller is authority for the propo-
sition that a reasonable practice of the employer in respect
of a s. 18(1) management right cannot form the basis of an
estoppel, the board should not follow it, as several boards
have held that Aricle A extends to a wrongful or discrimina-
tory non-renewal of a contract. Those cases proceed on the
basis of Article A, rather than on estoppel. Equity is the
basis of the doctrine of estoppel. The board can extend the
grievor's contract upon the equitable principles upon which
estoppel is based.
D. Discrimination:
Union Argument: ---- ------'------.~.~-----.------- --~ --'----.....-.--
The grievor's evidence was completely corroborated by
Supt. Brunton Supt Brunton agreed he had heard complaints
. -"-- -..----.
-!
. 48
about Mr Williams. Mr Parsons' evidence was uncontradic-
ted In his memo (Ex 12) the grievor had referred to "un-
just harassment". It is unrealistic to expect a non-lawyer
to set out a statement of particulars" especially given that
there was no dispute that it occurred. Supt Brunton made no
attempt to explain why he did not do anything earlier about
what Mr. Williams did. That may reflect well on Supt. Brun-
ton, but did not do a lot to vindicate the employer Mr.
Williams was a problem before and after the Bentley's inci-
dent and the employer squandered an opportunity to ,discipline
him by pulling the letter of counsel. Mr Williams was not
dealt with, which was management's responsibilitYL whether or
not it had been Supt. Brunton's responsibility.
As to whether Mr. William's discriminatory attitude and
behaviour had any effect on the decision re hiring the grie-
vor, the Board must be convinced to d~aw an inference that
the decision was materially affected by discrimination. It
is sufficient to establish that part of the decision in the
competition had been tainted by Mr. Williams' poisoned input.
It is not necesary to demonstrate that discrimination was the
only or the main reason for the outcome of the competitions.
The board should infer from the evidence that the decision
was tainted. That should not necessarily be inferred from
Supt. Brunton's testimony alone, but also from Mr. McKenzie
and Mr. Williams not having been called as witnesses. The
grievor's and Mr. Parson's evidence had been that the grievor
had problems with Mr McKenzie as well. The grievor's evi-
dence had been that those problems were worse after the Bent-
ley's incident Supt. Brunton's evidence had been that Mr.
McKenzie and Mr. Williams socia~ized, and that Mr. McKenzie
socialized with Mr. williams as much as anybody at Bentley's,
and Mr McKenzie was on the competition panel. It was easy
to see the taking of sides in a smalle~_institution on behal(_ ---
of Mr Williams. Mr. McKenzie certainly had access to the
grievor's file and all the things Mr. williams said about
;-.I'~'l him. Absent evidence to the contrary, the panel can infer
--- ._--
I
L
49
that Mr McKenzie's approach to the competition w~s material-
ly affected by Mr Williams.
Employer Argument:
The onus was upon the union to establish a violation of
Art A. The violation had to have occurred while the grievor
was an employee The grievor was properly appointed to the
unclassified service on a series of contracts with a speci-
fied start and finish date The evidence had not indicated a
guarantee of a renewal or extension of the grievor's con-
tract. The grievor had job security only to the expiry date
of his current contract. During the term of his contract the
employer saw a need to renovate the Stratford Jail, which had
I
nothing to do with the grievor's ethnicity and was undertaken
strictly for business reasons. Du~ing the renovations the
employer determined that the~e was no need to retain unclas~
sified cooks beQause the kitchen wasn't operating. As a re-
sult the grievor and Ms. Huitema were placed on lay-off. At
the time of the lay-off they were told it would be approxi-
mately 12 weeks. That representation was made in good faith.
At the time o:f the lay-off they were also told they would be
r~called on the re-opehing of the Jail There were delays of
5 or 6 months in the renovations. Although Ms. Huitema's and
the grievor's contracts had lapsed, Supt. Brunton indicated
in a letter that he still intended to recall them.
With the delay, other factors in the workplace were
liable to change Mrs. Lowe's position came up to be filled
by competition and was posted~ The grievor, Ms. Huitema, and
others applied. There was some surprise when Mr. Persad won
the competition from outside based on his qualifications.
Supt. Brunton testified that he had one unclassified cook
position, and two unclassified cooks on lay-off to whom he
had made the same representation, so he decided tq apply the ~ -
competition results. He did not apply seniority, because, he
testified, an unclassified employee does not enjoy seniority
under the collective agreement. Supt Brunton based his de-
~- - --
~ J
50
cision on ability, which he thought was best measured by the
'competition. Of the 6 applicants, Ms. Huitema had placed
second and the grievor had placed last
Neither Ms Huitema nor the grievor were told to study
or prepare for the competition The employer expected and
was entitled to expect each employee to put himself forward
in the best light possible during the competition. On th.j.s
basis, Ms. Huitema returned to the Stratford Jail and the
grievor did not. Nothing in those facts indicates discrimi-
nation, unfair treatment, or a violation of the collective
agreement. The evidence of Mr. Williams' discriminatory
conduct was unchallenged. The grievor claimed that the dis-
crimination affected the decision not to have him back. That
evidence provides the basis of a workplace problem, but not a
violation of the collective agreement. It established that,
Mr. williams' abusive connnents were not of the greatest con-
cern, and although the grievor said that discriminatory com-
ments were made in the workplace, he never made a complaint
of it to the Superintendent. When the, incident report was
made about the Bentley's Tavern incident, Supt. Brunton dealt
with that issue and the discipline of Mr. williams.
The grievor~s incident report mentioned assaultive b~ha-
viour and ongoing problems in the workplace, but did not dis-
close discrimination. The g!rievbr' s evidence that he felt it
embarrassing to "put that in" was "selectivity" on the his
part. It lacks credibility, especially in light of his
statement that he was concerned that his own paperwork could
be used against him in the future. The grievor agr~ed that
he could not expect Supt. Brunton to take action if he wasn't
aware of the problem
--
The union is attempting to show that the non-renewal of
the grievor's contract is related to discrimination. The em-
ployer asserts that that is not the case. There was no, evi--- ----------
dence of discrimination in its decision not to renew. Mr.
Williams' conduct was not condoned The grievor testified
-- -_._-~ -~----
-!.
.
51
Supt. Brunton wanted something in writing. Supt Brunton
testified that he recognized Mr Williams' bias against the
grievor and that Mr. williams' credibility regarding the
grievor_was low There was no evidence that Mr. Williams'
attitude had an effect on the decision not to renew the
grievor's contract. The grievor's attempt to lead evidence
that Supt. Brunton treated him in a discriminatory manner,
and the evidence that Supt. Brunton h~d carried out an inves-
tigation in a normal manner and the absence of any repercus-
sion on the grievor demonstrated that the grievor was att~mp-
ting to expand the grounds of his grievance and did not de-
-monstrate actual discrimination. The employer first heard
the allegation that Supt. Brunton had discriminated against
the grievor during the arbitration hearing. The allegation
that Supt. BruntOn had a discriminatory motive is inconsis-
tent with Supt Brunton's evidence that he intended to recall
the grievor, despite not having to do so, and his having re-
h~red him as aGO. Temp following his grievance. .The rehir-
ing of the grievor was not contingent upon the grievance.
d The grievor did not complain about discrimination that
occurred while he was employed until August 28, 1992, 4 1/2
months after he stopped working. The grievor claimed to have
had problems with Mr. McKenzie for the first time toward the
end of his cross-examination. This indicated an attempt to
link Mr. McKenzie to the outcome of the competition Limited
evidence was provided on the competition. Aside from the
grievor having been ill-prepared, there was no indication
that the results ought to have been different
The sequence of events surrounding whether the grievor
would continue to be employed at the Jail was based on good
-
faith and proper business decisions. There was no taint of
discrimination or bias. Rather, there was a set of competing
... ---- ~ interests. Ms. Huitema was in the same position as the grie-
vor, and the contract for one or the other of them would not
have been renewed in those circumstances.
.
52
- In determining whether there had been a violation of
Art. A, the board should consider whether abusive behaviour
in the workplace amounted to prohibited discrimination, and-
that one of the grounds under Art A must be found to be pre-
sent. A lot of the problems the -grievor experienced from Mr.
Williams pertained to performance, appearance issues, and
incorrect assumptions Mr. Williams made about the grievor,
rather than ethnic origin. It was clear that Mr. Williams
did not like the grievor "for whatever reasons". The board
should bear ~n mind that the grievor was the recipient of
comments from Mr. Williams, that Mr. McKenzie was not demon-
strated to have been biased, and that the evidence regarding -
Mr. McKenzie was "just an extension of the grounds". Al-
though Mr. Williams disliked the grievor, his dislike had no
effect on the grievor's continued employment and the grievor
continued to work despite experiencing those problems. When
Mr. Williams' behaviour was brought tos~pt. Brunton's atten-
tion, the grievor failed to say it was discriminatory, but
Supt. Brunton dealt with it. Whether the Board is satisfied
with the outcome of Supt Brunton's efforts, the grievor's
complaint was addressed. Supt. Brunton represented the em-
ployer in the workplace. It was his responsibility to deal
with Mr. williams. Whether or not the Board finds Supt.
- -- --~-
Brunton to have been effective or to have made the right
decisions, it is clear that he did not support Mr Williams
and sought to deai with the problem by having people report
the incidents, and that he gave little weight to Mr. wil-
liams' statements regarding the grievor
If the Board concludes that there has been a violation
of Art. A, its jurisdiction regarding damages is found in
section 2:1410 of Brown & BeattY, Canadian Labour Arbitra-
tion. 3rd Ed. (Canada Law Book Inc.: Aurora, -Ont., 1995) .
Regard~ng damages awarded by boards of inquiry, a board can---~---
determine whether certain conduct is a violation of the Human
Rights Code, but in this case, the board does not have to go
any farther than Art. A, and can deal with the allegation o~
-
i' :- 53
discrimination only as a violation of the collective agree-
ment. The GSB should dnly resort to the Human Rights Code
when there is no language in the collective agreement, which
is not necessary in this case, as the agreement incorporates
the language of the Code with respect to prohibited grounds
of discrimination. The GSB is not a board of inquiry under
the Code and deals primarily with contract issues rather than
human rights. The GSB derives its jurisdiction from s. 46-
50 of CECBA, 1993, in force May, 1994. S. 7 of CECBA. 1993
states that s. 45 of the Labour Relations Act applies. No-
thing in CECBA. 1993 im~orts the scope and authority of the
provisions of the Human Rights Code to the GSB S . 45 ( 8 ) 3
does not authorize the GSB to import the remedies and juris-
,prudence of boards of inquiries under the Human Rights Code.
Anderson, 3842/92 ( Stewart) , Courteney, 912/88 (Wilson) and
Howe, Dalton and Loach, 3155/92 (Dissanayake) are applicable,
the latter particularly regarding the authority of the GSB to
dismiss or discipline a manager against whom discrimination
was directly alleged. The GSB's remedial authority is wide
but the union is encouraging a philosophical departure from
the GSB's ordinary approach. There is no need to expand the
remedial authority of the GSB where the alleged discrimina-
( tion arose after the cont~actual relationship was severed.
In Metropolitan Toronto (Municipality) and C. U . P . E. .
Loc. 79 (Re Zekousheff), (1993), 35 L.A.C. (4th) 357 (Fi-
sher), the collective agreement imported the HumaA Rights
Code, but the agreement in this case does not hav~ such a
provision. Its terms simply ensure that there ar~ no human
rights violations in the ongoing relationship bet~een the
union and the employer The GSB determines wheth4r a human
rights violation has occurred by interpreting the Code, but --
not by applying its remedies. The GSB should not follow hu-
. ~._, _. _.___.~_. ._ _ --man rights cases with respect to interpretation or remedy
Under s. 45(8)3, the authority to apply the HumanlRights Code
means determining whether or not any article in t~e collec-
tive agreement is in compliance with the Code.
-."-.-...,--..--
.- --
~
: 54
If the panel considers a remedy, it should consider
whether the grievor was discriminated against on prohibited
grounds while an employee The principles in Brown and
Beatty, supra, should apply. This places no limits on the
,
GSB's remedial authority. There was no evidence that the
grievor had lost money as a result of the problems he had
with Mr. Williams. His employment was not affected by Mr.
Williams in any way. There may be no remedy for what
happened.
Miller and MacPhail, supra, is distinguishable, as the
grievors had been terminated in the middle of the term of
the1r contract. The board determined that the employer's
delay in filing for judicial review resulted in undue d~lay
in reinstating the grievors and that the delay should enure r
to the grievors' benefit. Such facts are not present in this
case. The employer relies on Houston/Campbell 1799/90
(Verity) .
Union Reply:
Very little evidence was heard regarding what went on
with Ms. Buitema. The evidence did not establish that the
grievor was treated identically to her or that he was not
treated identically to her. It is reasonable to conclude, on
-- -- ---,...- the evidence as presented, that Ms. Huitema was aware that
her own job was on the line at the time of the competition.
The interview counted hU9.ely. That was where the vast diffe-
renceoccurred between the candidates Thegrievor did not
prepare for it because of the representation. The interview
is the context in which the employer is most able to exercise
its discretion in evaluating candidates.
If Mr. Williams was not called as a witness, the employ-
er is unable to challenge the grievor's evidence about him
and nothing contradicts it. Supt. Brunton's evidence cor-
._--_.~- ~ - .-- --.- -- ---
roborated that he knew there was a problem and that through
verbal reports he was aware that Mr. williams demonstrated
bigotted attitudes toward the grievor. The employer is li~
!.
;' 55
~
able for Mr Will.iams I acts without blaming Supt Brunton
Because Mr Williams is a member of management, his ,conduct
is management's conduct The employer's remarks regarding
Mr. McKenzie should be disregarded because it was not sugges-
ted to the, grievor in cross-ex~ination that he pad fabrica-
ted anything about Mr. McKenzie.
E. Remedy and Jurisdiction re Remedy:
Union Argument:
If, after full consideration of the evidence and submis-
sions, the board does not feel equipped or convinced, or does
not find it appropriate to place the grievor back in the po-
sition, because it has become a Bill 40 board of arbitration,
) it can now make an award of damages-at-large for discrimina-
tory treatment. The cases demonstrate that the awards for
damages-at-large are more modest than those for back pay.
The standards -and principles in Waterman v. National Life
Assurance" Co. of Canada (No. 2) , (1993), 18 C.H.R.R. D/176
(Plaut); McArav.MotorCoach Industries Ltd. (1988), 9
C.H.R.R D/4858 (Simmons), and Broere v. W.P. London and
Associates Ltd. (1987), 8 C.H R.R. D/1489 (Knopf) apply.
"This board has jurisdiction to order that the grievor be
reinstated to an unclassified position. Miller and MacPhail,
531 & 532/82, (Verity), pp 15-17 should be considered.
Where an unclassified employee was dismissed without cause
and was viewe9. as "blameless", the board determined that ~t_
could not presume that the grievor would not h~ve been reap-
pointed, and reinstated the grievor for the balance of the
contract period not served, with full back pay. The deter-
----- mination re remedy in Johnson, 847/89, was similar In Grum-
mett, 1656/90, (Kellar), although appointments of employees
over age 65 are completely within the discretion of the em-
--.- - ._~- .- ~-- - - ~---
ployer, the employer was ordered to pay the grievor for all
lost wages for the period in which she had not been working.
-'-.-- .-'.-"-
"
-,
<' :- 56
s. 2.1 4 and 45(8)1 of the Labour Relations Act, R S O.
1990,C. L 2 (Bill 40) have been applicable to this Board
since February of 1994 when CECBA. 1993, S o. 1993, C. C 50
came into force Although those sections became applicable
after the dates of. the grievances, the hearings in this case
have been conducted under the "regime" of Bill 40. s. 2. 1. 4,
which states that one of the purposes of the Act is, "to pro-
vide for effective, fair and expeditious methods of dispute
resolution" supports the union's submission that this panel
not be overly technical about the date upon which s. 45(8)1
became applicable to the GSB. S. 45(8)1 gave boards of arbi-
tration the jurisdiction to "address the real substance of
the difference" and S. 45(8)3 gave them jurisdiction "to in-
terpret and apply the requirements of human rights and other
employment-related statutes". There is a non-discrimination
clause in the 'collective agreement, but this board can, under
s. 45(8)3, put itself in the position of a Human Rights Board
of Inquiry. In Zekousheff, supra, at p. 363, Arbitrator
Fisher said:
...the recent amendments to the Labour Relations
Act in s. 45(8), para. 3, seem to expand the tradi-
tional jurisdictional base of arbitrators. The pa-
ragraph does not limit arbitrators to simply utili-
zing human rights statutes to overrule contrary
provisions in a collective agreement. Rather arbi-
trators.are specifically empowered to "interpret
and apply the requirements of human rights and
other employment-related statutes"(emphasis added).
As such it seems that labour arbitrators are
now empowered to apply statutes such as the Human
Rights Code to all disputes before them and to ap-
ply them as if they had the same powers asa board
of inquiry under tpe Code.
The right to reinstate and other remedies flow from
Article A. CECBA. 1993's incorpor~tion of the Labo~r.Rela-
tions Act's provisions strengthens this board's sourCe of
remedial jurisdiction. Whereas Arbitrator Fisher determined
- that he had-the jurisdiction to accomodate a disabled bar-
gaining unit member by putting him in a non-bargaining unit
I
-
. It 57
position, this Board could order reinstatement to an unclas-
sified position.
In Riverdale Hospital (Board of Governors) and C. U . P . E . ,
Loc. 79 (1993), 39 L A.C. (4th) 63 (Stewart), the board con-
cluded that because the employer was obliged to comply with
the Human Ri9hts Code prior to Bill 40, the coming into force
of s. 45(8)3 of the Labour Relations Act after the filing of
the grievances did not change the employer's obligations.
Bill 40 merely changes the procedural mechanisms for enforce-
}
mente This board's position is parallel and , its power is pro-
cedural and remedial. In Riverdale, the board indicated that
the ability to enforce human rights and other employment-
related statutes comes along with the authority to interpret
and apply them.
Union Reply:
The board should deal with the non-renewal of the grie-
vor's contract and remedy. If it decides to award damages,
under the collective agreement, non-discriminatory conduct,
even if spiteful and mean, is not compensable. The board
cannot limit its remedial authority to one incident where
"
evidence of a discriminatory attitude is present. Because
the evidence was "pretty strong", the board can draw an in-
ference and find that the discriminatory attitude-informed
all of Mr Williams' conduct to the grievor.
In Polymer, Laskin said that a breach of the collective
agreement gives a right to award damages. Ordinarily arbi~
trators assess liquidatable damages, qut that depends upon
the article breached Where the breach is of a non-discrimi-
nation article, there may be no liquidated damages, and
boards simply do the best they can. The remedial authority
flows from the breach. The board can determine what the
damage is worth. Where ~o _mone~ary_~~ss aJ:"_~~e:f:J__ f_~~~ __work-
place discrimination and harassment, the board has jurisdic-
tion to fashion a remedy that includes damages. The employ-
er's submission that the board is confined to interpreting
.. - - .--
~
.~, 58
" ..
human rights statutes under s. 45(8)3 of the Labour Relations
Act and can only strike down parts of a collective agreement
which are contrary to the Code makes s. 45(8)3 meaningless.
The mandate to "apply" human rights statutes carries with it
the authority to apply or give effective remedies.
The board can view Mr. Williams' conduct as harassment
without dealing with the renewal of the grievor's contract.
"No discrimination" under the heads of discrimination stipu-
lated in Art A 1.1 of the collective agreement includes "no
harassment" . The facts of the case suggest a violation of s
5(2) of the Code, which posits a "right to freedom from
harassment in the workplace by the employer or agent of the
employer or by another employee becaus~ of" the prohibited
heads of discrimination. Bill 40 would import the authority
of this board to determine a violation of s. 5(2) of the
Code. This board can look at human rights Board of Inquiry
cases for the law respecting burden, discriminatio~ and reme-
dy as well as its authority regarding breaches of Article A.
3., Conclusions:
A. Overtime (Art. 3.4) :
The initial question before this board is how to apply
Art. 3.4 to the circumstances of the grievor.
The Attendance Report (Ex. 5) indicates Mr. Chircop
first worked a 12-hour day on April 26, 1990 It records
that he was scheduled to work 8 hours and was credited with
another 4 hours which is designated "O.T." It indic~tes that
he began to work pre-scheduled 12-hour shifts commencing June
7, 1990. It also indicates that he worked an 8-hour day and a
further 3 1/2 hours, which is designated "O.T " on August 19
and 20, November 5 and 6, December 7, 14 and 20, 1989, and
Feb 15, March 1 and 23 ;-April 4, 5, 6, 14, 20, 2 6;- 2 7 , 2 8, ~- - ~-
29, May 3, 12, 17, 18, 23 and 24, and June 2 and 3, 1990.
-- ~
- ~ --- - -
!!-
fi" 59 "'-
, .
Ex. 5 indicates that the grievor worked almost every weekend
-from June 12, 1989 to May, 1990, that he had one e~tire week-
end off in May and June of 1990 and worked the remaining
weekends tho~e months, had 4 weekends off in July, 1990, and
had one weekend off in August, of 1990 From September to
December, 1990 he worked every other weekend. Commencing
January 12 and 13, 1991 he worked every third weekend, with
occasional exceptions from that pattern.
The Attendance Reports (Ex. 5) begin to display the pat-
tern of hours for individual B (the grievor) on the Cook's
Schedule (Ex. 6) on the lines for the grievor commencing in
the last week of January, 1991. They record March 28 and 29,
1992 as the last 12-hour shifts worked by the grievor.
In OPSEU (union) and the Ministry of Correctional Ser-
vices 2180/90 (Simmons) the board stated, at p. 8, that the
narrow question before it was whether an unclassified em-
ployee who was slotted into a classified employee's work
schedule of 12-hour shifts was entitled to the overtime rate
for hours worked in excess of eight, and ruled that such an
employee was not entitled to the overtime rate. It stated,
at pp. 8-9:
It is to be noted that 3.4'(b) states that overtime
is to be paid when the employee works "in excess of
the scheduled hours" unlike (c) which says "in
excess of the employees' regularly scheduled work
week" . ... Art. 3 4(b) applies and employees who
are working on a regularly scheduled work day that
is of 12 hours duration are not entitled to over-
time unless they exceed the regularly scheduled
hours of work for the day
We are supported in this view by the fact that
ciassified employees who are regularly scheduled to
work for 12 hours in what is referred to as the
compressed work week are not entitled to overtime
for the hours worked in-excess of eight.
~
Because the time period under consideration ,in that case
-' ---, pre-dated the January 1/92 to December 31/93 collectiv~_______ - -~--_._- -
agreement, Prof Simmons did not address Art. 7 7.
Art. 86 1 of the 91-91 collective agreement provides:
- - ...~
---
!.
" 60
The effective date of any changes to the terms of
this Agreement from the previous Agreement, unless
otherwise indicated, shall be February 3, 1992 .
There is no indication in Art. 3 16 or Art. 7.7 that the ef-
fective date of the inclusion of Art. 7.7 in Art. 3.16 will
be other than February 3, 1992. It is therefore clear that
the parties intended unclassified employees to have the bene-
fit of Art. 7.7 "other arrangements" effective February 3,
1992, failing which the ordinary overtime provisions in Art.
3 4 would apply It is therefore nqt unreasonable to con-
clude that by giving unclassified employees the benefit of
Art 7 . 7 as of February 3, 1992, the parties expressed the
intention that from that date unclassified employees would be
paid at overtime rates when working compressed work week
hours e.g. 12-hour shifts, unless another "arrangement" was
made pursuant to Art. 7.7.
-We do not find any reason to reject the reasoning of the
Simmons panel for the period up to February 3, 1992. At that
pqint, however, some of the collective agreement's provisions
chang~d. In the January 1/92 to December 31/93 agreement the
parties for the first time included Art 7.7 in Art. 3.16.
Art. 3.16 indicates which articles of the agreement apply to
unclassified employees. If the parties had not amended. Art.
3.16 by ,including Art. 7,7, Art. 3 . 4 (b t as interpreted by_ -~- -
Prof. Simmons would apply throughout the grievor's period of
employment However, we are obliged to determine the par-
ties' intention as to the application of Art. 3 4 in view of
their amendment to Art 3 16. To do otherwise would be to
read Art. 3 16, and the application of Art 7.7, out of the
agreement. It is unlikely that the parties intended that
that amendment be ignored
There is no evidence that the parties made "other ar-
rangements" respecting the work hours and work weeks of un-
classified cooks. .~------ ~ --.--- ----~ ----, --.
Art. 3.4 provides:
OVERTIME
r
-
~
;; 61
3.4 One and one-half (1-1/2) times the basic hourly
rate shall be paid for authorized hours of work
\
performed
(a) in excess of sev~n and one-quarter (7-1/4)
or eight (8) hours per day, as applicable,
where employees work a regular thirty-six
and one-quarter (36-1/4) or forty (40) hour
work week, as applicable, or
(b) in excess of the scheduled hours for em-
ployees who work on a regularly scheduled work
day exceeding eight (8) hours, or
(c) in excess of the employees' regularly
scheduled work week, or
(d) in excess of thirty-six and one quarter (36-
1/4) or forty (40) hours per week where em-
ployees do not have regularly scheduled work
day~
The grievor did not work a regular 36 1/4- or 40-hour
work week; therefore Art. 3 4(a) does not apply. Although
the grievor's days and hours differed from week to week, be-
ginning in the last week of January, 1991, his work days were
regularly scheduled, such that Art. 3.4(b) might apply. As
of the last week of January, 1991 his 3-week rotating sche-
dule gave him three different but regularly scheduled work
weeks, such that Art. 3.4 (c) might apply. And although the
grievor's days of work varied, depending upon the week, as of
in the last week of January, 1991 his "work days" were regu-
larly scheduled on a 3-week rotation, such that Art 3.4(d)
would not apply. That leaves Art. 3.4(b) and 3~4(c) as
possibilities. --
If Art. 3.4(c) applies, the grievor would not be entit-
led to be paid at the overtime rate for 4 hours with respect
to the days on which he worked 12,...hour shifts. If that is
the result, the inclusion of Art. 7.7 in Art. 3.16 has no
I (
application. It is, however, possible that the parties in-
I --"- ten~ed to read out Art 7 7 in respec~ of unclassified emp~
I loyees whose schedules fall within Art. 3.4(c).
We also observe that as Week 1 of the 3-week rotation
I ~'"""-
regularly scheduled the grievor to work 17 hours from Friday
--- .-....
.
~
'i ;- '62
of Week; to Thursday of Week 2, he would, under Art 3.4(c),
be entitled to be paid at the overtime rate for all hours in
excess of 17 worked on those payroll weeks designated as com-
mencing on Friday of Week 1 As Week 2 schedules him to work
37.5 hours from Friday of Week 2 to Thursday of Week 3, he
would be entitled to be paid at the overtime rate for all
hours work in excess of 37 5 on the weeks designated as com-
mencing in Week 2. As Week 3 schedules him to work 31 5
hours from Friday ot ,Week 3 ~o Thursday' of Week 1, he would
be entitled to be paid at the overtime rate for all hours
worked in excess of 31.5 each week. We observe that adminis-
tratively, keeping payroll records would be somewhat cumber-
some and painstaking if the parties intended Art. 3 4 '( c ,) to
apply to the grievor's circumstances As well, it would re-
sult in an unclassified part-time cook being entitled to pay-
ment at overtime rates, while working less than 40 hr. per
week and working alongside a full-time cook required to work
40 hr. per week (and 12-hr. shifts) at regular hourly rates.
An employee receiving overtime pay for all hours worked in
excess of a regularly scheduled 17-hour work week is a some-
what anomalous result. However, we cannot, on the language
before us, and the practice as stated py Supt. Brunton, con-
clude that this was entirely outside the parties' intention.
Supt. Brunton testified that the grievor was paid over-
'time when his hours of work exceeded his regularly scheduled
hours on the 3-week rotating schedule (Ex 6) and that when
he was entitled to overtime, that should have been marked on
the Attendance Report, if it was being kept properly This
is not reflected consistently in the Attendance Reports (Ex.
5) For instance, on the Report for February 1991, the grie-
vor's hours commencing Monday, February 11, 1991 conform to -,
the Week 1 schedule. The following week, commencing Monday,
-- February 18, 1991 does not conform to the regular schedule
for Week 2. On Week 2, Tuesday is a scheduled day off. The
Attendance Report indicates that the grievor worked 4 1/2
hours on Tuesday, February 19, 1991, and does not indicate
-
63
that he was paid at the overtime rate. On Week 2, the grie-
vor is scheduled to work 4.5 hours on Wednesday and Thursday.
The Report indicates that he worked 8 hours on Wednesday,
February 20, and 8 hours on Thursday, February 21, 1991, and
does not indicate that he was paid 3.5 hours at the overtime
rate on either day. On Week 2, Friday is the grievor's sche-
duled day off. The Report indicates that he worked 8 hours
ort Friday, February 22, 1991 and does not indicate that he
was paid for tbose hours at the overtime rate
Further, the Attendance Report for July 1991 (Ex 5) re-
flects the following pattern: Week 3 (starting Monday, July
1 ), Week 1 (starting July 8), Week '2 (starting July 15),_ Week
3 (starting July 22), and Week 1 (starting July 29) On Week
3 the grievor is scheduled to work 4.5 hours on Monday and
. , 4.5 hours on Tuesday. The Report indicates he worked 12 hr
on Monday, July 1, 1991; it does not indicate that he was
paid at the overtime rate or the holiday rate. On Week 3,
Wednesday, Saturday and Sunday are the grievor's scheduled
days off. The Report indicates that the grievor worked 8 hr.
on Wednesday, July 3, 1991; it does not indicate that he was
paid at the overtime rate. On Week 3, the grievor is sche-
duled to work 4.5 hr. on Thursday and 4 5 hr on Friday. The
Report indicates that he worked 12 hr. on Thursday, July 4,
-- ._-
and 12 hr. on Friday, July 5, 1991; it does not indicate that
he was paid overtime for any of those hours. The Report in-
dicates that in the week commencing July 8, the grievor's
hours did not conform on Tuesday and Sunday with Week 1
hours; and that he may have been paid some overtime. The week
commencing Monday, July 15 corresponds .somewhat to Week 2 of
the rotating sqhedule ,In Week 2, Monday, Tuesday and Friday
are the grievor's-scheduled days off. The Report (Ex. 5)
indicates that the grievor worked 8 hours on Tuesday, July
16, 1991, his scheduled day off; it does not_indicate that he
was paid overtime.
The notations on Ex. 5, in the absence of the actual
payroll records, do not permit us to determine whether Supt.
--,,---_....- -~. --.---'.'
_. -- - ..- -
-
64
Brunton's statement that the grievor was to be paid for hours
worked in excess of his regularly scheduled hours was cor-
rect. It is possible that the notations on Ex 5 are incor-
rect or incomplete, and that the complete record(s) of what
hours the grievor was paid at the overtime rate are to be
found elsewhere. Further, on the evidence before us, we are
unable to determine whether the grievor was paid overtime
when he worked in excess of 17 hours on the weeks beginning
on the Friday of Week 1, in excess of 37.5 hours on the weeks
beginning on the Friday of Week 2, and in excess of 31.5
hours on the weeks beginning on the Friday of Week 3.
The evidence did not disclose the name o~ xhe person who
kept the attendance records and communicated with the branch
of the Ministry that administered payroll, nor was that per-
son called to give evidence. In view of the foregoing, we
are unable to determine whether Supt. Brunton was correct in
his statement as to when he intended or understood that the
grievor was to be paid overtime, norca~ we determine, on the
evidence provided, t~e Ministry's practice or policy as to
unclassified cooks' entitlement to the overtime rate of pay
during the period in question
There is an ambiguity in the language of Art. 3.4(b},
which directs pay at the overtime rate where the employee has
worked:
in excess of the scheduled hours for employees who
work on a regularly scheduled work day exceeding
eight (8) hours
It is possible to inte~pret the above as meaning that
overtime is payable to employees who work authorized hours in
excess of their scheduled hours, whether those are, as in the
grievor's case, on specified days, 4.5 or 6.5 hours, and on
(
others, 8 or 12 hours Thus, if they work 7 hours on a day
on which they are regularly scheduled to work 4 5 hours, they
receive 2.5 hours of overtime. __ This interpretation, however,
reads out the words "exceeding eight ( 8 ) hours" .
It is also possible to interpret the above as requiring
payment at the overtime rate onlvwhen the employee's requ-
"
<,
'i 65
'i'~
"larly scheduled work day_ exceeds eight hours e. g the em-
p;Loyee is reg\;llarly scheduled to work 8 or 8 5 hours, f()r
example, and works more than those hours It is uncertain
enough to support the interpretation that if an employee iS1
regularly scheduled to work in excess of 12 hours in a day,
e g. 13 hr. a day, slhe would not be entitled to pay at the
overtime rate until s/he worked in excess of 13 hours, be-
cause that was his/her "regulailyscheduled work day exceed-
ing eight hours". However, Art 3.4 must be read in light of'
Art. 7.7 for classified employees prior to February 3, 1992 ,
and after February 3, 1992, it must be read in light of Art.
'7~. 7 for both classified and unclassified employees. In this
case, where no "other arrangements" were made for unclassi-
fied employees, after February 3, 1992, Art. 3.4 (b) cannot
be interpreted as precluding pay at the overtime rate where
an unclassified employee is scheduled to work 12 hours, i.e.
beyond 8 hours, on a "regularly scheduled work day"
It is also possible to interpret Art. 3 4(b) as requir-
ing payment at the overtime rate when an employee works in
excess of his/her scheduled hours, provided that his/her re-
gularly sch~duled hours of work exceed 8 in a day, but not if
his/her regularly scheduled hours are less than 8 in a day.
The first interpretation would result in employees whose
regularly scheduled work days or hours of work in that day
are changed and who. incur the inconvenience of having to
change their personal plans toconforrn to the change in their
work schedules receiving pay at the overtime rate to compen-
sate them for the inconvenience, whether or not their total
work hours that day exceed 8. In this case, the result of
that interpretation would be that a part-time unclassified
cook doing the same or similar work and from time to time
working the same or similar hours as the full-time cook would
.-.__. -~---~. -.- occasionally be paid at the overtime rate for part of the
same hours as those worked by the full-time cook. This has
an appearance of unfairness However, when balanced against
the inconvenience, uncertainty and potential unfairness of
~ -- - .- --, -,. -...--. ..-..--
/
-
'i 66
to ~
the additional hours or change in hours the uncYassified cook
may experience, it is possible that this is the interpreta-
tion and result that the parties intended This interpreta-
tion is supported by Supt Brunton's understanding of the
\
Ministry's practice and policy.
On the other hand, it is possible that the parties in-
'tended that an unclassified employee must work more than 8
hours on any regularly scheduled work day before becoming
entitled to overtime. This would give some meaning to the
words "exceeding eight hours" and the phrase "who work on a
regularly scheduled work day exceeding eight hours". The se-
- cond, and third interpretation reflect this wording, but those
interpretations are inconsistent with Supt Brunton's and the
"
Ministry's understanding of when overtime was to be paid. The
Cook's Schedule (Ex. 6) indicates that the full-time cook
worked 8- and 12-hr. shifts. The requirement of working 8
hours before being entitled to overtime would result in part-
time cooks receiving overtime on the same basis as the full-
time cook, rather than receiving ~t for working beyond his or
her regularly scheduled 4.5-hr shift and would result in
some consistency and equal application of the policy respec-
ting overtime (though not necessarily with respect to the 12-
hour shifts). That is an equitable premise upon which to
base an interpretation, and it gives meaning to the language
"~kceeding eight hours".
We therefore conclude that Art. 3.4(b) is to be int~r-
preted as entitling the unclassified cook, in this case Mario
Chircop, to payment at the overtime rate when he worked any
hours in excess of his scheduled hours, when his hours of
work that day exceeded 8.
Art. 3.4(b) does not directly address whether employees
who are required to work on a day on which they are not regu-
larly scheduled to work are entitled to payment at the over- "---- -
time rate for the hours worked that day. We agree with the
union's submission that the presence of the word "or" after
each clause in Art. 3.4 indicates that the clauses must be
:~
.. . 67
read disjunctively, i.e. as offering more than one alterna-
tive, and that therefore more than one of the subclauses in
Art. 3 4 may apply to an employee. We therefore conclude
that after January 1991, when the Cook's Schedule (Ex. 6) was
implemented, when the grievor worked hours in excess of his
regularly scheduled work week, i.e when he worked on days
not scheduled in accordance with Ex. 6, and when he worked
hours in excess of his regularly scheduled shift on any par-
ticular day, he was entitled to payment at the overtime rate
for those extra hours, under Art. 3.4(c).
The application of Art. 3.4(c) to the grievor's overtime
entitlement does not, however, preclude the application of
Art. 7.7 after February 3, 1992. We conclude, in the absence
of "other arrangements", that after February 3, 1992, under
Art 7.7, the grievor was entitled under Art. 3 . 4 ( b) and ( c )
to be paid at time-and-a-half for all ho~rs he worked in ex-
cess of those regularly scheduled hours indicated on Ex. 6,
and that prior to February 3, 1992, pursuant to the simmons
decision, he was not entitled to be paid at the overtime rate
for 4 of the 12 hours of his 12-hour shifts. We conclude
that prior to February 3, 1992, he was entitled under Art.
3.4(b) and Prof. Simmons' decision, to be paid overtime for
hours worked in excess of the regularly scheduled hours in
the Cooks' Schedule (Ex. 6), except the 12-hour shifts.
We also conclude that the parties may wish to promptly
implement "other arrange~ents" and/or .new language in respect
of unclassified employees who work regularly scheduled work
weeks of variable hours under 40 hours per week and who work
regularly scheduled 12-hour shifts
B. Determination re The Twenty-Day Rule:
_ Jansson, supra, cited OPSEU (Hillman). 2007/89 (Kaplan)
which cited OPSEU and Ministry of the Attorney-General 71/76
as stating the basic principle regarding the twenty-day rule
---
~
i 68
:;- "
an employee's right to claim damages for the
breach of an agreement to the period of time within
which it was permissible to file this grievance
Hillman, supra, indicated that the twenty~day rule was not
j'hard and fast" and was subject to some exceptions. Prof.
Roberts in OPSEU (Stephen C. Smith) and Ministry of Community
and Social Services, 237/81, cited in Jansson, supra, stated )
The usual rule is that, barring the existence of
circumstapces which would make it inequit~ble for
the Ministry to rely upon it, retroactivity will be
li~ited to the period. of time within which it was
permissible to file his grievance.
In view of the foregoing principles, this board must deter-
mine whether the circumstances of this case would make it
inequitable for the Ministry to rely on the twenty-day rule.
In OPSEU (Vandenheuvel et al) supra, in addition to hav-
ing found that there was no evidence from any of the grievors
that they were subjectively ignorant of the fact that they
had cause for complaint, Arbitrator Low stated, at p. 20,
the [grievors'] rationale for not having grieved
earlier was not that the Grievors did not know that
they had a grievance but rather that they were
overall content with their situation".
In this case the grievor testified that he did not know he
had a cause for complaint until approximately the day that he
grieved, September 24, 1992, and did not say that he had not
grieved earlier because he was content with his situation.
In Re OPSEU and the Crown in right of ontario etal.
(1983) 44 O.R. (2d) 51 (Ont. Div. Ct.) the grievors took is-
sue with the date of retroactivity in a notice of reclassifi-
cation. The arbitrator determined that the board had n9 ju-
risdiction regarding matters of retroactivity under the leg-
islation and the collective agreement. The Divisional court
said that the board's conclusion, that the is~ue of the "time
when" was moot, was wrong and that the board's interpretation
.- - - - -" ~ --- -
of the statute's language was not one it could reasonably
bear. That case is of little assistance in determining whe-
- - --
-
.
Q .
69
ther the twenty-day rule should apply to the facts of this
case.
. Jannson, supra, dealt with a claim for retroactive pay
arising from a reclassification which resulted from a grie-
vance .award pertaining to others in the same classification.
The grievor had delayed in filing his grievance pending de-
termination of the other. grievances Arbitrator Gorsky indi-
cated that in the absence of
-evidence that the grievors carried out duties
identical to those of the employees, upon whose
grievance award the grievors relied,
-evidence that the grievors were working side by
side with the employees who had benefitted from
the award,
-evidence that the employer was put on notice of
that particular grievor's grievance at the time
from which s/he claimed retroactivity, or
~evidence of intervention by the employer in the
decision of the grievor to grieve at an earlier
date, so as to raise an estoppel
there was no reason to depart from the twenty-day rule.
To determine whether the twenty-day rule- should be
waived, we will endeavour to apply the factual inequities
identified by Arbitrator Gorsky, with appropriate modifica-
tions, to the facts of this case. ---.'-'----
In this case, there is no evidence that during the peri-
od of the grievor's employment, other employees were rece~v-
ing the benefit of overtime pay in circumstances in which it
was not paid to the grievor, although the evidence establish-
ed that other classified and unclassifiedemploye~s, Mrs.
Lowe, and Ms. Huitema, and others, were carrying out the same
or similar duties as the grievor. The employer had no earli-
er notice of the grievor's complaint than september 24, 1992,
by which time the grievor had not worked in about 6 months.
There is no evidence that the employer's-conduct caused the
grievor to delay in filing a grievance in respect of over-
time, such that it would be deemed to have waived or would be
e~t:C)pped from rel yi ng___npon t:.he b,renty-day rule. The employer
--
.
'" 7 70
may have had the bargain of having failed to pay the grievor
at the overtime rate for hours he worked in excess of his
regularly scheduled hours, or for hours in excess of his
\ --
scheduled 17-, 37.5- and 31-hr. weeks, and, after February 3,
1992, with respect to the 12-hr shifts, owing to the grie-
vorIs lack of subjective awareness of' cause for complaint
until September 24, 1992. This may have occurred frequently
or only occasionally; as stated previously, we are unable to
determine, on the evidence before us, the occasicms on which
! the grievor was underpaid in accordance with our interpreta-
tion of Arts. 3.4 and 7.7.
- We have concluded that on and after February 3, 1992,
the Ministry was obliged to either negotiate an "arrangement"
regarding compressed work weeks for unclassified employees,
or to pay the overtime rate for hours worked in excess of the
scheduled hours for e~ployees who work on a regularly sche-
duled work day exceeding eight (8) hours under Art. 3.4( b)
and in excess of their regularly scheduled work weeks under
Art 3.4(c). This was a major change which affected the grie-
vor's entitlement to overtime during the last approximately 8
weeks of the grievor's employment. Apparently neither the
! Ministry nor the grievor was aware of the impact_ of the
: amendment to the collective agreement on their respective
-
obligation and entitlement The attendance records back to
i February 3, 1992 are still available. The employer did not
\
j indicate that the payrol~ records back to that date were not
retr ievai::He . In view of the lack of consistent reflection in
Ex. 5 of either Supt. Brunton's understanding 'ofthe policy
or our interpretation of Art. 3.4(b) and ( c ), some underpay-
ment of overtime appear~ likely to have occurred both before
and after February 3, 1992. ---
The panel concludes, in view of the amendment to Art.
_._~ ,_,.__ 3..16 in the collective agreement effective February 3, 1992,
that it would be inequitable to permit the Ministry to rely
upon the twenty-day rule for the period after February 3,
1992. To do so would authorize the em lo er to resile from
i
~
... ~
.~),
'" '<< 71
its obligations under the collective agreement because of the
grievor's lack of subjective awareness of cause for complaint
flowing from an amendment of the collective agreement, the
i~pact of which neither the Ministry nor the grievor was
aware. The panel concludes that it would not be inequit~ble
to permit the Ministry to rely upon the rule with respect to
the period prior to February 3, 1992. The grievor will have
v
to absorb any loss due to lack of proper payment of overtime
before February 3, 1992, and t~e Ministry will have the bene-
fit of not havin~ to review its records and possibly 'having
\
to pay overtime for that period. However, as the employer
negotiated the amendment, on balance,_ equity and fairness
require it to honour the impact the amendment had on, its
overtime obligations
We therefore direct the parties to review the payroll
records and attendance repor,ts and to determine the grievor's
overtime entitlement from February 3, 1992 to the last day of
his employment, in accordance with our interpretation 9f Art.
3 4(b) and (c) and Art. 7.7. In the event that they deter-
mine that the grievor was improperly paid for overtime, we
direct the employer to pay the grievor any underpayment of
oVt!rtime, with interest to the date of payment. We will
remain seised with respect to implementation.
-- - - -- ~
C. Discrimination:
i) This Board's Jurisdiction:
Art. A 1 1 of the collective agreement provides:
There shall be no discrimination practised by rea-
- son of race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, sex, sexual
orientation, age, marital status, family status', or
handicap, as defined in section 10(1) of the Onta- --.--- --
rio Human Rights Code (OHRC).
s. 45(8) of the Ontario Labour R~lations AC~, R.S.G.
.
r- , . . ., , .
-
'-' ~ 72
An arbitrator or arbitration board shall make a
final and conclusive settlement of the differen~es
between the parties and, for that purpose, has the
following powers:
.' .
3. To interpret and apply the requirements of
human rights and other employment~related
statutes, despite any conflict between those
requirements and the terms of the 'collective
,agreement
CECBAr 1993 received royal assent on February 14, 1994.
Thereafter. s. 7(1) of CECBA. 19'93 made s. 45 of the Labour I
Relations Act applicable to the Grievance Settlement Board, I
"subject to the modifications set out in" that section. The
facts giving rise to these grievances were completed in Au- I
gust or 1992. Although CECBA. 1993 may confer some broader
and more specific procedural jurisdiction on boards of arbi-
tration which may apply to pre-1994 matters, it does not
clearly confer substantive jurisdiction upon them retrospec-
tively. We conclude that our jurisdiction is the jurisdic-
tion that the GSB had when the facts giving rise to the grie-
vance arose, and that it had on the date of the gr~evances.
Art A.1.1 was in the collective agreement when those events
occurred, and the Board's jurisdiction in respect of the
grievor's first grievance (dated August 28, 1992, re Art. A)
is derived from Art. A of the collective agreement, and not
from the Human Rights Code.
The principles and reasoning in the human rights cases
which have not been set aside by our courts, and which are
based on facts s~ilar to the facts being considered by the
GSB, where persuasive, may and should be used to supplement
the GSB's procedural and arbitral jurisprudence The GSB is
an administrative tribunal which is charged under the collec-
tive agreement with the responsibility 'of determining whether
discrimination has--occurred under the heads set out in the
Human Rights Code. The human rights boards of inquiry are
admini~trative tribunals specialized in making such determi-
,
.
r
~
l.
l' 0 73
the parties' collective agreements, and those concerns in-
clude discrimination. In view of the foregoing, we can think
-, of no reason why Ontario human rights board of inquiry cases,
where compelling, should not be considered.
until August of 1992, when the facts giving rise to
these grievances were completed, the GSB had, and in our opi-
nion, continues to have a broad remedial jurisdiction (see
Millet and McPhail, and Anderson, supra), which would include
where appropriate, the remedies given by the Code to boards
of inquiry. Its broad remedial jurisdiction would exist
without a GSB panel determining that it is a human rights
board of inquiry by virtue of the Labour Relations Act, or
that its jurisdiction arises because it is functioning under
or applying or interpreting the Human Rights Code The GSB's
broad remedial jurisdiction was established prior to the
authority conferred upon it by CECBA. 1993 and s. 45(8)3 of
the Labour Relations Act ,and was not restrained in any way by
those enactments.
ii) The Burden and Standard of Proof in Cases Alleging
Article A violations:
In a case alleging discrimination on grounds prohibited
-- - -..-
under the Human Rights Code, the burden is on the party so
alleging to establish a prima facie case of discrimination,
qt which point the burden of proof shifts to the responding
party to establish that the decision or action alleged to
have been discriminatory was based on considerations which
were not discriminatory. The burden remains with the party
alleging discrimination to establish, on balance of probabi-
lities, that the responding party's explanations "are not to
- D/179" paras
be believed": waterman, supra, 13-14. If dis-
crimination on the prohibited grounds "played.. a role and was ___._
a proximate cause" of the challenged decision or action, the
party alleging discrimination is not required to demonstrate
that discrimination was the onl basis of the decision or
---- .--. -- .-
'i' ;., 74
action. ;'If the actions were tainted by discrimination, the
Code was breached": Waterman, supra, D/179, para. 16. The
same decision stated:
An inference of discrimination may be drawn where
the evidence offered in support of it renders such
an inference more probable than the other possible
inference or hypotheses See Basi v. CNR Co. (No.
1) (1988), 9 C.H R.R. D/5029 at D/5n38 (Can Trib.);
Viskelety, l.c, p. 142; Sopinka, Lederman and
Bryant, The Law of Evidence in Canada [Toronto:
Butterworths, 1992]; pp. 37 ff
It is the nature of many human rights cases that I
the reasons for alleged discriminatory actions must \
often be inferred because they have taken place in
private, away from other people's observation, or
because they deal with motivations.
In the earlier Broere case, supra, ~t p. D/4192, Commis-
sioner Knopf stated that although the primary reasons promp-
ting a decision to dismiss was "the legitimate reorganization
of the clerical staff to reduce the number of personnel",
once an inference of discrimination is raised, if
only ,one of the reasons for choosing to dismiss an
employee is her marital status, the Code has been
violated, regardless of any other reasons for that \
decision. See Iancu, supra at paragraph 10618.
Further, the explanation offered by the company to
rebut an inference of discrimination must be cre-
dible on all the evidence, not just the offering of
a rational alternative. See Mitchell v. Nobilium
Products Ltd. (1982), 3 C.H.R.R. D/641 (Ont., R.W. -
Kerr) .
In McAra, supra, although the complainant's degree of
experience was "the primary reason" for declining her employ-
ment, Commissioner Simmons stated:
I nevertheless do not accept this explanation as
being his sole reason for not seriously considering
the, complainant's application The evidence re-
veals a strong determination by Mr. Constance not
to have a female employee in the warehouse. Even
if I were to accept Mr Constance's explanation as
being the primary reason for-not employing the com-' -- - -
plainant I remain of the view that another reason
for not hiring her was due to her sex. This latter
reason need not be the primary reason It need
onl form a art of the reason. As stated in Ser-
.
. 75
'\' .
vodyne Canada Ltd. (1986), 8 t H R.R. 0/3874 (S6--
berman) [at D/3877~ para. 30782]
I
Discrimination based on sex, prohibited by
section 4(1) of the Human Rights Code, need
not be the sole or even the dominant factor in
the treatment of a .complainant. It is enough
that sexual discrimination was a material
element in the decision to dismiss . . and the
evidence here establishes that it was.
This approach has been follow.ed by boards of in~
quiry in a number of instances. It was also appro-
ved by the courts in R. v. Bushnell Communications
Ltd. (1973), 45 D.L.R (3d) 218 {Onto H.C.) per
Hughes J. at 223, aff'd (1974), 47 D.L.R. (3d) 668
(Ont. C.A.) per Evans J.A.
We agree with the foregoing approaches and conclude that they
should be applied in determining whether an Article A
violation has occurred.
iii) Damages:
In Ontario Human Rights Commission cases, supra, damages
were awarded to the complainant where the infringement of the
Code injured his/her dignity and demeaned his/her identity
based on sex and marital status i e. .statutory heads of dis-
, crimination. Back pay was also awarded where the employee
-~-- _.- had been dismissed for reasons which were found to have been
tainted by discriminatory motive(s). In assessing the amount
of general damages, the Commissioners considered the fact of
re-employment after an initial lay-off for discriminatory
reasons, and the length of the lay-off: Broere, supra, at p.
D/4192. In Broere, where the complainant was laid off for
two months before being re-employed on a permanent basis,
damages were assessed at $500.00. In waterman, supra, a per-
manent dismissal, general damages were assessed at $3,000.00
We conclude that where all the circumstances of the case
- ---- ~ -----
warrant, in keeping with the general principles of damages,
this board has the jurisdiction, in appropriate cases, to
=
. 76 "
~
compensate a grievor for injury to dignity and demeaning of
identity under the heads of discrimination in Art. A.
iv) Jurisdiction re Remedy:
/
As stated previously, this board has a broad remedial
jurisdiction.
In Riverdale, supra, the Board rejected "the submission
'that we are without authority to interpret and apply the
provisions of the Human Rights Code in connectiqn with this
grievance by virtue of the fact that the events giving rise
to the grievance took place prior to the effective date of s.
45(8) of the Labour Relations Act", on the basis that the Act
did not "alter the substantive obligation of the employer ,to
comply with the Human Rights Code" and the amendments to the
Act only altered "the forum in which those obligations are -
considered" . It rejected the submission that its authority
did not extend to t~e enforcement qf the provisions of the
Human Rights Code. It stated, at p. 70, supra, that since s.
45(8)3 obliges boards of arbitration to "interpret and apply"
Human Rights Code provisions "despite any conflict between
those requirements and the terms of the collective agree-
ment" in the context of determining grievances under collec-
tive agreements notwithstanding conflicts between the agree-
ment and the Code, it therefore "can only be interpreted as
an obligation to enforce .." the provisions of the Code.
Similarly, we note that when the grievances were filed
the employer was required to comply with the both Human
Rights Code and the collective agreement. The fact that s.
45(8)3 became applicable to this boa+:"d after the grievances
were filed does not preclude this board from considering whe-
ther the employer's conduct has complied with both the agree-
ment and the Code. Art. A 1.1 incorporates by reference _ cer- ___
tain definitions in s 10(1) of the Code. We do not inter-
pret that incorporation to mean that the parties thereby in-
tended to exclude consideration of the other provisions of
,~
'i' 77
" .
the Code before or after CECBA. 1993 came into effect, or
that the GSB's remedial jurisdiction excludes the approaches
of boards of inquiry under the Code. We are of the view that
the dates of the grievances do not in and of themselves limit
the scope of the remedial jurisdiction of the GSB, which the
Divisional Court has indicated is fairly broad.
In Anderson, supra, Arbitrator Stewart confirmed that
under s. 19 'of CECBA the GSB's remedial jurisdiction is
broad. In that case the employer's actions against a super-
visor who had sexually harassed the grievor were grieved as
inadequate. ~rbitrator Stewart noted that the focus should
be on remedy, ~ather than punishment, and the least intrusive
remedy possible which is sufficient to remedy the violation
should be imposed. She directed the employer to remove the
supervisor from his supervisory position in that location,
with the proviso that the circumstances of his removal not be
viewable as a benefit to him, e.g. a promotiqn. She left the
manner of implementation up to the employer, and directed the
employer to provide training in respect of appropriate res~
'- ponses to sexual harassment for members of the bargaining
unit. She considered remedies under the Human Rights Code s
44(1) (monetary penalties) and 41(2) (monitoring) and deter-
I
mined that they were not appropriate in the circumstances of
--
that case (p. 39-40, supra), but did not exclude them.
In Howe. Dalton and Loach, supra, a sexual harassment
case which directly addressed the GSB's remedial jurisdic-
tion, Arbitrator Dissanayake concluded at p. 22
. .that, if based on all of the evidence the Board
concludes that it is absolutely necessary to direct
the empioyer to take specific disciplinary action
against a member of m~nagement, in order to remedy
a grievance, it has the jurisdiction to do so. Be-
cause such an order is absolutely necessary, it is
remedial in nature, and within the Board's juris-
~- -- -- -_.._.~------_.- -"-- diction. The fact that such an order may have the
incidental result of penalizing the member of ma-
nagement, and of encroaching into areas reserved to
the employer as exclusive management rights, does
not mean that the Board must decline to exercise
:
;,
.' 78
its authority to remedy a violation of the collec~
tive agreement found to exist.
The Anderson decision did not directly address the issue
of whether a GSB board of arbitration had the jurisdiction to
apply the remedies under the Human Rights Code. Arbitrator
Stewart's analysis and application of remedies in that case,
and Arbitrator Dissanayake's remarks support our conclusion r-
that where the circumstances are appropriate, the remedial
jurisdiction of the GSB, 'whether under s. 19(1) of CECBA or
under CECBA. 1993 and the Labour Relations Act is broad
enough to encompass the remedies found in the Code, without
designating or characterizing the GSB as a board of inquiry
under the Code.
v) Estoppel:
In Miller, supra, the union characterized the employer's
long-standing practice of discussing the possibility of t~ad-
ing employees' assignments with both the employees as an un-
dertaking or representation that such switches or trades
'would not be effected without prior discussion with and con-
sent of both em~loyees. Arbitrator M9Camus concluded that
the practice did "pot constitute the kind of undertaking re-
quired to engage promissory estoppel doctrine". He also said
"It must be shown that it was anticipated that the promisee
would act upon the promiser's undertaking in ordering its own
affairs and further, that the promisee did so act" and found
that there was no evidence of detrimental reliance of that
kind. He said "it would be quite incons,istent with the
letter and spirit of Section 18 to hold that the doctrine of
promissory estoppel could have the effect of turning a rea- -
sonable practice followed by the Employer with respect to a
-, _. Section 18 matter into a policy binding upon the Employer as
if it were contained in an article of the Collective Agree-
ment and could form, therefore, the subject matter of a grie-
vance within the jurisdiction of this Board". He concluded
J
-- .--
'it
~ . 79
that the board did not have jurisdiction to hear the grie-
vance and dismissed it
The reasoning in the above-noted case does not support
the conclusion that in all cases involving a s.18(1) right,
the doctrine of promissory estoppel does not apply
In Brummell, supra, the estoppel argument was rejected
primarily because the representation as to the transferabili-
ty of the grievor's pension was made to him before he was an
employee, such that the claim was not based upon a violation
which occurred when the collective agreement applied, but on
events falling before it applied, and the board was of the
view that that deprived it of jurisdiction Those facts are
not present in this case.
Lord Denning's statement of the elements of promissory
estoppel in Combev. Combe, [1951] 1 All E.R. 767 at p. 770
is set out at p. 422 of the Pacific Press case, supra:
The principle, as I understand it, is that where
one party has, by his words or conduct, made to the
other a promise or assurance which was intended to,
affect the legal relations between them and to be
acted on accordingly, then, once the other party
has taken him at his word and acted on it, the one
who gave the promise or assurance cannot afterwards
be allowed to revert to the previous legal rela-
tions as if no such promise or assurance had been
made by him, but he must accept their legal rela-
.. tions subject to the qualification which he himself
has so introduced, even though it is not supported
in point of law by any consideration, but only by
his word. I
This equitable principle has been applied in labour relations
settings, but has, in the context of this board, been stated
to apply oply as between the direct parties to the collective
agreement, i.e. the employer and the union.
vi) Conclusions re Article A grievance:
----- --- _.
The Art. A. grievance states
\
.:t.
0 80
'i' .
I grieve wrongful dismissal~ discrimination,
harassIDentand intimidation by the management of
tpe Stratford Jail
and requests the following settlement
Immediate re-enstatement (sic) as a casual cook II
at the Stratford Jail with full retro-active (sic)
pay from August 17, 1992. .
We conclude that throughout his employment at the Strat-
ford Jail the grievor was subjected to unwanted and unwarran-
ted derogatory comments, remarks, jokes, etc. about his
appearance, his cooking, and on the night of the incident at
Bentley's, among other things, about his ability to defend
himself, by Shift Supervisor Terry Willliams. We_ conclude
that Mr. Williams' comments were abusive, rude, disrespectf~l
and despicable. We conclude that most of them mentioned or
were related to the 'grievor's ethnic origin and place of
,~ origin.
During the Bentley's incident, Mr. Williams referred to
the grievor as a "short fuck" (Ex. 12, p. 4) . The grievor
identified Mr. Williams' use of that expression as alluding
to his ethnicity. The board notes that people of Mediterra-
nean origin, including those of Italian background, who may
be of shorter stature than those who wish to subject them to
derogatory comments., are referred to by reference to their
- .-~ - -- - -
i height, without reference to their specific ethnicity, but
there is no doubt that their ethnicity as well as their
height is being referred to pejoratively. A slur on their
height is, for all intents and purposes, and in this context,
a slur on their ethnic origin--i.e. an indirect ethnic slur.
The fact that the grievor did not specifically identify
to management that he was experiencing discrimination or ha~
rassment based on his ethnicity or place of origin, reflects
his lack of familiarity with the language of discriminatory
offences, and his lack of awareness or_ s'Ophistication~ with____ -, - ---
respect to his right to freedom from such conduct in the
workplace, and with respect to how to assert that right.
- -,
~ )
.
" " 81
The questions posed and the answers given during the
hearing demonstrated that the grievor and others involved in
this case experienced difficulty differentiating between ra-
r cial discrimination and discrimination based on ethnic ori-
gin. It demonstrated that a victim of harassment and discri-
mination based on ethnic origin, who is not strong ip English
composition and spelling, may understandably be reluctant to
create a written record, and may require some encouragement
and support to do so. We conclude, on balance of probabili-
ties, that the grievor was afraid to write his complaints for
fear that he would be challenged as to what occurred on the
basis of a less-than-perfectly-expressed written statement,
and subject to further ridicule and humiliation. We conclude
that management's requirement of a written complaint and the
grievor's unwillingness to provide one contributed to the
maintenance of Mr. Williams' ongoing and recurrent harass-
ment of ,and discrimination toward the grievor.
We conclud~, albeit with the benefit of 20-20 hindsight,
that each time Mr. Chircop verbally reported harassment to
management, management could and should have explained to him
clearly that if he put the incident in writing, it, manage-
ment would investigate, and if his statement were confirmed,
management would stand behind him and take steps to eliminate ---
the behaviour to which he was being subjected. It could also
have encouraged him to see a union representative to assist
him with the documentation of his complaint. Because Supt.
_. Brunton did not indicate any doubt or disbelief of the grie-
vor's complaints about Mr. Williams, we conclude that an in-
vestigation could have been conducted without a written com-
plaint, and witness(es) sought, and if Mr. Chircop's com-
plaints were corroborated, Mr. Williams-'could have been con-
fronted, counselled, and if necessary, subjected to progres-
~, - - --- - sive discipline. - -- -----------~- --~~-_._._--
The board also concludes that an element of the grie-
vor's reluctance to provide written complaints of Mr wil-
liams' conduct was based on his con~~rn that suc~ complaints
-- - - --
'-
- -
-
,
-.. ,
~
'i' ;; 82
would cause him to appear weak and "unable to take it", in an
environment where psychological strength, if not insensitivi-
ty to insults, are highly valued. Jails are environments in
which inmates, deprived of power in the conventional sense,
resort to racial and ethnic slurs to bait and annoy their
custodians. Unfortunately, the ability to respond to such
slurs with counter-slurs is also a source of some esteem
among custodians as well as inmates, and both inmates and
custodians engage in such "repartee" as a means of coping in
the institutional environment and in order to avoid appearing
to have "taken" or accepted an insult without answer. This
kind of behaviour should be discouraged among correctional
staff as well as inmates, as unrealistic as that suggestion
may appear to be. It is unprofessional behaviour, whether
engaged in by bargaining unit staff or management, and where
tolerated, can and does lead to the difficulties the grievor
faced, not only with Mr. Williams, but in establishing a po-
sitive work record and objective assessments on his personnel
file. An employer who knowingly permits bargaining unit or
management staff to engage in bullying behaviour in the work-
place runs the risk of being responsible for the consequences
if the employee's behaviour crosses the line into areas which
offend the Human Ri9hts Code. -- - -- .-.-
-- An employee's inability to specifically identify the
offending behaviour as discrimination based on ethnic origin
and place of origin does not derogate from the employer's
\ obligation to investigate and, if possible, verify and iden-
tify the nature and quality of the alleged comments' and re-
marks. That obligation is particularly strong when, as here,
it receives repeated verbal complaints, and is aware, as
Supt. Brunton indicated that he was, that the Supervisor com-
plained of engages in this kind of verbal abuse.
-- - We conclude that the fact th~t Mr. Williams was-'-believ~- --~-
ed to have been suffering from a~cholism, a condition which
has been considered to be a disability, did not give him a
li(;ense to be disrespectful to aI.ld to discriminate against -- --
:>
; 83
--
the employees he was supervising, on the basis of their eth-
nic origin and place of origin, and did not relieve the
employer from its responsibility to investigate, etc., the
verbal complaints it received. We understand and sympathize
with the difficulty that such a situation creates for manage-
ment, and the possibility that management may have wished to
avoid a confrontation and a conflict between the needs of Mr.
Williams for accomodation for his disability and the needs of
the grievor not to have to endure disrespectful, abusive and
discriminatory remarks. However, we note that if Mr. Wil-
liams had raised alcoholism as a defense to any form of prog-
ressive discipline, management may have responded by placing
him on a non-disciplinary leave-of-absence or on sick leave
until he obtained treatment, and if he failed to utilize the
treatment and returned and continued his offensive and inex-
cusable conduct, management would have been in a position to
impose further discipline, up to and including dismissal.
We conclude that the fact that other employees may also
have been the target of Mr. Williams' verbal abuse, and the
fact that some of Mr. William's verbal abuse of ~nd derogato-
ry remarks to and about the grievor were not directly attri-
butable to Mr. Williams' opinion of the grievor's ethnicity
and place of origin, i.e. the fact that his remarks took the
--~'---
form of both direct and indirect discrimination on the basis
of ethnicity and place of origin, did not cancel or diminish
the employeris obligation to take fi~ steps to bring Mr.
Williams' behaviour under control.
In McKinnon, supra, at p. 26, Arbitrator Gray noted that
/
employers are liable for the misconduct of their employees
where they are aware of the misconduct and do not take rea-
sonable steps to bring it to an end. He considered the fol- ~-~.
lowing passage from Simm~ v. Ford of Canada (June 4, 1970)
~'--- --- ------Krever- (Board of Inquiry), pp. 15 - 16 --. .- --
. .. an employer who, ... employs a person and then
stands by idly in the knowledge that his superviso-
r~personnel , or i~deed, any employe7s, ~re ma~ing
- u
..
~ )
84
terms with reference to his colour or race, vio-
lates the Code. In those circumstances, it may be
said that the employer is discriminating against
that person with regard to a condition of employ-
ment because of his race or colour. Indeed there
may even be an obligation on an employer to take
positive steps to prevent the occurrence of such
conduct; the mere announcement of a policy against
conduct of that kind may be insufficieqt. . . .
The foregoing passage applies equally to this case,
where the grievor was subjected to insulting remarks refer-
ring to his ethnic origin and place of origin, rather than
colour or race, and where at one point the employer sent a
letter to the entire staff regarding racist remarks and inap-
- propriate comments in the workplace, which was evidently in-
sufficient
At p. 27 in McKinnon, supra, Arbitrator Gray noted that
in Dhillon v. F.W. Woolworth Company Limited (1982), C.H.R.R.
D/743 (Cumming), Prof. Cumming found that management's "over-
all attitude was that verbal racial abuse was an inherent, if
unsatisfactory, incident of the warehouse work environment".
Supt. Brunton made some effort to express disapproval of the
use of derogatory marks about ethnicity and race in the Jail,
J and to discourage its use, through a letter and informal
counselling, and through his efforts to discipline Mr. wil-
- liams. Although he expressed sincere disapproval of Mr. wil-
liams' behaviour and of such behaviour in genera~, his evi-
dence suggested a degree of helplessness in the face of and
resignation toward, though not acceptance of, Mr. Williams'
- -
and others' use of derogatory remarks which could be charac-
terized as discriminatory under Art. A.1.1 He recognized
the situation as unsatisfactory and that it was especially
troublesome where the source of the discriminatory behaviour
was a member of management who was in an indirect supervisory
role in relation to the grievor.
,. . - -' ~ We conclude, in view of the foregoing, and on all of the --
evidence, that management knew that its Shift Supervisor, Mr.
Williams, was making derogatory comments, remarks, jokes,
.
--
--
(J 85
rectly related to the grievor's ethnic origin and place of
origin, within a few months of Supt Brunton assuming the
position of Superintendent of the Stratford Jail. We con-
clude that management knew or ought to have known that Mr.
Williams' remarks, comments, jokes, etc. constituted discri-
mination contrary to Art. A.1.1. of the collective agreement
and constituted discrimination and harassment contrary to the
Human Rights Code. We conclude, on the evidence, that
management received numerous verbal complaints from the grie-
vor and others about Mr. Williams' behaviour toward the grie-
vor both before and after the Bentley's incident and took no
steps to investigate and curtail tn_ose incidents. We COI)-
clude that management did not take reasonable steps, in the
sense of investigative and, where evidence supported it, di-
rect action with respect to Mr. Williams, to curtail Mr. Wil-
liam~' discriminatory behaviour toward the grievor except
when the grievor submitted a written report.
We conclude that the fact that the Workplace Harassment
and Discrimination Policy (WHDP) may not have been "implemen-
ted until after the facts giving rise to this grievance took
place did not diminish or cancel the employer's duty to take
reasonable steps to intervene and ensure the non-repetition
of discriminatory conduct of this nature. Although the WHDP
---
::~:~. may not yet have been implemented, in addition to its obliga-
tions under Art. A.I 1., the employer was obliged at that
time under s. 5 of the Human Ri9hts Code to take reasonable
steps to maintain a workplace that ensu~ed both equal treat-
ment with respect to employment (which includes working
conditions) without discrimination, as well as freedom from
harassment, because of ethnic origin and place of origin.
We conclude that in view of management's awareness of
ongoing and recurrent verbal abuse of this nature by Mr. wil-.
liams toward the grievor, of which_It_was aware, while it was ___
aware at the same time of a general "poisoned work environ-
ment" , it was not reasonable of the employer to take no in-
vestigative and other steps until the grievor filed a writ-
-- --
- -------
~
.
'0
.. 86
ten complaint, and upon receipt of further verbal complaints
from the grievor, to take no investigative steps thereafter.
We therefore conclude, on all the evidence, that the
employer violated Art. A.l.l. for having been aware of and
having pe~itted the ongoing and recurring discriminatory
conduct of its agent Shift Supervisor Williams toward the
grievor based, on the grievor's ethnic origin and place of
origin.
The more challenging matter is whether the employer's
conduct up to and during the competition and its failure to
renew his Appointment to the Unclassified Service after the
competition constituted di~crimination.
S. 9 of the Public Service Act provides:
A person who is appointed to a position in the
public service for a specified period ceases to be
a public servant at the expiration of that period.
As, on its face, the grievoris last Appointment expired on
July 31, 1992, that would appear to put an end to the matter.
Each of thegrievor's Appointments (Ex. 7) stated
Authorized Hours of Work as required up to 40 hours
per week.
Services may be terminated on one (1) week's notice
by employer or employee.
The Appointments, on-their face, suggest the employer can
terminate the grievor's employment on one week's notice,
without limiting the reasons for the termination. That may
also appear to put an end to the matter. (
In Houston/Campbell, supra, upon which the employer re-
lies, which was decided on December 3, 1993, Arbitrator Veri-
ty adopted the reasoning of the Divisional Court in Par~,
237/ 91 (Low), Porter, 428/90 (Brandt), Singh, 721/89 (Kirk-
wood) and Lavoie, 441/91 (Keller), and concluded:
- having regard_to the judgment of the Court ...
there is simply no remedy for the non-renewal of a
term contract made pursuant to sections 8 and 9 of
the Public Service Act. We are satisfied that to
fashion a re~edy.w~u~d be contra:y to t~e judgment
-~-- ,-
"'
. 87
The decision of the Divisional Court in Lavoie would also ap-
pear to put an end to the matter.
However, the Divisional Court's and the GSB's subsequent
decision in Miller & MacPhail, supra, as well as in Grummett,
supra, and Anderson, supra, suggest that the expiry of the
period of the Appointment may not, in certain cases, be an
end to the matter.
In Miller & MacPhail, supra, the GSB panel determined
that the terminations of th~ employment of the grievors, who
were part-time unciassified COs, were not bona fide releases,
but were dismissals without just cause and determined that
Art. 3.11, which was found in the section of the agreement -
titled "Seasonal or Part-time Employees" provided
Employment may be terminated by the Employer at any
time with one (1) week's notice, or pay in lieu
thereof.
limited it to a remedy of one week's payor one week's no-
tice. Its determination that Art. 3.11 prevented it from re-
instating the grievors and making an award for lost wages was
judicially reviewed and the Divisional Court remitted the
matter of remedy to the GSB. At p. 3, supra, the board set
out the opinion of the Divisional Court:
the Board impliedly erred in jurisdiction pursuant
to the Act [The Crown Employees Collective Bar9ain- ----- ..,.....
ingAct (CECBA), R.S.O. 1980, c. 108]. That is,
the Act clearly provides for discretion to fashion
a remedy for the applicants in the circumstances.
The Divisional Court was of the view that s. 18(2)' and 19(1)
of CECBA gave the Board the discretion to which the above
passage refers. In re-considering remedy, the Board consi-
dered the length of the grievors' continuous employment under
contracts (about 4 - 5 years), the average number of shifts
per month during the several months in which the grievors
last worked, the interaction of the Public Service Act,
-
CECBA, and the collective agreement. It expressed the opi-
nion, at p 15, supra, that s. 19(1) of CECBA confers "broad
- -,,- -.
~
'i' ~ 88
remedial authority to fashion an appropriate remedy in all
\
the circumstances" upon the board. It said, at pp. 15 - 17:
In the absence of just cause for dismissal,
the usual remedy is reinstatement with compensation
for all lost wages and benefits. The purpose of
this remedy, of course, is not to penalize the Em-
ployer for a bona. fide mistake, but to place an in-
nocent party in the same position he or she would
have been in but for the Employer's action.
.. In our opinion, the Board does have the
remedial authority to reinstate the Grievors with
full compensation. The question, however, is whe-
ther it would be appropriate to do so in these cir-
cumstances. . . .
The significant fact in this case is that
there was no evidence of any blameworthy copduct on
the part of the Grievors. ... terminated for the
sole reason of their lack of availability to attend
at the workplace. Superintendent Dagenais acknow-
ledged that he did not warn either Grievor that
lack of availability for work could lead to termi-
,nation of employment. There was no evidence that
either Grievor was warned of the possible conse-
quences. . . . ~
In the absence of such evidence, the Board
cannot conclude by way of an assumption that Miller
and MacPhail would not have been reappointed to the
public service subsequent to the termination of
their appointments on March 31, 1983. . . .
... But for the dismissals, the Grievors may
well have been reappointed to the public service
~ and subsequently reappointed up to and including
-- - the present date. As indicated previously, this is
i not a case where a term appointment has been allow-
ed to expire in the absence of a further appoint-
ment.
The Board reinstated the grievors as unclassified COs for the
)
remainder of the period of their last appointments to which
they would have been entitled but for the dismissals, and
awarded them compensation from the date of dismissal to the
date of reinstatement, on the basis of the average number of
--,
shifts each had worked in the last several months prior to
their dismissals, and with interest, calculated in accordance
with, the Hallowell House formula. It expressed the view that -- -
it had "attempted to devise a meaningful and appropriate
remedy in this prolonged matter", to "place the Grievors in
ion as they would have been in, but for the
/'
'io
. 89
Employer's actions" and "compensate them for the lost oppor-
tunity to demonstrate suitability for reappointment".
We note that in Miller and'MacPhail, the grievors'
Appointments. were terminated prior to expiry The situation
was not one of failure to renew an Appointment, as here.
In Grummett, supra, the grievor was a Financial Officer
1, who had from time to time acted as a Financial Officer 2.
In June of 1986, at age 65 and in '87, '88 and '89 she was
granted a serie~_ of one-year "overage appointments" pursuant
to s. 17 of the Public Service Act. In February of 1988 she
was appointed to an acting FO 2 position, replacing the in-
- cumbent who was ill, and remained in the acting position
until her appointment expired. Another person was appointed
to the grievor's FO 1 position. The grievor and the person
appointed to her FO 1 position were among the candidates in a
competition for the FO 2 position; the latter was successful
in July of 1988. The employer decided in July, 1988 that the
grievor "lOuld remain an acting FO 2 "until the expiration of
her t,erm which would not be extended as it had in the past II ,
and did not inform the grievor of its decision. The FO 1 po-
sition was filled from the surplus list, leaving an overcom-
plement of one. In March the grievor sought and was denied
-- an extension of her appointment. She was advised that an ex~
tension could be granted fdr special circumstances. The only
examples of "special circumstances" provided to her were
related to business considerations. The board decided the
issue on the basis of a lack of procedural fairness to the
grievor, relying on the reasoning in Knight v. Indians Head
School Division No 19, 30 C.C.E.L. (S.C.C.) . The Board
held, at p. 10, supra, that the grievor was never told, then
or later, of the decision of the Director of Administration
and Systems Services when shewas not ~uccessful in the com-
peti,tion that she would be retained as an FO 2 for "compas- - -~ - --- -
sionate" reasons until the end of her one-year extension
which would not be renewed. It held that she was thereby
-:
'.'
. 90
opportunity to advance reasons on her own behalf to try to
alter that decision, including a suggestion by her that she
return to her FO 1 position so that the same complement could
exist as had been the case in previous years.
The Grummett board enunciated the principle in Indians
Head that where the employee can be dismissed "at pleasure"
"the affected person must know the reasons for the disconti-
nuance of employment". It noted that failure to so advise
the grievor on a timely basis and provide her with an oppor-
tunity for input which would have at minimum the possibility
of altering the result, set in motion a train of inexorable,
inevitable events. It stated that the failure to advise the
f grievor deprived her of "even the minimum standards of proce-
!
,
dural fairness" and directed that she be compensated for all
lost wages and benefits to the date on which her last pos-
sible contract extension would have expired, with interest.
Grummett suggests that where an employee's/contract has
not been renewed in circumstances which violate the minimum
standards of procedural fairness as considered by the Supreme
Court of Canada, the employer may not rely upon s. 9 of the
Public Service Act, and that the board has a remedial juris-
diction to exercise in such circumstances.
We are satisfied that in failing to advise the grievor
,
that once the competition for the classified RPT Cook posi-
F
tion was completed, ,there would be only one unclassified Cook
position left, the employer violated the minimum standards of
procedur~l fairness. This was a significant and regrettable
administrative lapse or oversight. We conclude, however,
that there was no evidence to suggest that the failure to
jinform the grievor was deliberate, or that Ms., Huitema had )
somehow been informed before the competition that only one
unclassified position would remain after the competition was
.~ filled. 4_ -- -- ---'---'- ---.-------- ----- .
In failing to so advise him, the employer left the grie-
vor under the impression left by Supt. Brunton's correspon-
dence that he had a osition to return to once the Jail re-
---
'4
;; 91
opened That failure deprived him of the awareness that his
employment could be discontinued and the reason it could be
discontinued i.e. the basis upon which the decision as to who
to recall would be made. It left him in a position where he
was unaware that there was anything he had to do, any steps
he had to take, any preparation he might do, in order to pre-
serve his employment. It caused him to be in a position of
unpreparedness for the competition, and, unknowingly, in a
disadvantaged position when Supt. Brunton determined that the
criteria he would use in determining who to recall would be
the competition results.
Had management advised the competitors that they were
being considered for the unclassified position, or invited
them to enter a separate competition for that position, the
chain of procedural unfairness would have been broken. It
would have provided each of them, and particularly the grie-
vor, an opportunity to offer information specific to them-
selves and the unclassified position that might have assisted
management in making its determination on a more equitable
and fair basis Unfortunately, that lapse in procedural
fairness went unrecognized inadvertently.
We are satisfied that Mr. persad would have received the
RPT Cook posit~~n, irrespective of any preparation the grie-
~' vor might have done for the interview.
However, we are concerned that Mr. Williams, as Shift j
Supervisor, was, ironically, responsible for ensuring a safe,
secure, 'harassment- and disc:rimination-free workplace. We
are concerned that despite the fact that his animosity for l
the grievor was generally known in the workplace and known t~-
management, for reasons not made apparent to us, Mr. Williams
was given the responsibility of filling out the grievor's
Appraisal Updates in October of 1989 and March of 1991 (Ex.
- -----,-~-- -------- 14 and 15), upon which others could and probably would rely
in assessing the grievor's job performance and suitability
for promotion or for a full-time CO position.
-.---.-- --~ --,--
,)
~
j.
" . 92
We accept Supt. Brunton's testimony that he did not rely
upon Mr. Williams' appraisal updates and did not place much
weight upon Mr Williams' criticisms of the grievor's cooking
skills. We are concerned, however, that the afore-mentioned
Appraisal Updates were permitted to remain on the grievor's
personnel file, and were not "neutralized" by any written
conunents by a member of management on the face of the Updates
or anywhere else in the, personnel file Because the Appr~i-
sal Updates remained there in that form, they would have ap-
peared objective and reliable to any person given access to
them who did not know and/or disagree with Mr. Williams' at-
-titude toward the grievor. We conclude that there was no
control over the effect of their tone and content upon Mr.
Hill's or Mr. McKenzie's perception of the grievor in th~
competition.
Supt. Brunton's evidence that Mr. Fournier made sniping
,
remarks about the grievor in the daybook and that Ms. Huitema
may have worked at Bluewater with Mr. Fournier, suggests that
Supt. Brunton was aware that Ms. Huitema got along with the
full-time cook better than the grievor. There was no evi-
dence that Mr. Fournier's sniping was based on prohibited
grounds. Irrespective of seniority, it would not have been
unreasonable for Supt. Brunton, who was responsible for the
day-to-day administration of the jail, to have preferred that
the one remaining unclassified cook position be filled by /
r
someone he knew would get along with the full-time cook,
rather than someone who did not get along with him. We con-
clude that the fact that Ms. HUitema placed higher in the .
competition than the grievor was only one of many legitimate
administrative reasons Supt. Brunton considered in deciding
to give Ms Huitema the one remaining unclassified position. "---
We are unable to conclude that he selected Ms. Huitema for
. . - -- ---- -- the unclassified position because he was out to "get" the
grievor and fulfilling a threat that the grievor would
"regret" not having given him a fuller report regarding
-- --..- -
0;
.
..
93
Christmas of 1991, or because he was furthering Mr. William's
or Mr. McKenzie's agenda regarding the grievor.
We infer, however, from the evidence as to Mr. Williams'
and Mr. McKenzie's friendship and camaraderie, that on ba-
lance of probabilities, Mr. Williams' attitude toward the
grievor impacted negatively upon Mr. McKenzie's score of the
grievor during the interview. We also infer from Mr. Par-
sons" uncontrad~cted evidence that while an Acting Shift
Supervisor, he had seen a memo from Mr. McKenzie which was
critical of the grievor, that Mr. McKenzie had a critical
opinion of the grievor before and at the time of the compe-
tition, independent of Mr. Williams' - opinion of him.
The evidence disclosed that the other competition panel
member, Mrf. Hill, was from Bluewater, where Mr. Fournier was
working during the renovations, and that Ms. Huitema may have
f
been working there as well. It is unlikely that Mr. Hill had
no idea who Mr Fournier preferred, as between the grievor
and Ms. Huitema. We are, however, unable to draw any conclu-
sion as to whether Mr. Fournier had any influence on Mr.
Hill's view and scoring of Ms. Huitema as opposed to the
grievor. The fact that others who have- an interest in the
outcome of a competition have some indirect influence on
panel members does not necessarily taint-the outcome of a
competition unless their input is determined to have been the
governing consideration and contrary to objective evaluation
of the qualities of the competitors. -
We conclude that Supt. Brunton did not view the grievor
as untrustworthy as a result of Mr. Fournier's concern about
missing roast beef. We conclude that Supt. Brunton was less
thgn pleased with the grievor's cooperation around memos with
respect to the conduct of other staff. However, we are un-
able to conclude that Supt. Brunton was inclined to and did
- -- in fact exact reprisals--on the ejrievor owing to his belief - --- - --
that the grievor had not been frank in his memo about the
conduct of other staff on Christmas Day of 1991, by not re-
ca ~.
I
I --.--
I ':'
~
. 94
The fact that the grievor placed last in the competi-
tion, yet was considered more suitable for employment as a
G.O Temp Cook than the other competitors whose scores had
previously been of such importance in determining who would
be given the remaining unclassified position raises doubt as
to the accuracy of the grievor's lowest placement in the
competition. From ~he tone and content of Mr. Williams' Ap-
praisal Updates, from Mr. Williams' relationship with Mr. Mc-
Kenzie, and from all the evidence, we conclude that the "poi-
son" which Supt. Brunton attributed to the work environment,
and which for the purposes of this case emanated from Mr.
Williams toward the grievor, subtly seeped into and tainted
the competition process and, on balance of probability, in
large part determined the grievor's lowest place in the
competition and that this was not recognized by the panel.
The decision to renew Ms. ~uitema's Appointment rather
than the grievor's occurred after the July 31, 1?92 expiry
date of the the grievor's last Appointment. However, the
"poison" to which the grievor was subjected and which seeped
into and tainted the competition results and, as we have
found, affected the placement of the grievor in relation to
others, occurred while the grievor was employed. To d~ny the
grievor consideration o~ its further e~fect after his
Appointment expired would permit the- defeat of his complaint
on a technicality, rather than on the merits 'That is con-
trary to the spirit and intention of Art. A, and would de-
feat its purpose.
We conclude that because management permitted Mr. Wil-
liams' discriminatory conduct toward the grievor to continue
unaddressed, with the exception of the Bentley's incident, ~-
I
the grievor's complaints continued. We conclude that as a
result of management not having taken reasonable steps to end
-- Mr. Williams'- discriminatory conduct, the grievor continued
to be a target of that conduct and that, on balance of proba-
bilities, when it came to exercising a fine discretion of ap-
pointment,managemen! v~~~~~_h~ as less attractive and con-
I
--- --..J
e
I
'-
~
. 95
venient an employee than Ms Huitema It is unlikely that
Supt. Brunton was aware of this, and we conclude that he sin-
cerely believed that he was uninfluenced by Mr. Williams'
discriminatory conduct toward the grievor and that he sin-
cerely believed that he relied solely upon the competition
results in selecting Ms. Huitema over the grievor for the
unclassified position. We conclude, however, that this view
of the grievor, tainted by his having been the target of Mr.
Williams, materially affected Supt. Brunton's decision as to
who he would appoint to the remaining unclassified position.
We conclude, therefore, that the decision to appoint Ms.
Huitema to the unclassified position was based upon competi-
tion results that were "tainted"by the effects of both dis-
crimination and the absence of fundamental procedural fair-
ness as well as a perception of the grievor as a less admini- \
stratively convenient employee, owing to his prior victimiza-
tion. We conclude that ma.nagement's selection of Ms. Huitema
over the grievor inadvertently and unintentionally maintained
and continued the discrimination the grievor had experienced
during his employment.
In view of the foregoing, it is not necessary to found .
the grievor's complaints on estoppel, and we will not deal
with whether the evidence established the pr~sence of each of,
-- -~- --
the elements, and whether the representation had to be made
as between the employer and the union in order for the doc-
trine to apply.
vii) Remedy:
We conclude that the overall situation calls for a
remedy. In fashioning one, we must consider the extent of
the harm done to the grievor, and, using the least intrusive
means, restore him to the position he would havebeen_in,_ but ______ _
for the employer's conduct.
The evidence that the grievor
ossible 9 oints for courses and his own
~. -~ . .-
'.i!!
,i.
"' . 96
I
his training and experience, i ..e. that he did not have exten-
sive specialized training or experience as a cook in an
institutional setting, suggests that if he had prepared for
the interview, he would not likely have placed as well as Ms.
~uitema in the competition. Nine is a significant proportion
of the 87 possible points in the competition. It is impos-
sible to predict with any accuracy how many further Appoint-
ments as an unclassified part-time cook the grievor might
have received, but for the combination of unfortunate circum-
stances that lead the employer to prefer Ms. Huitema for the
one remaining unclassified position.
We do not have sufficient reliable information with
regard to the grievor's supervisory and custodial qualities
'--- to second-guess whether, but for Mr. williams' Appraisal
Inputs, the grievor might have been in a position to qualify
at some point for a co position. As the evidence did not
question the object~vity or accuracy of the grievor's Per-
formance Appraisal (Ex. 11), we accept it as such. We note
that the grievor did not indicate that he wished to be consi-
dered for a co position some time in the future in Section 5
of that appraisal, which is provided for that purpose. How-
ever, under "Additional training and development recommen-
ded", the appraiser(s) wrote that he would benefit from a
- - .-
special custodial training course and one on report writing.
The evidence did not disclose whether the grievor pursued
those courses. We find the evidence som~what inconclusive as
to both the intensity of the grievor's aspirations to a ca-
reer as a CO and as to the likehood of his being successful
in that area, aside from Mr. williams' conduct and its impact
upon how the grievo~ was perceived. We are therefore unable
to conclude that but for Mr. Williams' conduct, the grievor
would have successfully pursued a career as a CO
The grievor's evidence did not_indicate th~t the mental
anguish and frustration he experienced from the insults Mr.
Williams delivered impacted upon him psychologically in his
personal life during the approximately 30 months he was em-
-~-_. .- ,~----~-
~~-
"'
.~ ;;- 97
'I
I
ployed at the Stratford Jail. It suggested that during that
period, he experienced frequent stings and attacks upon his
dignity as a person and on his ethnic identity while in the
workplace, but that the effect did not follow him outside the
institution, except on one occasion at Bentley's restaurant.
The evidence suggests that the grievor's experience in the
wo~kplace was made more unpleasant by Mr. Williams' conduct!
\
toward him, and that ultimately he suffered economically when
his contract was not renewed. The evidence respecting the
grievor's purchase of a house indicated that the deal closed
and that the,grievor did not lose it, although ~e may have
,
had difficulty covering the payments. There is no evidence
of the grievor having incurred a specific financial loss ex-
cept the loss of expected income from renewal of .his Appoint-
ment.
We conclude, on.all the evidence, and on balance of
probabilities, that but for the unfortunate chain of influ-
ence of the discriminatory conduct to which the grievo~ was
subjected, his usual 6-month Appointment would have been
renewed once after the jail re-opened. We are, however,
unable to conclude, on balance, that there would have been
further re~ewals. We do not find it appropriate to place the
~--~ -- ~ - grievor back at work. .,
We therefore direct that the grievor be compensated for
I
all lost wages and benefits for a six-month renewal of' his
Appointment, with interest to the date of payment, based on
his average weekly hours on his 3-week rotating schedule,
including overtime as we have determined it was payabl~, over
the 6 months preceding April 11, 1992. The grievor's earn-
ings as a G.O. Temp within the 6-month period immediately
after the re-opening of the jail shall be applied to reduce
the compensation to which the grievor is entitled.
-,-.--,---,-- - --- -- -We also direct the employer to permit the grievor and/or
his counsel to examine the grievor's personnel and corporate
file and the kitchen log, and that the employer remove, de-
lete, or obliterate, at the designation or request of the
r ~ - - ----
~:
~~.
(.~ 98
.
grievor or his counsel, in their presence, any information
therein attributable to Mr. Williams, Mr McKenzie or Mr.
Fournier, including the Appraisal Updates (Ex. 14 and 15)
We direct the employer to provide the grievor a letter
of apology for the insults to his dignity that he suffered as
a result of Mr. Williams' derogatory remarks about his ethnic
origin and place of origin, and that a copy of the letter be
posted in an area which is viewable by all staff at the
stratford Jail, along with a copy of the Workplace Harassment
and Discrimination Policy and the Human Rights Code.
In view of the evidence with respect to the low expecta-
tionof bargaining unit staff regarding management's response
to complaints regarding management staff, specifically Shift
l Supervisors, we recommend that management communicate openly
with bargaining unit staff on this subject and indicate a
receptivity and, willingness to investigate such complaints,
whether oral or in writing, ~nd where such complaints are
confirmed, to take appropriate steps to discourage such
behaviour, including use of progressive discipline where
warranted.
J We will remain seised with respect to the implementation
of this award.
Dated at Toronto this 20th day of December, . 199~/
-,y- )
'~ ~
/-; //"---', /' )
~/., C Z444-~ ..
Susan D. Kaufman, vice-Chair
"I Dissent" (without written reasons)
Douglas Montrose
Employer Nominee
4/~ - - ~._---~- ----
Edward Seymour
Union Nominee