HomeMy WebLinkAbout2017-2476.Hagopian.19-03-13 DecisionCrown Employees
Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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Commission de
règlement des griefs
des employés de la
Couronne
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Toronto (Ontario) M5G 1Z8
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Téléc. : (416) 326-1396
GSB# 2017-2476
UNION# 2017-0340-0016
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Hagopian) Union
- and -
The Crown in Right of Ontario
(Ministry of Finance) Employer
BEFORE
Diane Gee
Arbitrator
FOR THE UNION
Tim Hannigan
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Caroline Cohen
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING March 4, 2019
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DECISION
[1] The Employer has brought a motion to strike paragraphs 6-23, 27-30,
31-54, 55(4), (5), (6) a, b and c, as well as 56-64 from the particulars provided
by the Union on the basis that they advance allegations that do not fall within
the scope of the grievance. This decision deals solely with the Employer’s
motion.
The grievance reads as follows:
Statement of Grievance
I grieve the employer has violated my rights under Art 21 Articles 2.1,
3.1, 3.3 and the Ontario Human Rights Code regarding my discipline
outlined in the August 22, 2017 letter from Jill Eyman.
Settlement Desired
- Full redress and any other remedy deemed fair by an arbitrator.
- a change in Reporting Relationship to a new manager.
[2] The discipline imposed on the grievor in the August 22, 2017 letter
was a five-day suspension.
[3] The articles of the collective agreement referred to in the grievance
read as follows:
ARTICLE 2 – MANAGEMENT RIGHTS
2.1 For the purpose of this Central Collective Agreement and any other
Collective Agreement to which the parties are subject, the right and
authority to manage the business and direct the workforce, including
the right to hire and lay-off, appoint, assign and direct employees;
evaluate and classify positions; discipline, dismiss or suspend
employees for just cause; determine organization, staffing levels, work
methods, the location of the workplace, the kinds and locations of
equipment, the merit system, training and development and appraisal;
and make reasonable rules and regulations; shall be vested
exclusively in the Employer. It is agreed that these rights are subject
only to the provisions of this Central Collective Agreement and any
other Collective Agreement to which the parties are subject.
ARTICLE 3 – NO DISCRIMINATION / EMPLOYMENT EQUITY
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 disability, as
defined in section 10(1) of the Ontario Human Rights Code (OHRC).
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….
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.
…
ARTICLE 21 – DISCIPLINE AND DISMISSAL
21.1 It is understood that the right of the Employer to discipline or
dismiss employees shall be for just cause. The Employer’s right to
discipline or dismiss is subject to the right of an employee to grieve
such action. 21.2 For greater certainty, it is understood that nothing in
Article 21.1 confers on a probationary employee any right to grieve or
arbitrate his or her dismissal.
[4] The grievance was filed on August 24, 2017 and the grievor went off
on sick leave shortly thereafter. The Union asked that the grievance be put
on hold until the grievor returned from sick leave and the Employer agreed.
As a result of this agreement, no FRS meeting was held. A couple of months
later the Union put the grievance forward for scheduling and a mediation date
was scheduled for September 2018. At this meeting, the Union stated that
the grievance raises allegations of harassment and bullying as well as
discrimination on the basis of disability. The Union provided the Employer
with particulars of the harassment, bullying and discrimination allegations it
asserts form part of the grievance one week before the next scheduled date
of March 4, 2019.
[5] The particulars are 38 pages in length and describe a number of
interactions dating back to the spring of 2016 between the grievor and his
manager, the department manager and the branch director that are alleged
to amount to bullying and harassment as well as discrimination on the basis
of disability.
[6] The Employer refers to the Statement of the Grievance as well as the
Settlement Desired as set out on the grievance form and submits that, on its
face, the grievance relates solely to the “discipline outlined in the August 22,
2017 letter from Jill Eymann.” The Employer asserts that the allegation
raised by the grievance is that, by imposing the five-day suspension, the
Employer violated the grievor’s rights under Article 21, Articles 2.1, 3.1, 3.3
and the Ontario Human Rights Code; it is not a general harassment and
discrimination grievance. It is argued that the particulars go well beyond the
allegation in the grievance. The Employer asks that all paragraphs relating
to events other than the circumstances underlying the five-day suspension
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be struck from the particulars.
[7] In the alternative, the Employer asks that the issue as to whether the
Employer had just cause for imposing discipline should be heard first and,
only if it is found that there was no just cause, would the general harassment
and discrimination allegations be heard. In the further alternative, the
Employer asserts that this hearing should be adjourned pending the outcome
of an investigation under the WDHP policy of a complaint filed by the grievor
that contains overlapping allegations and in respect of which an investigator
has been appointed. The Employer argues that the same complaints cannot
be dealt with in two different forums simultaneously.
[8] The Employer raises additional concerns with the particulars provided.
First, the particulars allege that a prior one-day suspension imposed on the
grievor amounted to harassment. The Employer argues that, as the one-day
suspension was not grieved, it cannot form the basis of a harassment
grievance now. Second, the particulars raise issues that arose after the
grievance was filed; given that the grievance is concerned with a specific
imposition of discipline, later events cannot form part of the grievance.
Finally, it is argued that paragraph 54 of the particulars raise issues currently
before the Human Rights Tribunal.
[9] With respect to its position as to the scope of the grievance, the
Employer notes that a Union official drafted the grievance and, the grievor,
who signed the grievance, is a lawyer. It cannot be suggested that the
grievance was drafted by someone inexperienced or was not understood by
the grievor. The Employer asserts that the grievor had a WDHP complaint
outstanding at the time the grievance was filed that raises some of the very
allegations set out in the particulars and thus it would not be expected or
understood that the instant grievance would repeat those very same
allegations. There was no FRS meeting held and at no time prior to the
mediation in September 2018 did the Union, or the grievor, inform the
Employer that the grievance was a general harassment and discrimination
grievance. Thus, there is no basis upon which to find that the scope of the
grievance is other than as set out on its face.
[10] The Employer relies on: Electrohome Ltd. v. International Brotherhood
of Electrical Workers, Local 345 (Seniority Grievance) September 4, 1984
(Rayner); Ontario Public Service Employees Union v. Ontario (Ministry of
Labour) (Jones et al) April 13, 2010 (Abramsky); Greater Sudbury Hydro Plus
Inc. v. Canadian Union of Public Employees, Local 4705 (Armstrong
Grievance) September 25, 2003 (Dissanayake); Society of Professional
Engineers and Associates v. Candu Energy Inc. (Contract Employees
Grievance) June 17, 2013 (Gee); Ontario Public Service Employees Union
v. Ontario (Ministry of Children, Community and Social Services) (Solomon)
December 4, 2018 (Devins) and Ontario Public Service Employees Union v.
Ontario (Ministry of Children, Community and Social Services) (Laderoute)
May 1, 2018 (Gee).
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[11] The Union submits there are two points to consider. The first is the
scope of the grievance and the second is the scope of the evidence.
Referring to the grievance form itself, the Union argues it refers to Article 3
and the Ontario Human Rights Code so the grievance is clearly about human
rights and the Union is not trying to turn the grievance into something it is
not. The particulars are detailing the human rights violations identified in the
grievance itself.
[12] The Union argues that the Employer was well aware of the issues that
have been raised in the particulars from a prior WDHP complaint as well as
concerns expressed by the grievor to his manager, the department manager
and the branch manager. The allegations are of no surprise to the Employer.
The Union states that the grievor does not accept that the prior one-day
suspension he received was appropriate and submits it arose days after the
Employer became aware he had filed a Human Rights complaint.
[13] The Union submits that no inferences should be drawn from the fact
that the grievor is a lawyer. He should not be assumed to have expert
knowledge of the collective agreement or how it works particularly when he
is dealing with serious medical issues. The grievor should not be held to a
higher standard because he is a lawyer.
[14] The Union states that the grievor believes very strongly that the
discipline that occurred cannot be viewed in isolation and, in order to get a
clear picture, all of the events need to be looked at and it is necessary to look
at the motivation on the part of the manager. The grievor is of the view that
the Employer’s discriminatory and harassing behaviour was designed to
create an opportunity to discipline the grievor. It is stated that, when the
grievor filed this grievance it was his view that he was grieving everything,
not just the discipline. The discipline was the straw that broke the camel’s
back.
[15] The Union relies on: Blouin Drywall Contractors Ltd. v. C.J.A., Local
2486, 1975 CarswellOnt 827 (Ont CA); Ontario Public Service Employees
Union v. Ontario (Ministry of Children and Youth Services) (Rafol) March 15,
2013 (Dissanayake); Ontario Public Service Employees Union v. Ontario
(Ministry of Transportation) (Labanowicz) September 12, 2014 (Lynk);
Ontario Public Service Employees Union v. Ontario (Ministry of Public Safety
and Security) December 1, 2003 (Leighton); Ontario Public Service
Employees Union v. Ontario (Ministry of Community Safety and Correctional
Services) (O’Brien) January 21, 2011 (Leighton).
Decision
[16] As stated in Re OPSEU (Jones et al), supra, at paragraph 16, the legal
principals relevant to the issue as to the scope of a grievance are well
established. The starting point is Blouin Drywall, supra, wherein, at page
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204, the Ontario Court of Appeal recognized the labour relations value of
resolving disputes with simplicity and dispatch and determined that issues as
to the scope of a grievance ought not to be won or lost on the technicality of
form. While recognizing a board of arbitration is bound by the grievance
before it, the Court of Appeal stated: “the grievance should be liberally
construed so that the real complaint is dealt with and the appropriate remedy
provided….”
[17] After Blouin Drywall, a further value came to be identified in the arbitral
jurisprudence as relevant when determining the scope of a grievance;
resolving disputes with simplicity and dispatch also requires the parties to be
given every opportunity to resolve disputes during the grievance process
prior to referring the matter to arbitration and this can only happen if both
parties are aware of the scope of the grievance. This value is identified and
discussed in Electrohome Ltd., supra, at paragraph 14:
Although the value in maintaining a flexible approach to grievances
filed before a board of arbitration is readily apparent in so far as the
parties are not operating under the same rules of practice that would
guide counsel in normal litigation, there is another value that must be
kept in mind. The whole process of grievance arbitration, and
grievance procedure, is designed to permit the parties at the earlier
stages to resolve the dispute between themselves. Hence, collective
agreements invariably contain grievance procedure provisions so that
grievances are funnelled to an arbitration board only after the parties
have had a chance to resolve the matter. It is our view that the
comments of Professor Laskin and the decision in the Re Blouin
Drywall case attempt to accommodate both values. If the issue raised
at the arbitration hearing is in fact part of the original grievance, a board
of arbitration should not deny itself jurisdiction on a technical objection
as to the scope of the original grievance. To do so would be to deny
the value of flexibility and would be to compel the parties to draft their
grievance with a nicety of pleadings. On the other hand, if the issue
raised by one of the parties is not inherent in the original grievance, for
the board to permit the party to raise that issue as part of the original
grievance would be to deny the parties the benefit of the grievance
procedure in an attempt to resolve the issue between themselves. In
fact, it would be to permit one party to substitute a new grievance for
the original grievance.
[18] Labour relations are best served when disputes are quickly identified
and simply resolved. That is the goal of the grievance procedure. An issue
cannot be resolved if both parties are not aware of its scope. To have a
matter arrive at arbitration without one of the parties being aware of the scope
of the allegations, and to have lost the opportunity to resolve the matter in a
simpler or faster way than arbitration, does not serve labour relations well.
Further, to allow a party to expand the scope of a grievance beyond that
referred to arbitration is to substitute a new grievance for the one filed (see:
Electrohome Ltd., supra, at paragraph 14) and for the arbitrator to take
jurisdiction over a grievance in respect of which they were not appointed.
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[19] As argued by counsel for the Employer, the jurisprudence establishes
that the test to be applied is whether, upon reading the grievance and/or
participating in the grievance process, the Employer reasonably ought to
have understood that the issue in question was part of the grievance (see for
example, Greater Sudbury, supra). The test is an objective one (see:
OPSEU (Rafol), supra). The considerations relevant to such a determination
are discussed in OPSEU (Labanowicz), supra, at paragraph 22:
22 When faced with this issue, an arbitrator’s considerations would
include some or all of the following: (i) a review of the language of the
grievance, (ii) a review of the language of the collective agreement; (iii)
a consideration of any other admissible evidence that would cast light
on the parties’ understanding of the issues raised by the grievance,
such as the scope of the discussions and exchanges during the
grievance process; (iv) a review of the remedy sought; (v) an
assessment of the time frame involved; and (vi) the degree of
prejudice, if any, suffered by the employer.
[20] There have been cases where an allegation that was not apparent on
the face of the grievance was found to be within the scope of the grievance
because the Employer was found to have acknowledged, during the course
of the grievance procedure, that it understood the issue to be part of the
grievance. However, the cases make clear that it is not enough that the
Employer knew of the existence of the issue at the time of the grievance;
rather, in order for an issue, that is not apparent on the face of the grievance,
to be found to fall within scope, it is necessary for the Employer to have
understood that the issue formed part of the grievance (see: OPSEU
(Solomon), supra, at paragraph 11 and Candu Energy Inc., supra at
paragraph 51).
[21] The issue for determination is thus whether the Employer ought to
have reasonably understood that the grievance involved allegations of
harassment, discrimination and a failure to accommodate during a period of
approximately two years prior to the grievance being filed.
[22] The grievance refers to Article 21 of the collective agreement. Article
21 is entitled “Discipline and Discharge” and provides “It is understood that
the right of the Employer to discipline or dismiss employees shall be for just
cause.” The Employer concedes that the grievance raises the issue as to
whether the five-day suspension imposed on the grievor by the August 22,
2017 letter was for just cause. The grievance further specifically refers to
Articles 3.1 and 3.3 of the collective agreement. These articles prohibit
discrimination and harassment. The grievance also refers to the Ontario
Human Rights Code, albeit without reference to a specific provision. It is a
trite proposition that the Ontario Human Rights Code prohibits discrimination
in the workplace.
-8-
[23] The Statement of Grievance provides that the Employer violated the
articles discussed above “regarding my discipline outlined in the August 22,
2017 letter from Jill Eymann.” The grievance links the violations to the five-
day suspension. The Settlement Desired asks for full redress or any other
remedy deemed fair by an arbitrator and “a change in reporting relationships
to a new manager.” The Settlement Desired suggests that the issue is not
confined to whether or not the discipline was for just cause but includes
issues that, if substantiated, might warrant the grievor reporting to someone
other than his current manager. Such a remedy is generally sought in cases
where an employee alleges they have been subjected to harassment and or
discrimination at the hands of their manager.
[24] Thus, on the face of the grievance, the Employer ought reasonably to
have understood that the grievance alleged that the imposition of the five-
day suspension was not only without just cause but also constituted
harassment and/or discrimination. I do not find that the Employer ought to
have reasonably have understood this grievance to allege that the grievor
had been subjected to a pattern of harassment and discrimination dating
back approximately two years including events that could have been grieved
and were not and events that were the subject of other complaints in other
forums. As argued, given that some of the events the grievor now seeks to
have form part of the grievance had been advanced by the grievor in other
proceedings as harassment and/or discrimination and were not referred to in
any fashion in the grievance itself, it would be reasonable for the Employer
to have assumed they did not form part of the grievance. I thus find that,
aside from the imposition of the five-day suspension, the grievance does not
allege that any other events detailed in the particulars amount to a violation
of the collective agreement or the Ontario Human Rights Code.
[25] The Union argues that, if the additional allegations do not form part of
the grievance, evidence of such allegations remains admissible, as a finding
that the grievor had been subjected to other acts of discrimination and
harassment would support his assertion that the imposition of the five-day
suspension was harassment and/or discrimination. The Employer argues
that evidence of other allegations would not be admissible as they are
irrelevant.
[26] I have determined above that the grievance is confined to the
allegation that the imposition of the five-day suspension was without cause
and amounts to harassment and/or discrimination. The grievor’s manager
and the branch manager were both involved in the imposition of the five-day
suspension. Given the department manager’s position lies between these
two individuals I assume that he also had a role in imposition of the discipline.
The additional allegations that the Union seeks to enter into evidence are all
events that the Union characterizes as harassment and or discrimination by
any one or all of the grievor’s manager, department manager or the branch
director. Given that these allegations do not form part of the grievance,
evidence of such allegations would only go to show that the three individuals
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in question have a propensity, or are the type of people, to harass and
discriminate against the grievor. The law is well settled that, in order for
similar fact evidence to be admissible, it must meet the initial test that it has
relevance for some purpose other than that it tends to show the individual is
the type of person likely to have engaged in the alleged conduct. The
evidence is not admissible for the purpose of arguing the managers harassed
and discriminated against the grievor in the past, thus they were likely to do
so in the case of the five-day suspension.
[27] However, the Union suggests that the evidence may in fact be relevant
to providing an explanation for the grievor’s conduct for which he was
disciplined serve as mitigating circumstances. The first paragraph of the
particulars sets out the grievor’s comments concerning the allegation for
which he received the five-day suspension. The relevant part of the
particulars read as follows:
1. Regarding the first allegation in Susan Halenda’s notice of
hearing concerning the emails I sent to two solicitors, my comments
are as follows:
a) I was quite stressed in July from having far too much work
assigned to me.
b) I didn’t want to disobey the directions that Susan Halenda had
given me in June regarding the priority sequence in which my
files were to be processed.
c) Two clients sent emails to me in early July asking when I
would be able to complete their files, and I had to give them a
reply. I was under a lot of pressure, as I was busy working on
files when I received the emails. I was also at this time
distracted by my upcoming surgery.
d) I had the best intentions when I gave the solicitors my truthful
reply; I said I would not be able to process their files before
my surgery because of the file priority system that I was
obligated to follow. I provided them with the name of our
department manager, Peter Monastyrskyj, if they had any
questions, because it was Peter who advised me in an email
dated June 22, 2017 that I was to follow Susan’s instructions
on how my files were to be processed.
[28] The Union argues that evidence that the grievor was overworked and
under stress as a result of the events that underlie the additional allegations
is admissible as, if it is found that discipline was warranted, the overwork and
stress the grievor was under would be mitigating circumstances that ought to
be taken into consideration when determining whether a five-day suspension
was appropriate.
[29] It is my determination that, to the extent the particulars go to
establishing mitigating circumstances, they are relevant and, except as dealt
with below, are not struck.
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[30] The Employer argues that any allegations that relate to events that
post-date the imposition of the five-day suspension are not relevant. I agree.
If the only basis for the additional allegations is that they may serve to
establish mitigating circumstances events that post date the five-day
suspension are irrelevant. Accordingly all paragraphs that relate to events
that post date the imposition of the five-day suspension are hereby struck.
[31] The Employer argues that the grievor cannot rely on events that
underlie a one-day suspension imposed on March 1, 2017 as it was not
grieved. Dispute resolution is of little value if disputes, thought to have been
put to rest, can continually be advanced. In the case of an event such as the
imposition of discipline, that clearly could have been the subject of a
grievance, and was not, the Employer is entitled to assume that the events
underlying the discipline will not later be brought up and challenged. To
permit the events underlying ungrieved discipline to later be challenged in
another grievance would not only undermine finality it would undermine the
provisions of the collective agreement that require a grievance to be filed and
processed within time limits. It is my determination that the grievor cannot
rely on events that underlie the one-day suspension.
[32] The Employer argues that there are allegations that overlap with an
outstanding human rights complaint and a Workplace Discrimination and
Harassment Complaint and they too cannot be relied upon as the grievor
cannot pursue the same allegations in two different forums. The Employer
is correct. The same allegations cannot be pursued in two different forums
at the same time. The grievor must adjourn or withdraw any complaints he
has before another forum that overlap with his allegations in this matter or he
cannot rely on them in this proceeding.
[33] I hereby direct the parties to consult and jointly agree as to which
paragraphs of the particulars are struck as a result of the above
determinations. If the parties cannot reach a complete agreement, they are
to advise the GSB as to those paragraphs they agree are struck and which
ones are in dispute. I will make a final determination on the ones in dispute.
[34] The Employer, as one of its alternative arguments, asks that the issue
as to whether the Employer had just cause for imposing discipline be heard
first and, only if it is found that there was no just cause, would the general
harassment and discrimination allegations be heard. I have considered this
approach. One of the factors to consider when deciding whether or not to
bifurcate issues is whether the evidence that would be adduced in respect of
the issues overlaps. Where the evidence significantly overlaps any savings
of efficiencies achieved by bifurcation is lost. In this case, I am concerned
that the evidence that would be adduced as to the context within which the
five-day suspension was imposed would overlap with that relevant to the
remaining issues.
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[35] Nothing in this decision should be taken as suggesting, or finding, that
the allegations, as set out in the paragraphs of the particulars that remain,
would serve as “mitigating circumstances.” Mitigating circumstances serve
to diminish a grievor’s culpability. The fact that the grievor considers his
manager to be unqualified, inexperienced and lazy and resists instructions
given to him that he considers to be wrong or to set a bad precedent, would
not service to diminish his culpability. It is the responsibility of staff to follow
the instructions of management. Further nothing in this decision should be
taken as suggesting, or finding, that there was just cause for the five-day
suspension or that a five-day suspension was appropriate in the
circumstances. That has yet to be determined.
Dated at Toronto, Ontario this 13th day of March, 2019.
“Diane Gee”
______________________
Diane Gee, Arbitrator