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HomeMy WebLinkAbout2004-3768.Ahluwalia.07-12-05 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 Nj ~ Ontario GSB# 2004-3768, 2005-0390 UNION# 2005-0541-0002, 2005-0541-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Ahluwalia) - and - The Crown in Right of Ontario (Ministry of Government Services) Bram Herlich John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors Simon Heath Counsel Ministry of Government Services November 23,2007. Union Employer Vice-Chair 2 Decision The grievor, Gian Ahluwalia, is a full-time classified employee whose home position is as a Customer Service Representative ("CSR") at the Ministry of Government Services Records Centre. Two grievances filed on her behalf have been referred to this Board for determination. In the first, dated January 25, 2005, the she claimed that the employer had violated Article 8.6.3 of the collective agreement by failing to assign her the position of Contact Centre Agent (S02) on a permanent basis. Although not specifically articulated in the grievance, the union also asserted that this failure was motivated by improper discrimination. In the second grievance, dated March 21,2005, it is alleged that the employer engaged in improper discrimination contrary to Articles 3.1 and 3.2 of the collective agreement. The grievor testified before the Board and was given full opportunity by counsel to express all of her concerns related to the grievances. At the conclusion of the union's case, the employer moved for a non-suit, asserting that, even accepting all of the grievor's evidence, there was no case to meet. The union did not seek to put the employer to its election. This decision deals with the employer's motion. In coming to my determinations, I have accepted all of the grievor's evidence at its most favourable and have further accepted, for the purposes of this decision, that the grievor was a credible and trustworthy witness. The grievor has been employed in the public service since June 1976. She has no discipline on file. In 1994 she occupied the position ofCSR and this, subject to the instant grievance, remains her home position. In October 2001 she began a series of temporary secondments to the (higher rated) position of Call Centre Agent at the Ministry Call Centre. None of these assignments was effected through any posting or resulting job competition process. In January 2005, the grievor was advised that this series of temporary secondments would be coming to an end. (Her assignment continued until August 2005 when she was returned to her home position.) Upon being advised that the secondment would be ending, the grievor filed a grievance alleging a violation of Article 8.6.3 which reads as follows: Where a vacancy as described in Article 8.6.1 [Article 8 deals with "Temporary Assignments"] has been filled pursuant to Article 6 (Posting and Filling of 3 Vacancies or New Positions) and the incumbent has filled the position for at least eighteen (18) months, the Employer may assign him or her to the position on a permanent basis and Article 6 (Posting and Filling of Vacancies or New Positions) does not apply. This provision can simply have no application to this grievance. Firstly, while I need not make a final determination on the point, the provision appears to confer a right on the employer- the right to fill a vacant position without the usual need to engage the posting and job competition process. It does not appear to impose any obligation on the employer to do so and neither does it confer any right on the employee to require the employer to do so. But even apart from that, the manner of assigning an employee to the position on a permanent basis under the article is dependent on certain preconditions. More specifically, the right to permanently assign an incumbent to the position under this article is contingent upon the incumbent having initially come to the position through the posting and (if necessary) job competition process contemplated under Article 6. That simply did not happen here. There was no dispute that the grievor's assignments to the position had all been by way of temporary assignment without any posting. It can been seen that this provision seeks, in some measure, to maintain the integrity of job postings and resulting competitions, processes which provide rights and safeguards to bargaining unit employees generally. Thus, the general scheme permits certain temporary positions to (in circumstances like the grievor's) be filled without postings and also allows (in Article 8.6.3) certain permanent assignments to be made without any posting at all (but only where the incumbent has initially filled the position as a result of the posting procedure). What it does not permit, however, much less require, is that the same position be filled initially on a temporary basis and subsequently on a permanent basis without any posting in either case. And if there is no right or obligation whose exercise or non-exercise can be the legitimate source of complaint, then the employer's motive in not exercising a right it does not have is of little moment. For these reasons alone, I am satisfied that there simply is no case for the employer to meet in respect of this grievance. Notwithstanding that, and putting aside the employer's further objection to the tardy assertion of discrimination, I will explain why, even the addition of this assertion does nothing to alleviate the fundamental frailty of the grievance. The grievor testified that she filed the 4 grievance because she believed there was a term in the collective agreement (presumably the one just cited) which contemplates a "rollover" into permanent status after 18 months. And further, in support of the claim of improper discrimination, she testified that a number of other employees working alongside her in the call centre were "rolled over" into permanent status while she was not. In her evidence, however, the grievor made a number of other things patently clear. First, while she had asserted that a number of other employees doing the same job as her had been "rolled over" or otherwise "became permanent", she had no information as to their status prior to becoming permanent. In that regard, for example, she admitted to having no knowledge as to the distinction between classified and unclassified employment. When asked whether she was aware of the fact that unclassified employees doing the same job for 18 months can (in certain circumstances) be converted to classified employment, she responded that she never paid attention. And when asked specifically about the circumstances of one of the named employees, whether she knew that was how he became classified, she responded in the negative adding that she just knew he was there for some months and then became permanent. While the grievor complains about not becoming "permanent" like the others she points to, that is not really the true nature of her complaint. The others pointed to may have not been permanent, i.e. they may have been formerly unclassified employees who were converted to classified status. But the grievor is already "permanent", a full-time classified employee. What she complains about is her temporary secondment not becoming permanent. But without more specific details regarding the treatment of the other employees pointed to, we are simply unable to determine or conclude that the grievor was treated differently (on the basis of whatever prohibited ground may be pointed to) than other similarly situated employees. Put more specifically, it was not part of the union's case, nor does the grievor's evidence serve to establish, that any other employee, on a temporary secondment from their home position to the position of Call Centre Agent, was made "permanent", i.e. had their home position/classification changed to that Call Centre Agent with its attendant classification. In this context, there is simply no basis for any claim of improper discrimination undermthis grievance 5 In short, the provision relied upon by the grievor confers a right upon the employer. The grievor's complaint is, in essence, that the employer failed to exercise that right. Having regard to the foregoing, however, it is clear that the preconditions to the exercise of the employer's right were not present. I can therefore see no legal basis for any claim that the employer has violated the collective agreement provision relied upon by the grievor. The second grievance relates to an incident that took place on March 8, 2005. The grievor asserts that the employer violated her rights in relation to Articles 3.1 and 3.2 of the collective agreement, which provide: 3.1 There shall be no discrimination practised by reason 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 Ontario Human Rights Code (OHRC). 3.2 There shall be no discrimination or harassment practised by reason of an employee's membership or activity in the Union There was simply no evidence whatsoever directed to support any claim of discrimination or harassment under Article 3.2. With respect to the alleged breach of Article 3.1, the facts relied upon are as follows. On March 8, 2005 an email sent by a bargaining unit employee found its way to the grievor's supervisor. The text of the email was as follows: I received a call from a lady. . . [who]. .. called to make [ a] complaint about a CMU agent. She said this lady with heavy Indian accent was very rude and she just won't help her. She also gave her a wrong amount owing. She also hang up the phone. She wants to have one of her manager contact her. At lunch time the same day the grievor was called into her supervisor's office. The grievor testified that her supervisor said a member of the public had complained by indicating someone had been rude and hung up on her and that it was a person with a thick Indian accent. 6 The grievor acknowledged that, at the time, she gave no indication to her supervisor that she had no knowledge of or otherwise denied the incident and neither did she indicate to her supervisor that she was at all perturbed by the inquiry or its nature. Rather, she gave no response at all to any of this but returned to taking her lunch and then returned to work. The employer did not pursue the matter and no discipline was ever imposed on the grievor. Two days later, however, the grievor forwarded an email to her supervisor complaining about the meeting: that it was unscheduled, that she was not provided union representation, that she was presented with false and unsubstantiated allegations and that an "inappropriate racist remark was allegedly made about me which was very hurtful to me." The grievor asked that the matter be resolved expeditiously but, in her request, gave no indication of what was being sought. When that unspecified resolution did not occur, the instant grievance was filed. The grievor was also irked by a comment made at a subsequent grievance meeting. One of her supervisors said if a complaint were filed identifying the employee complained of as someone with an Irish accent, the employer would likely discuss the matter with the employee in their workplace who does have an Irish accent. In dealing with this grievance, it is important to distinguish what it is about from what it is not, something, which given the imprecision of the grievor's testimony, is a more difficult task than it ought to be. First, it is clear that the grievor, while the level of her attention to the matter and the nature of her proffered explanations may have varied over time, categorically denied any wrongdoing of the type alleged by the caller. This grievance is not about any alleged misconduct by the grievor. No discipline was imposed on her and the employer need not establish any wrongdoing on her part to succeed in this grievance. Further, on its face, it goes without saying that there is nothing improper in the employer investigating a complaint by a member of the public it directly serves. On the contrary, one would expect the employer to do so. And the fact that this results in a conversation between a supervisor and an employee is not the least surpnsmg. 7 The grievor was given every opportunity during her testimony to explain the nature of her objection and concerns related to the grievance. And while her explanation was less than clear and was wanting in substance, there is no doubt that it was the reference to her Indian accent, made by the apparently unsatisfied caller as reported to her by her supervisor, which is at the heart of the claim of discriminatory treatment: this appears to be the "allegedly racist" statement adverted to in the grievance. Indeed, it was the grievor's clear subj ective view that this incident (and, in particular, the reference to her Indian accent) had a great impact on her, that she was mentally shocked and went into depression as a result. Within weeks of the incident the grievor went off sick and has yet to return to work. It is unnecessary for me to comment on the plausibility of any direct causative link between the incident and the grievor's subsequent years of absence. My inquiry is limited to the issue ofliability, i.e. whether or not there was improper discrimination contrary to the collective agreement. If there was, then the question of the consequences of the breach would have to be re-visited in a later phase of these proceedings. In one fashion or another and on several occasions during her testimony, the grievor was asked, both in chief and in cross-examination, to explain why she felt that the reference to her Indian accent was racist or discriminatory. Despite these multiple opportunities, she was, apart from suggesting it was obvious and restating that conclusion, unable to provide any cogent explanation. Counsel for the grievor engaged in a valiant effort on her behalf to provide the requisite interpretive key to the evidence. In the result, however, and not for want of skill or advocacy, he was only very marginally more successful than the grievor herself. Counsel submitted that the reference to the grievor's Indian accent was clearly related to her ancestry or place of origin or ethnic origin. And as these are prohibited grounds of discrimination under the collective agreement, managers ought to be particularly sensitive in employing language that tends to single out persons on the basis of such criteria. This admonition is undoubtedly sound. Having said that, however, it does not assist me in concluding that the evidence before me discloses any case for the employer to meet. 8 The comment in question was, it would appear, made by a member of the public complaining about the service she had received. That complainant may have had an improper motive, but there is nothing in the evidence which points to that conclusion. But even if she did, nothing in the evidence points to the conclusion that the manager, in reporting the comment, was echoing, adopting or reinforcing any racist attitude. I have no doubt that the grievor felt singled out because of her accent (and therefore because of her ancestry, heritage and ethnic origin). Indeed, while a comment may not be borne of any racist intent, it may still be experienced as such by the listener. But in the instant case there was no employment related disadvantage, liability or punishment imposed on the grievor by reason of any prohibited ground. The grievor's accent was used as an identifier (not as the basis for any disadvantage) in much the same way that other physical characteristics such as hair colour or height, or even physical disability or race, might be used in a legitimate effort to identify someone. Even accepting the subjective response of the grievor, i.e. that she felt and believed she was the object of invidious discrimination, I am not satisfied that alone is sufficient to warrant the conclusion that there is a case for the employer to meet, even in the context of the current non-suit motion. In the absence of any evidence to warrant or even permit the objective conclusion of any prohibited discriminatory conduct, there is no case for the employer to meet and there is no basis for the instant litigation to continue. Having regard to all of the foregoing, the employer's motion is granted and these grievances are hereby dismissed. Dated at Toronto this 5th day of December 2007. ....~ '~#i:L'~'; #,<" :. : .. ~url:'~ . ,,., At ".~~ft. ~ - ~ . ,., .... ". N. Bram Herlich, Vice-Chair