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HomeMy WebLinkAbout2000-0377.Sager et al.04-10-06 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB#2000-0377 UNION#2000-0430-000S [00A409] IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Sager Shelley et al) Grievor - and - The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION MarnIe NiemI FOR THE EMPLOYER F ateh SalIm HEARING May 7 2004 DeCISIon ThIS award deals wIth a motIOn for non-sUIt brought by the Employer The Umon dId not put the Employer to ItS electIOn and the motIOn proceeded by way ofwntten submIssIOns The gnevance at Issue IS dated March 7 2000 and alleges as follows We gneve that Emplover vIOlated the agreement b, abusmg staff through demeamng, authontatIve and msultmg comments, b, provocatIve bod, language b, treatmg staff dIfferenth m sImilar cIrcumstances, b, neglectmg emergenc, commumcatIOns to staff from theIr fanuhes, b, provIdmg dIfferent and confhctmg answers to questIOns, b, attackmg staff Ideas and chastIsmg staff so loudh that It can be heard elsewhere b, vellmg at us, b, tellmg us that It doesn t take an, brams to do our Job b, trvmg to mtImIdate b, savmg we should be thankful we have Jobs and that we haven t been replaced WIth temps, b, the poundmg of fists on a desk, b, repeatmg mformatIOn gIven a supervIsor to other employees and b, bemg told that we don t have staff meetmgs because the, turn mto 'bItch seSSIOns and favountIsm REMEDY That the Emplover assure a non-recurrence ofthese breaches ofthe agreement, that It undertake the trammg of ItS supervIsor(s) to provIde that mechanIsms to be agreed upon be put m place to obvIate the need for thIS type of gnevance agam and such other remed, as ma, be agreed upon or decIded b, a board of arbItratIOn. The Umon, In ItS partIculars, explaIned ItS posItIOn as follows The Umon s posItIOn on the gnevance IS that the Emplover has breached artIcle 9 of the CollectIve Agreement b, faIlmg to provIde the gnevor s WIth a safe and health, work envIronment. SupervIsor Cmd, Moorehead s treatment of the gnevor s was abusIve harassmg and mtImIdatmg It created a stressful and pOIsonous work envIronment for the gnevors The Umon wIll be seekmg a declaratIOn that the Emplover has breached theIr obhgatIOns under the CollectIve Agreement, an order for an apology to be made to the gnevors and full financial compensatIOn for Joe Cordeau for hIS loss of credIts and wages whIle on short term sIck leave m 2000 The gnevance was ongInally sIgned by fifteen gnevors but two of the gnevors later wIthdrew theIr names Of the remaInIng thIrteen gnevors, four gave eVIdence as representatIve of the group The claim for compensatIOn for Mr Cordeau was wIthdrawn and, In ItS opemng statement, the Umon confirmed that It was relYIng solely on IncIdents 3 that had occurred In the Microfilm Umt In the latter part of 1999 and the early part of 2000 At the conclusIOn of the Umon' s case the Employer brought forward ItS motIOn for a non- SUIt, takIng the posItIOn that the Umon faIled to make a prime facie case of a vIOlatIOn of the collectIve agreement. It asked that the gnevance be dIsmIssed. Because Ms Moorehead was not gIven an opportumty to respond to these allegatIOns I have concerns about presentIng only the gnevors' verSIOn of the IncIdents gIVIng nse to the gnevance In the CIrcumstances I have decIded to summanze the eVIdence as follows Ms Moorehead was asked about havIng staff meetIngs and allegedly said they only turned out to be bItch seSSIOns and so she only had Informal meetIng In the department dunng whIch she chastIsed employees In front of others and yelled at staff she would call people Into her office and yell at them so loudly that others could hear - often people would come out of her office In tears, she Insulted staff contInuously by tellIng them that anyone could do theIr Jobs and that It dId not take any braIns to do It; she often threatened to replace them wIth temps or to do the Jobs herself; she refused to agree to place a another phone In the area, even though two phone calls about emergency sItuatIOns had not been put through - Ms Moorehead told them they would always be on the phone If It was avaIlable she Improperly released confidentIal InformatIOn to other employees about personal sItuatIOns told to her In confidence she was erratIc In her moods, a Jekle and Hyde, caUSIng stress and tensIOn because one never knew how or whether to approach her she used foul and obscene language In a loud VOIce although never dIrected at anyone In partIcular most often at Inammate obJects she Insulted the staff by appoIntIng an outsIder to a temporary posItIOn Instead of offenng It to all staff Without mImmIZIng the senousness of these claims to the gnevors, that IS the substance of the eVIdence from all of the Umon wItnesses It IS consIstent WIth the allegatIOns contaIned In the gnevance Ms Moorehead, had she testIfied, would have demed these allegatIOns 4 SUBMISSIONS OF THE PARTIES Mr SalIm, counsel for the Employer took the posItIOn that the Umon had faIled to meet ItS onus In that ItS eVIdence has faIled to support the allegatIOn that the gnevors' health and safety were JeopardIzed by the actIOns or InactIOn of the Employer It was said that the only eVIdence before thIS Board was that of a few employees who were unhappy about a senes of management decIsIOns, IncludIng decIsIOns about the placement of an addItIOnal phone In the mIcrofilm department, the appoIntment of a temporary supervIsor In the mIcrofilm department and Ms Moorhead's manner of speakIng. That IS not eVIdence of probatIve value warrantIng a response from the Employer Ms NiemI, for the Umon, charactenzed thIS as a "bad boss" case where the abusIve conduct of a manager vIOlated the CollectIve Agreement. Ms Moorehead's treatment of the gnevors was abusIve, harassIng and IntImIdatIng, IncludIng erratIc and unpredIctable behavIOur InsultIng staff IndIVIdually and as a group demeamng comments, use of foul language yellIng, poundIng of fists, threatemng and IntImIdatIng and caUSIng a pOIsoned work envIronment. The Employer knew of these concerns and allowed ItS supervIsor to treat ItS employees so appallIngly that theIr place of work became stressful, tense, demeamng and pOIsonous The Umon' s eVIdence has not been challenged and must be taken at ItS hIghest. The Board should draw the reasonable conclusIOn that the Umon has made out a prima facie case It was submItted that It IS Important that the gnevance be decIded on ItS ments The gnevors have been through an extremely stressful expenence and deserve to have complete transparency In the process and, ultImately closure based on fairness and natural JustIce To deny them thIS natural JustIce when they feel they have been repeatedly wronged by the Employer would be grossly unfair REASONS FOR DECISION The Employer's motIOn seeks to have thIS gnevance dIsmIssed on the grounds that the eVIdence does not support the Umon' s allegatIOn that the Employer has vIOlated the 5 CollectIve Agreement. The pnncIples govermng non-sUIt motIOns are descnbed In SopInka and Lederman, The Law of EVIdence In CIvIl Cases, (Butterworths, 1974) at page 521 as follows An Important part of the dIVISIOn of roles between Judge andJun IS the assessment of the probatIve sufficIenc, of the eVIdence adduced b, a part, to estabhsh hIS case Ifa plamtIff fails to lead matenal eVIdence he ma, be faced at the close of hIS case b, a motIOn for a non-smt b, the defendant. If such a motIOn IS launched, It IS the Judge s functIOn to determme whether an, facts have been estabhshed b, the plamtIff from whIch habIht, If It IS m Issue ma, be mferred. It IS the Jun s dut, to sa, whether from those facts when submItted to It, habIhn ought to be mferred. The Judge m performmg hIS functIOn, does not decIde whether m fact he beheves the eVIdence He has to decIde whether there IS enough eVIdence If left uncontradIcted, to satIsf\ a reasonable man. He must conclude whether a reasonable Jun would find m the plamtIffs favour If It beheved the eVIdence gIven m tnal up to that pomt. The Judge does not decIde whether the Jun wIll accept the eVIdence but whether the mference that the plamtIff seeks m hIS favour could be drawn from the eVIdence adduced, Ifthe Jun chose to accept It. ThIS decISIOn of the Judge on the sufficIenc, of eVIdence IS a questIOn of law' he IS not ruhng upon the weIght or the behevabIht, of the eVIdence whIch IS a questIOn of fact. Because It IS a questIOn oflaw the Judge s assessment ofthe probatIve sufficIenc, of the plamtIffs eVIdence or of the defendant s eVIdence on a counter-claim for that matter IS subject to reVIew b, the Court of Appeal AssumIng there are no Issues regardIng credulIty a non-sUIt motIOn cannot succeed If the party carryIng the burden of proof has presented some eVIdence whIch supports each of the essentIal elements of ItS claim. In the case of OPSEU vs. Ministry of the Attorney General (Gareh Grievance) GSB # 1665/98 (R. Brown) the Board said, at page 3 The standard of sufficIent eVIdence was agam apphed b, the Court of Appeal m Re Gallant and Roman Cathohc Separate School Board ofDIstnct of Sudbun (1995) 56 O.R. (2d) 160 In dealmg wIth such a motIOn, a Judge must decIde whether sufficIent pnma facIe eVIdence has been presented b, the apphcant. At thIS stage the plamtIff [opposmg the motIOn] IS entItled to have the facts mterpreted m the manner most favourable to hIm or her Hall V Pemberton (page 167 emphasIs added) In thIS claim the gnevors have alleged that the Employer has breached ArtIcle 9 of the CollectIve Agreement by faIlIng to provIde a safe and healthy work envIronment. The breach was the result, It was Said, ofMs Moorhead's abusIve, haraSSIng and IntImIdatIng manner towards the employees 6 That provIsIOn was the subJect of a gnevance In the Rideau RegIOnal Centre (Laframboise and Ministrv of Community and Social Services [GSB # 2268/95] (J Roberts) whIch concerned the questIOn of when, If ever the employer wIll become responsIble under the Health and Safety provIsIOns of the CollectIve Agreement for the consequences of the stress placed on employees by an abusIve "bad boss" The IntroductIOn of the award contaInS an excellent descnptIOn of the cases that mIght fall under thIS general headIng of "bad bosses" In an, large organIzatIOn vou wIll find a few 'bad bosses The, ma, be regarded as 'bad bosses because the, seem mtoxIcated wIth theIr power or cold and forbIddmg, unfair and unreasonable secretIve and SUSpICIOUS, ruthless and callous, manIpulatIve and untrustworth, or dIsorgamzed and Irresponsible Some mIght even suffer from alcohohsm or addIctIOn. From a health and safet, perspectIve however one of the worst tvpes of bad bosses must be abusIve bad bosses - those who routmeh rave at, bulh or demean theIr emplovees - for the, can undermme theIr emplovees self-esteem and self- confidence to the pomt of tnggenng senous Illness ThIS arbItratIOn mvolves the questIOn of when, If ever the emplover wIll become hable under the health and safet, provIsIOns of ArtIcle 18 1 of the collectIve agreement for the consequences of the stress placed on emplovees b, an abusIve bad boss For reasons whIch follow It IS concluded that the emplover wIll be hable for a breach of these provIsIOns whenever managers fall to take adequate countermeasures m response to CIrcumstances raIsmg a reasonable probabIht, that unless the, do so the practIce of abuse engaged m b, a bad boss under theIr dIrectIOns wIll tngger senous Illness m one or more emplovees ArbItrator Roberts went on at page 57 to define "senous Illness" as follows M, use ofthe term senous illness m the above defimtIOn ofthe emplover s habihn IS mtended to dIfferentIate between stresses, tensIOns, ImtatIOns or unhapp, sItuatIOns that do not amount to medIcalh recogmzed condItIOns and those whIch do not. A sImIlar effort to make thIS dIfferentIatIOn was made m an authonn to whIch I was referred b, counsel for the emplover Re Wesrfair Foods LTD and United Food and Commercial Workers Local 823 (1992) 29 L.A.C (4th) 222, at 250 (ManItoba, F.M. Steel) In that case the learned arbItrator said. There was no eVIdence adduced to mdIcate that an, emplovee became Ill, reqmred medIcal treatment or suffered an, effects on theIr health as a result of Mr Cesano s [i.e the alleged abusIve bad boss s] conduct. Some of the emplovees testIfied that the, were nervous or had dIfficuln sleepmg at mght, vet no eVIdence was led of medIcal reports or compensatIOn claims or even tIme taken from work. It IS true that Karen Gamoch vomIted at work and took the rest of the da, off on the doctor s advIce however there was no medIcal eVIdence adduced to mdIcate the reason I agree that the sItuatIOn was unpleasant, but 7 somethmg more must be shown before an unsafe workmg condItIOn IS establIshed. at 250-51 The accepted test to be applIed In determInIng whether to grant thIS motIOn IS clear The Board must be satIsfied that the eVIdence before It, If accepted, dIscloses a vIOlatIOn of the collectIve agreement, namely artIcle 9 As well, the Board must assess that eVIdence In a manner most favourable to the gnevors If It IS satIsfied that the eVIdence reqUIres an answer from the Employer the non-sUIt must faIl I make no findIngs about the truth of the eVIdence That IS not my role at thIS stage of the proceedIngs Nevertheless, for purposes of thIS motIOn, even If! were to accept all of the allegatIOns as valId, I do not belIeve they satIsfy the test set out above The Laframboise case (supra) contemplated sImIlar sItuatIOns In ItS IntroductIOn and concluded that the actIOns of the abusIve bad boss had to have reasonably been antIcIpated to result In a senous Illness Senous Illness must be more than tensIOn, stress, IrrItatIOn or unhappIness As In the Westfair case (supra) there IS no eVIdence before me that any of the gnevors became Ill, reqUIred medIcal attentIOn or even mIssed any tIme at work because of the alleged abuse There IS sImply no eVIdence before me that the health and safety of the gnevors was affected by the actIOns ofMs Moorehead. My JunsdIctIOn IS denved from the collectIve agreement and the eVIdence before me must be sufficIent to show that an allegatIOn that a provIsIOn of the CollectIve Agreement has been breached has raised a questIOn requmng a response from the Employer There IS no eVIdence before me upon whIch I can find such a breach. 8 DECISION For the reasons set out above, the Employer's motIOn for non-sUIt IS granted and the gnevance IS dIsmIssed. Dated thIS 6th day of October 2004 ~ ' .. . ., r .. . '""--~ .. :-= Loretta Mikus Vice-Chair