HomeMy WebLinkAbout2015-2531.Zingel.17-04-03 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#2015-2531, 2015-2628, 2015-2629, 2015-2630
UNION#2015-0599-0015, 2015-0599-0016, 2015-0599-0017, 2015-0599-0018
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Zingel) Union
- and -
The Crown in Right of Ontario
(Ministry of Finance) Employer
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNION Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Roslyn Baichoo
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING March 29, 2017
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Decision
[1] The Board is seized with four related grievances filed by Ms. Krista Zingel in
October 2015. Ms. Zingel (“grievor”) was employed as a Compliance Officer
at the Financial Services Commission of Ontario in the Ministry of Finance.
[2] The union has filed particulars and a “will say” statement setting out the
testimony that would be presented through the grievor. The employer
presented a motion that all of the grievances be dismissed on the grounds that
the union’s particulars and “will say” statement do not make out a prima facie
case for any violation of the collective agreement. This decision determines
that motion.
[3] For purposes of this motion is suffices to note that the grievances in substance
allege that the employer contravened article 3 (bullying and harassment) and
article 9 (health and safety), that this was done as a reprisal for her raising
concerns about the employer’s failure to exercise its mandate properly, and
that the employer’s conduct forced the grievor to resign (constructive
dismissal).
[4] The Board received a document brief from the union, and case law from both
parties. Submissions were also made by both counsel. The Board has
reviewed and considered all of that.
[5] The legal principles that apply in determining these motions are well
established. In Re Couture et al, GSB 2008-3329 (Dissanayake) at para 6,
the Board stated that such a motion would succeed, “… if the facts asserted in
support of a grievance, if accepted as true, are not capable of establishing the
elements necessary to substantiate the violation alleged”. Thus the facts
asserted in the union’s particulars and “will say” statement must, for purposes
of this motion, be accepted as true. The Board has stated that for this purpose,
“arguments or conclusions do not constitute allegations of fact”, and are not to
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be accepted as true. (Re Martin et al, GSB 2013-3579 (Anderson) at para.3).
The Board has also held that in accepting the alleged facts, the fact that those
facts are disputed by the employer is immaterial. In Re Martin et al at para.15,
the Board wrote
More generally the Ministry disagrees that the workload of
the Caseworkers is excessive. However, for the purposes of this
motion I am required to assume that the facts particularized by the
Union are true. I am unable to say that those facts are incapable
for supporting the conclusion that the workload is excessive. The
Ministry argues that I any event the workload and other stresses
identified by the Union are inherent to the position of Caseworker
and that any risk of harm is both reasonable and necessary. That
may prove to be the case on the evidence. However for the
purposes of this motion I must treat the Union’s particulars as true.
[6] Similarly, the Board has also opined that in these motions it is inappropriate to
weigh the evidence. The factual assertions must be accepted as true. (See, Re
Evangelista et al, GSB 2009-1091; 2010-1854 (Harris) at para.12).
[7] Applying those principles to the union’s particulars and “will say” statement the
Board concludes that the facts asserted therein are capable of supporting a
violation of one or more of the articles relied upon by the union. As Vice-Chair
Anderson stated in Re Martin et al, (supra, at para. 15), “Whether the union will
be able to prove those facts and whether I will reach the same conclusion having
heard all the evidence and full argument is another matter altogether”.
[8] It follows that the instant motion is dismissed. The hearing will continue as
scheduled.
Dated at Toronto, Ontario this 3rd day of April 2017.
Nimal Dissanayake, Vice-Chair