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HomeMy WebLinkAbout2015-1660.Patterson.17-03-21 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2015-1660, 2015-1661, 2015-2196, 2016-0106, 2016-0107 UNION#2015-0629-0019, 2015-0629-0020, 2015-0629-0022, 2016-0629-0001, 2016-0629-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Patterson) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel HEARING December 5, 2016 - 2 - Decision [1] Prior to this matter proceeding to hearing, the Union provided the following particulars to the Employer and the Board: • The grievances before the Board in this hearing are: o 2015-1660 (2015-0629-0019): failure to deal with workplace harassment and bullying, filed July 6, 2015 o 2015-1661 (2015-0629-0020): failure to respond in a timely manner, filed July 6, 2015 o 2015-2196 (2015-0629-0022): failure of managers to deal with WDHP complaint in timely manner, filed Sept. 17, 2015 o 2016-0106 (2015-0629-0001): failure to deal with the issues, including that of the duty schedule, filed March 4, 2016 o 2016-0107 (2015-0629-0002): continuing failure to deal with the issues of harassment and bullying, filed March 8, 2016 • The grievor has been employed in the Ministry and/or in the Ministry of Children and Youth Services in the Sudbury area since 1982. • For the first 26 years she worked as a Correctional Officer or Youth Worker in custodial facilities. In 2008 she was transferred to the Sudbury Probation and Parole Office as a Probation and Parole Officer. • In the period up to and including 2008, the grievor had been active in the Union. Her work and engagement in the Union brought her from time to time into conflict with management. In the period prior to her transfer to Probation and Parole, the grievor had filed a number of grievances. The transfer was part of a settlement of those grievances incorporated into a Memorandum of Settlement signed by the parties on September 25, 2008. One of the terms of the settlement (Paragraph 15) provided that “this settlement is meant to give the grievor a ‘fresh start’”. All parties agreed “to undertake to implement it in good faith”. The grievor says that she has fulfilled her commitment under the MOS at all times. • The Union says that the Employer has failed to fulfill its commitment under Paragraph 15. • Paragraph 14 of the MOS confers on Vice-Chair Abramsky jurisdiction to resolve disputes. The Union requests that the Employer consent to - 3 - transferring jurisdiction for resolving any dispute in respect of compliance with Paragraph 15 to Vice-Chair Briggs. • From beginning of the grievor’s time at the Sudbury Probation and Parole Office a number of employees expressed strongly negative feelings against the grievor. This was conveyed in body language and verbally including their tone of voice in conversation with her. As noted in paragraph 11 below, this escalated to physical assault on three occasions. The grievor was totally ostracized and excluded from many things within the office and from functions outside the office involving the staff. Three employees, (names omitted for the purposes of this decision) essentially didn’t talk to her unless it was unavoidable because of the work of the office. They haven’t done so since the grievor arrived at the office. A few of the staff who did treat the grievor with respect and in a friendly manner eventually left employment in the office. As they left things got even worse. • Ms. A. was the leader of the negative reception the grievor received. Ms. A. and the grievor knew each other for many years before the grievor came to the Probation and Parole Office. They weren’t particularly close but were on friendly terms. The grievor was surprised and shocked at Ms. A’s intensely negative attitude and behavior towards her from the outset. The contrast heightened her awareness of the negativity. • From the beginning of the grievor’s assignment to the P and P Office, Ms. A’s very negative attitude escalated over the years and included Ms. A. persistently and increasingly making derogatory comments to and about the grievor, frequently giving her “dirty looks”. • The grievor quickly came to believe that Ms. A’s attitude towards the grievor, and that of others who followed Ms. A’s lead on this, was based on the fact that Ms. A. had learned, though not from the grievor, that the grievor’s appointment was the result of the settlement of her grievances. The grievor’s appointment was understood by Ms. A. and others in the office to have deprived another employee in the P and P Office, Ms. B., of the position to which the grievor was appointed. Ms. B. had a contract position and had expectations that she would have got the job if it hadn’t been given to the grievor. There was no other reason the grievor can think of for their negative attitude and conduct. Ms. A. confirmed this in a conversation with another person in the - 4 - office. Ms. A.’s husband who works at the Sudbury Jail also confirmed it in a discussion with an employee at the Jail. • On February 5, 2015 and again on February 11, 2015 Ms. A. physically assaulted the grievor at work, on two occasions putting her hands on the grievor and pushing her. Another similar incident happened around the same time. The details of the assaults are set out in the grievor’s WDHP complaint. • The grievor reported the assaults to the police and to the Employer, locally and at the regional level. After her discussions with the police, the grievor decided to use the internal processes available to her as an employee in the Ontario Public Service, to raise the issue and to seek a remedy, including that the assaults and other negative conduct were stopped. Included in those efforts were the filing of a WDHP complaint and reporting the conduct directly to management. • Notwithstanding, Ms. A.’s harassing and bullying behavior towards the grievor continued to escalate, sometimes in front of the grievor’s clients. • On March 6, 2016, for example, the grievor attended a charity event along with other co-workers. Ms. A. attended. She and a co-worker who was with her, Ms. C., “cold-shouldered” the grievor in a manner that was entirely obvious to others, including the other co-workers. Their action could only have been intended to publicly snub and humiliate the grievor. Ms. A., followed by Ms. C., then made a show of turning away and leaving the event because they disapproved of the grievor and her presence at the event. The grievor was deeply hurt and humiliated by Ms. A.’s conduct and that of Ms. C. Relations with Ms. C. have been tense ever since. • On a number of occasions, the Grievor asked the Regional Director (RD) to deal with the increasingly difficult situation. The RD promised she would look into the issues and deal with them. The grievor never heard back from the RD or anyone from her office. Nor were the issues dealt with. The Employer took no steps, to the knowledge of the grievor or the Union, to put an end to the negative conduct towards the grievor, and hasn’t to this day. • The conduct of Ms. A. and the other staff was well known to management because they were able to observe it and because the - 5 - grievor frequently complained about it, asking that management intervene to end it. Management knew and ought to have known that the negative conduct had a seriously deleterious effect on the grievor’s health. • The Employer’s response to the grievor’s complaint about the conduct of Ms. A. and the others towards her was slow and inadequate. The WDHP investigation was repeatedly delayed. The area manager acted as if she were afraid of Ms. A. and did nothing. • The excessive period of time it took for the investigation to be launched and concluded was particularly stressful. The grievor was advised that a manager would be in the office at all times while the investigation was proceeding so as to afford the grievor some protection in the event of retaliation by Ms. A. The promise was not kept. In view of the earlier assaults the grievor was concerned for her safety. • To the stress of the situation with Ms. A. and the others was added a failure on the part of management to provide the grievor with a functioning computer application essential to her work. It was due to start up in January of 2015 and wasn’t operative for four and a half to five months. Only after the grievor filed a grievance was anything done to remedy the situation. • In October, 2015 two managers from Corporate Office attended at the Sudbury office and conducted interviews into the complaints from the office. As of March, 2016, nothing had been heard in the office despite promises made in October that recommendations to deal with the situation would be forthcoming quickly. The Sudbury manager said in March that she knew nothing and had heard nothing. • The grievor sought medical attention as a result. Medication was prescribed and the grievor has been required to stay on medication since 2014 as a result. • The grievor has suffered significant mental, emotional and physical distress as a result of the Employer’s failure to deal with or prevent the harassment and bullying to which she was subjected. • The first two grievances (2015-1660 and 2015-1661) are very similar. They were filed July 6, 2015 and were based on the facts outlined above up to and including that date. - 6 - • By September 17, 2015, the date of the third grievance (2015-2196), the failure of the Employer to process the grievor’s WDHP complaint provoked another grievance. • The fourth grievance (2016-0106) filed March 4, 2016 involved a failure by the Employer to deal with the duty schedule problem. • Finally, the fifth grievance (2016-0107) filed March 8, 2016 was based on the failure of the Employer to deal with the issues described above and which were continuing. • The Union seeks general damages for pain, loss of dignity and humiliation, and for pain and suffering and a direction that the Employer take immediate steps, in consultation with the grievor and the Union, to correct the issues in the workplace, and such other remedies as the Board sees fit. The Union asks the Vice-Chair to retain jurisdiction on remedy to resolve any disputes between the parties on this issue. • The Union requests full disclosure and production by the Employer of all documents, including emails, in the possession of the Employer relevant to the issues raised in this matter. [2] During a conference call held subsequent to the delivery of the above particulars the parties agreed that it makes much labour relations sense for the Board to first hear submissions regarding what remedy could be provided by this Board. A hearing day was held for this purpose. [3] The Employer agreed to admit the above particulars as proven for the purpose only of this preliminary motion. Indeed, it strongly urged that in the event the hearing proceeds on the merits, it would call evidence to the contrary of much of what is set out in the particulars. [4] The parties were agreed that these grievances proceed in accordance with Article 22.16 and therefore this decision is without precedent or prejudice. [5] This decision deals only with the Employer’s preliminary motion. - 7 - EMPLOYER SUBMISSIONS [6] Mr. Dailleboust, for the Employer, submitted that – in a nutshell – this Board is precluded from awarding the compensatory damages sought by the grievor in accordance with Re OPSEU v. Ontario (Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Service - Monk et al) [2010] O.G.S.B. A. No 119 (Gray), upheld by Divisional Court [2012] O.J. No. 4301 and the Court of Appeal [2013] O.J. No. 2369. It was noted that all of the grievances before this Board refer to violations of Articles 2, 3, and 9 of the Collective Agreement – that is to say, Management Rights, No Discrimination/Employment Equity and Health and Safety. Violations of Article 9 are at the very centre of Re Monk and Vice Chair Gray determined, at paragraph 110 that: I find that this Board cannot award a grievor damages “for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer” if the alleged accident or disease is or was compensable under the WCA/WSIA, whichever applies. [7] Accordingly, the only provision left for this Board to consider is Article 3. Article 3 states: 3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10 (1) of the Ontario Human Rights Code (OHRC). 3.2 The shall be no discrimination or harassment practiced by reason of an employee’s membership or activity in the Union. 3.3 The Parties are committed to a workplace free from workplace harassment, including bullying, by other employees, supervisors, managers, any other person working or providing services to the Employer in the workplace, clients or the public, in accordance with the law. Workplace harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome. 3.4 It is recognized that in accordance with section 14 of the Ontario Human Rights Code, the Employer’s employment equity program shall not be considered a contravention of this article. [8] It was noted by the Employer that there is no allegation of discrimination based on an enumerated ground under the Ontario Human Rights Code (“OHRC”) in the grievances before this Board or as set out in the particulars. - 8 - [9] The Employer asserted that Article 3.3 is a relatively new provision in the Collective Agreement introduced in 2012 subsequent to the passage of Bill 168. It is this clause that the Union relies upon in the grievances at hand. There is a difference between damages as a result of violations of the OHRC – as set out in Articles 3.1 and 3.4 – and allegations of workplace bullying and harassment on non-enumerated grounds. [10] It was contended by the Employer that the phrase “in accordance with the law” found in Article 3.3 refers to the Ontario Health and Safety Act (“OHSA”). Indeed, a review of Article 3.3 and OSHA reveals that the words used are virtually identical. Therefore, when contemplating whether the WSIA would apply and disentitle this Board to award compensatory damages, Article 9.1 and 3.3 stand in the same shoes. Both refer the OSHA and therefore the restriction from awarding damages applies. [11] Mr. Dailleboust said that it is long standing and trite law that this Board can order damages as the result of a breach of the OHRC as set out in Articles 3.1 or 3.4. However, the decision in Re Monk – which was upheld in the Court of Appeal - precludes the Board from awarding damages as the result of workplace bullying and harassment on non-enumerated grounds. If an injury – or illness – could attract benefits under the Workplace Safety Insurance Act, then no damages can be ordered by this Board. [12] The Employer submitted that it is now the law that instances of mental illness that are directly related to employment are compensable illnesses under the WSIA. In Re WSIAT Decision No. 2157/09 it was determined that the provision in WSIA stating that “a worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment” was an infringement of Section 15(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, Schedule B to the Canada Act, 1982 (U.K.) 1982 c. 11 (the “Charter”) and did not constitute a reasonable limit that could be “demonstrably justified in a free and democratic society.” The Tribunal declined to apply the subsections 13(4) and (5) which are the provisions of the WSIA disentitling the worker’s claim for benefits as the result of mental stress that was not a consequence of a sudden and unexpected traumatic event but was the result of her employment. This finding and remedy was again applied in WSIAT Decision No. 1945/10 when the Tribunal stated that “the worker’s claim for initial entitlement for mental stress is granted.” - 9 - [13] For all of these reasons, according to the Employer, this Board should grant the preliminary motion and state that it is without jurisdiction to award damages for mental distress that resulted from bullying and workplace harassment. UNION SUBMISSIONS [14] Mr. Brewin, for the Union urged this Board to deny the Employer’s motion because there has been no injury – as that term is used in Re Monk – in the case at hand. To be clear, there is no allegation of an illness or disease. What is the essence of the matter before this Board is “unchartered territory.” It is clear from the jurisprudence that a human rights breach by the Employer is excluded from the limitation of jurisdiction to award damages. [15] Before this Board are a number of grievances that contemplate injuries which may arise from bullying, according to the Union. There is no finding by any adjudicative body that states these injuries are compensable under the WSIA. [16] It was noted by the Union that there is no definition for injury that would assist this Board and therefore the plain meaning of the word should be applied. There must be serious physical, mental or emotional symptoms to be an injury that would rob this Board of its jurisdiction to award damages. Further, it must be a compensable injury. [17] The Union relied upon Re City of Toronto and CUPE Local 79 (August 11, 2015) unreported (Herman). In that case, a city employee who witnessed a shooting was awarded a five thousand dollar damage award. The grievor did not make a claim of any sort under the WSIA. It was said, at paragraph 20 that the necessary determination for the Board to make was whether the grievor “could have made a valid claim under the WSIA for compensation for pain and suffering and/or mental distress. It was noted at paragraph 21: Shaw did not suffer a lasting workplace injury, it does not appear from the evidence that he had or has any permanent impairment, and he did not miss any work or lose any income. Neither party referred to a section of the WSIA under which Shaw could have made a claim for damages in these circumstances, nor was it suggested how he could have made such a claim, where there was no continuing injury, no permanent impairment and no loss of work hours or income. I accordingly do not find that a stand-alone claim by Shaw for damages or benefits could have been made to the WSIB or would have been compensable under the WSIA. His claim for damages for pain and suffering and/or mental distress is not, therefore, barred by Section 26(2) of the WSIA. - 10 - [18] The Union urged that in this matter Article 3.3 commits the Employer to a workplace that is free from workplace harassment including employee bullying. Mr. Brewin took issue with the Employer’s view that the phrase “in accord with the law” in Article 3.3 is limited to mean the OHSA. Where the parties wanted to make specify reference to legislation by name in the various provisions of the Collective Agreement, they did so. It is not set out in Article 3.3 and that is because it is not just the OHSA that is to be considered. [19] The Union also referred to the Employer’s Workplace Discrimination and Harassment Prevention Policy which has – as its policy statement – a commitment to “fostering and sustaining an inclusive, equitable and accessible workplace that is respectful and free from discrimination and harassment.” Under this policy the Employer agrees to “prevent workplace discrimination and harassment and promote awareness of rights and responsibilities” as well as to “identify and eliminate workplace discrimination and harassment in a timely manner. [20] In closing the Union urged that the grievances are about violations of Article 3.3 and a finding by this Board that general damages for these breaches is barred from the list of potential remedies would be wrong. EMPLOYER REPLY [21] Turning first to the WDHP submissions made by the Union, Mr. Dailleboust asked the Board to note that the policy itself defines harassment as “engaging in a course of vexatious comment or conduct against an employee or other worker in the workplace that is known or ought reasonably to be known to be unwelcome.” The wording is strikingly similar to that of Article 3.3 of the Collective Agreement. The WDHP policy deals with all aspects of Article 3 with the exception of anti-union animus. [22] Regarding the matter of compensation – or lack thereof – under the WSIA, the Employer submitted that claims under the Act are not just for time lost but also include “non-economic losses”. These payments are for matters that impact on life style – that occurred in the workplace - but do not necessarily impact upon one’s ability to earn wages. If the facts of this case were to be put before the WSIAT, the issue would be whether this claim is a compensable injury or illness taking into account that the genesis of the complaint occurred during the course of the grievor undertaking her duties in the workplace. - 11 - [23] The Employer asked the Board to reject the finding and order in Re City of Toronto. It was suggested that the hearing was held prior to the issuance of both WSIA decisions and for some reason, it appears that the Arbitrator did not have either case before him. Further, the Arbitrator in that matter declared, at paragraph 21 that he “did not find a stand-alone claim for Shaw for damages or benefits could have been made to the WSIB or would have been compensable under the WSIA.” That is not the case in the matter before this Board. According to paragraphs 21 and 22 of the particulars in evidence the grievor sought medical attention and was prescribed medication. [24] For all these reasons, it was urged that the Board should uphold the Employer’s preliminary request. DECISION [25] After consideration of the particulars, the submissions and the jurisprudence, I am of the view that the Employer’s motion must be upheld for the reasons set out below. [26] In Re WSIAT Decision #2157/09 the Workplace Safety and Insurance Appeals Tribunal considered a claim that had been made by a nurse who was ill treated at the hands of a physician over a twelve-year period. When she complained to her supervisor she was told that her duties would be significantly reduced and was arguably demoted although her classification did not change. She was unable to continue to work and sought medical and psychiatric treatment. She was diagnosed with an adjustment disorder with mixed features of anxiety and depression which was thought to be as a direct result of her work environment in the view of her medical practitioners. She applied for benefits under WSIA but was initially denied because she did not have “an acute reaction to a sudden and unexpected traumatic event” which was the only mental illness that was covered by Sections 13(4) and (5) of the WSIA. [27] The nurse’s union appealed the matter and argued that the finding was contrary to section 15 of the Canadian Charter of Rights and Freedoms Part 1 of the Constitution Act 1982, Schedule B of the Canada Act, 1982, (U.K.) 1982, c. 11. [28] In the well-reasoned decision of the Tribunal, it was ultimately found, at paragraph 278, that “the lines drawn are not consistent with the evidence and the impugned provisions do not represent a reasonable or equitable approach to the identified purpose of establishing the work-relatedness of mental disorders.” - 12 - Accordingly there was no justifiable reason to infringe on the claimant’s Charter rights by section 1. [29] In Re WSIAT Decision # 1945/10 the Tribunal addressed whether it should find that Section 13 of the WSIA should not apply to the case before it. In its determination to uphold the worker’s appeal, the Tribunal stated, at paragraph 34: The present Panel is persuaded, by the reasoning and the analysis of the evidence in Decision No. 2157/09, as supported by the evidence and submissions made to us, and in the absence of contrary submissions, that the analysis and findings in Decision No. 2157/09 should be followed in the present case. In particular, we are persuaded of the following: • The purpose of subsections 13(4) and (5) of the WSIA was to exclude certain types of injuries from entitlement to benefits under the Insurance Plan. • The intent of the legislation was to treat a claim for a chronic stress injury resulting in mental disability differently from a gradual onset physical injury, and differently from an acute onset mental injury. • The provisions thereby created a distinction between workers who suffer a work-related mental disability and those who suffer work-related physical disability. • The provisions exclude from the historical trade-off workers who suffer a mental disability as a result of gradual-onset work related stress by either excluding them entirely from entitlement to benefits from the Insurance Plan or subjecting them to entitlement criteria that implies that their injury/disability is the “real”. • This distinction creates a disadvantage by perpetuating prejudice or stereotyping because it assumes that the work- relatedness of a gradual onset mental disability cannot be reliably established. • It also implies that such claims have less veracity. • Individuals with a mental disability are at a historical disadvantage, a fact not challenged in the present case. • The distinction has no ameliorative purpose nor is there a reasonable degree of correspondence between the differential treatment and the reality of individuals with mental disability. • Mental disability is an enumerated ground in subsection 15(1) of the Charter. - 13 - • The provisions of subsections 13(4) and (5) of the WSIA are not saved by section 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society. [30] The appeal was allowed and because the earlier decision determined that the worker would have had entitlement but for sections 13(4) and (5), the claim for benefits was granted. [31] In consideration of the Employer’s preliminary motion it is necessary to consider the view of Vice Chair Gray as set out in Re Monk, at paragraph 111: In determining whether this restriction applies to any particular one of the grievances that allege adverse health effects resulted from exposure to second hand smoke, the question is not whether a claim for compensation was made and granted under the pertinent statute in respect of the injury or illness alleged in the grievance. The proper question is whether an injury or illness of the sort alleged by the grievor would be or would have been compensable under the applicable statute if proven. If that question has been answered in proceedings under the WCA/WSIA, then that answer governs. If that questions has not been answered in proceedings under the WCA/WSIA, either because no claim for compensation has been made with respect to the alleged injury or illness or because such a claim was refused for reasons from which it is not apparent whether the tribunal considered an injury or illness of the sort alleged to be compensable in nature, then in any case in which the parties cannot agree on the answer I will have to determine the question myself, as arbitrator Sim did in the University of Saskatchewan matter, subject to any contrary ruling that the union or grievor may be able to obtain in proceedings under the WCA/WSAI. (emphasis not mine) [32] The parties have asked this Board to determine – assuming that the facts as set out in the particulars are proven to be true – whether damages would be awarded to the grievor. It is to be recalled that in the particulars provided to this Board the following was stated: • The grievor sought medical attention as a result. Medication was prescribed and the grievor has been required to stay on medication since 2014 as a result. • The grievor has suffered significant mental, emotional and physical distress as a result of the Employer’s failure to deal with or prevent the harassment and bullying to which she was subjected. [33] In considering this matter I have taken into account that in order to have a “viable claim” it is not necessary to have lost wages. I agree with the submission of the - 14 - Employer in that regard. I also agree with the Employer that the phrase “in accordance with the law” in Article 3.3 refers to the OSHA. Given the virtually identical phrasing – it would be difficult to come to a different view. [34] Accordingly, given the frequent reference to stress and the grievor’s claim in her particulars, I am of the view that there is “an injury or illness” of the sort that “would be or would have been compensable under the applicable statute,” as set out in Re Monk. [35] The Union relied upon Re City of Toronto. I note that the Arbitrator appears not to have been given the decisions of Worker’s Safety and Insurance Tribunal Re Decisions #1945/10 and 2157/09. I have found those decisions of tremendous assistance in the determination of this matter. For that reason and with the greatest respect, I do not find the decision in Re City of Toronto persuasive. [36] For all these reasons, the Employer’s preliminary objection is upheld. [37] This matter will continue as scheduled. Dated at Toronto, Ontario this 21st day of March 2017. Felicity D. Briggs, Vice-Chair