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HomeMy WebLinkAbout1992-0545.Smith.95-01-17 ~ - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/M/LE/TELECOP/E (416) 326-1396 GSB# 545/94,547/94,2192/93 OPSEU# 94A855,94A854,94A044 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Smith) Grievor - and .. The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE W. Kaplan Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE K. Whitaker GRIEVOR Counsel Ryder Whitaker Wright Barristers & Solicitors FOR THE J Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services HEARING December 8, 1994 l .~~ - ---- 9' 2 ( Introduction On May 17, 1994, Ms. Lynn Smith, a Correctional Officer employed at the Metro East Detention Centre, filed two grievances One of these grievances alleges a violation of Article A of the Collective Agreement; the second grievance alleges a violation of Article 27 102, the provision guaranteeing every employee, among other things, the right to be free from sexual harassment from supervisors. The case proceeded to a hearing in Toronto at which time union counsel presented a motion that these two grievances be consolidated with a third grievance filed by Mr Michael McKinnon This grievance, dated May 27, 1993, grieves a violation of Article A At the request of the parties, the Board restricted this hearing to a consideration of the union's consolidation request. In order to consider that request, it was necessary to hear some of the background to this dispute. Needless to say, this award does not constitute any finding of fact with respect to the truth of the allegations; nor does it make- any findings with respect to the merits of the matters in dispute. The Union's Request In the union's submission, this was an appropriate case for the Board to exercise its long-established jurisdiction to direct the consolidation of grievances. Counsel began his submissions by pointing out that both grievors are co-workers, and that both grievances arise out of the same incident. In brief, the union alleges that Ms. Smith was sexually harassed by a member of management, Mr Brian Melville It is asserted that one night, in the spring of 1 993, Ms. Smith received a telephone call at home from Mr Melville who inquired whether he could come over to have sex with her According to Ms. Smith, she had, in the past, been the victim of ~ i 3 unwanted sexual attention, including touching, from Mr Melville On the night in question, Mr Melville stated, again according to the union, that Ms. Smith had been involved in a sexual relationship with a co-worker, Mr McKinnon In the aftermath of this conversation, Mr Melville is further alleged to have spread this rumour around the workplace creating a poisoned environment for Ms. Smith. Ms. Smith denies being involved in any relationship with Mr McKinnon. Ms. Smith became extremely upset by this incident, and is currently on medical leave With the employer's consent, union counsel introduced Dr Stanley Barron's December 2, 1994 medical report. I am writing to confirm that Lynn Smith is currently being followed actively on the Mental Health Service at this health centre in relation to severe depression related chiefly to work related stresses. She is finding it extremely difficult to cope with stress at this time and I am concerned that she may be involved in grievance hearings in the near future which will further contribute to additional deterioration in her emotional health I would hope that if it is required that she testify, that any appearances be consolidated over as short a time frame as possible so that additional impairment to her emotional health will not occur I understand that severa'l hearings may be required and I would request, that if possible, that her testimony be provided only once to cover both hearings if that can be arranged Essentially, we are trying to minimize the detrimental effect of the additional stress of the upcoming hearings on her already precarious mental state and consolidation of testimony in this regard would be very helpful to her c \ ( 4 Before turning to the reasons in support of the union's consolidation application, union counsel outlined the events underlying Mr McKinnon's grievance This is not the first complaint he has registered against Mr Melville An aboriginal Canadian, Mr McKinnon has, in the past, alleged that Mr Melville has discriminated against him on the basis of race and culture In this case, he filed a grievance alleging a violation of Article A as a result of Mr Melville spreading a rumour around the workplace that he was sexually involved with Ms. Smith. While the substance of his grievance takes issue with this, it also seeks to place this action in the context of a pattern of discriminatory treatment. As Ms. Smith must testify at her hearing and that of Mr McKinnon, and as Mr McKinnon must testify at his hearing and that of Ms. Smith, it made the most sense, in the union's submission, for there to be one hearing and not two It is the union's position that these two grievances, which arise out of the same incident, should be heard at the same time. Not only would this result in a saving of public and union resources, it would also ensure that there were no contrary findings of fact, which might occur in the case of parallel proceedings. Counsel also referred to the state of Ms. Smith's health, and the possible danger to her health should she have to testify twice Very simply, counsel argued, administrative efficiency and the saving of resources in a time of economic restraint dictated the consolidation of these cases (Mr McKinnon's grievance was scheduled to proceed to a hearing on December 22, 1994) Counsel also took the position there was no evidence of any prejudice to Mr Melville or the employer by the consolidation order Very simply, counsel concluded, there was no basis to deny the union's request and every reason to grant it. . ( ( 5 The Employer's Submissions In the employer's view, this was not an appropriate case for consolidation According to Mr Benedict, the facts were not as the union stated He alleged that Ms. Smith had previously been involved in a sexual relationship with Mr Melville, and that many of the problems presented in this case occurred following the conclusion of that relationship. Mr Benedict also poin~ed out that Ms Smith's complaints were the subject of a WDHPP complaint and investigation, and he noted that Mr McKinnon's and Mr Smith's grievances were filed approximately one year apart. While the employer did not wish to do anything to aggravate Ms. Smith's health, Mr Benedict took the position that health reasons alone did not present sufficient cause to consolidate two separate complaints Mr Benedict noted that Ms. Smith's grievance referred to a single incident, while Mr McKinnon's grievance was much broader in scope There was, therefore, insufficient commonality between the two cases. In the employer's view, the only common denominator was that the two grievors had filed grievances about the same supervisor, and this surely, Mr Benedict argued, was not sufficient reason to order that these grievances be consolidated in a single case In the employer's submission, a consolidation order in a case of this kind would cause real prejudice to the employer by forcing a member of management to answer different grievances filed by two employees in the context of a single hearing Problems of collateral evidence were also sure to arise, and this too, was another reason in favour of separate proceedings. In the employer's view, the cases were discrete, and should be treated as such Accordingly, the employer requested that the consolidation request be denied. -- . . 6 ( Union Reply In reply, union counsel pointed out that while there was an apparent gap between the filing of Mr McKinnon's grievance and that of Ms. Smith, the lag was not what it seemed for Ms. Smith immediately filed her grievances upon the release of the WDHPP report. The fact remained, dates aside, that the two grievances arose out of the same incident. While it was true enough that the union intended, during the course of the proceedings should its consolidation request be granted, to allege that Mr Melville had engaged in a pattern of conduct, it was also true that the incident involving Ms. Smith was going to be the centerpiece of the union's allegations against the employer and Mr Melville There was, therefore, in the union's view, more than sufficient commonality justifying consolidation, and counsel suggested that any problem with respect to collateral evidence could be dealt with by the Board as it arose Finally, the union asked that it be noted, for the record, that Ms. Smith categorically denies ever having had a sexual relationship with Mr Melville Decision After carefully considering the submissions of the parties, the Board advised them that it was of the view that the grievances should be consolidated, and then promised written reasons for this decision. These are those reasons. In our view, and based on the facts as alleged by the union for the purposes of its consolidation request, we find that the Smith and McKinnon grievances arise out of the same incident. The employer took issue with consolidating with the Smith grievances another grievance that raised this one issue as well as other issues. Had we been persuaded that the McKinnon . ... ( . 7 grievance only incidentally raised the incident Ms Smith has grieved, we would have likely denied the union request. However, it is clear, again based on the submissions of the union, that the McKinnon grievance raises the Smith incident, which directly involves Mr McKinnon, and then situates that incident in the context of a grievance alleging on-going harassment. There is sufficient commonality in this case to order that the grievances be consolidated There are a number of other reasons in support of this decision The cases are not only factually related, but both grievors will be principal witnesses in both grievances. Different findings of fact will be avoided as a result of our consolidation order Moreover, this order will save the public and the parties money, and will contribute to the orderly and efficient disposition of both grievances. We should also note that in reaching this decision we were influenced by the fact that there does not appear to be any prejudice to the employer There is no evidence to suggest that this consolidation request is made in anything but good faith and for a proper purpose. Finally, the fact of the matter is that Ms. Smith is receiving psychiatric treatment, and it is the opinion of her attending physician that it would be in her benefit to only testify once Obviously, this order will assist Ms. Smith in that respect. Accordingly, and for the foregoing reasons, we direct that the McKinnon grievance, GSB file no 21 92/93, be consolidated with the instant case At the request of the parties, we further direct that this matter be set down for an early hearing - ,. I .. 8 DATED at Toronto this 17th day of January, 1995. {/1/ v- - ----------- William Kaplan Vice-Chairperson ~ ~~, - --- ---- E. Seymour Member ;m~ ()l/~_ ---------- M O'Toole Member I ) ~--- -~ .