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HomeMy WebLinkAbout2016-2440.Grievor.19-07-16 DecisionCrown 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# 2016-2440; 2016-2442; 2016-2443; 2016-2850; 2017-1794; 2017-3718 UNION# 2017-0368-0001; 2017-0368-0003; 2017-0368-0004; 2017-0368-0020; 2017-0368-0385; 2018-0368-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Regina Wong Treasury Board Secretariat Legal Services Branch Counsel HEARING June 21, 2019 -2- INTERIM DECISION [1] On the agreement of the parties, and without prejudice to the position of the Employer with respect to any future decision in this or any other matter, the name of the Grievor is omitted from this decision and its style of cause. [2] The Grievor has filed a number of grievances. On the request of the Employer, the Union provided particulars. The Employer brings this preliminary motion to have some of the Union’s particulars struck and to have some of the grievances dismissed for want of a prima facie case. This decision determines that motion. Striking of Particulars [3] The Employer seeks to strike particulars on two bases. The first is that of “grievance procedure privilege”. Specifically, the Employer seeks to have paragraph 54 of the Union’s particulars struck on this basis. [4] Paragraph 54 forms part of the Union’s particulars in relation to Grievance No. 2017-0368-0001 (hereafter, “Grievance 0001”). For the purposes of this motion, it suffices to note Grievance 0001 alleges the Employer’s decision to award a particular acting assignment to another employee, Reid, was discriminatory. Paragraph 51 of the Union’s particulars alleges the Grievor was told the acting assignment was awarded to Reid on the basis of seniority. Paragraph 54 reads: On March 21, 2017 a Stage 2 meeting was held [with respect to Grievance 0001], attended by the Grievor and Union. At that meeting the Employer changed its position and advised that the Acting assignment was not awarded by Seniority but rather based on date of hire. However, either way the Grievor was senior to Reid as he and Reid were hired on the same date and in such circumstances it is the practice / policy to proceed alphabetically and G. comes before R. The Grievor’s date of hire is therefore before Reid’s. Mr. Fisher was simply making things up in an attempt to justify keeping the Grievor out of the assignment. The real reason was discrimination based on disability and a refusal to accommodate which later became abundantly clear. [5] Grievance procedure privilege refers to the exclusion of evidence of statements made during the grievance procedure relating to the subject matter of the grievance, not limited to offers of settlement. The reason for this “privilege” was well articulated by Arbitrator Pamela Picher in Re Regional Municipality of Ottawa-Carleton and CUPE Loc. 503, (1984) 14 LAC (3d) 445 at p. 448: The purpose of the privilege surrounding statements made during the grievance procedure is to foster an environment in which the parties may freely discuss the grievance at hand with a view to settling it. In our opinion, however, the free discussion that should be promoted within the grievance procedure requires that the privilege extend beyond offers of settlement or statements specifically related to the possible settlement of the issue. Without limiting our view of the full scope -3- of the privilege, we conclude that, ordinarily, it should extend at least, to any statements that generally relate to the subject-matter of the grievance. [6] The Union accepts that such a privilege applies, but argues there are other exceptions. It relies upon North America Mining Ltd. v. IUOE, Local 955 (Dowhaniuk), 2014 CarswellAlta 1339, [2014] AWLD 3654, [2014] AWLD 3655, [2104] AGAA No. 39, 120 CLAS 123 (Wallace) at para. 10: Nevertheless, grievance procedure is not absolute. Sometimes the policy rationale supporting the privilege must be weighed against other important policy considerations. So, there are exceptions to the general rule that grievance communications should not be heard by the arbitrator unless privilege is waived. Among the exceptions are that evidence of grievance procedure communications may be adduced to establish that the grievance was in fact settled in whole or in part: see Brown and Beatty, supra at 3:4342, footnotes 4 and 5; and, e.g. Lehigh Northwest Cement v. Boilermakers’ Lodge D-277, (2005), 142 LAC (4th) 108 (B.C. Arb.) (Taylor). Another exception is that grievance communications may be admitted to prevent the arbitrator from being misled as to the true state of the facts, or to otherwise prevent an abuse of the arbitration process: see, e.g. Ottawa Humane Society v. Ottawa- Carleton Public Employees Union (2005) 137 LAC (4th) 337 (Ont. Arb.) (M. Picher). [Emphasis supplied.] The Union relies upon the underlined sentence. It argues that it must be permitted to lead evidence of the Employer’s changing explanation in order to ensure that I am not misled as to the true state of facts. Alternatively, it argues it would be an abuse of process to permit the Employer to hide its change of position behind privilege. Finally, the Union argues the evidence is necessary because it speaks to the credibility of the Grievor and would provide a basis for challenging the credibility of the Employer’s witnesses. [7] The underlined sentence relies upon Arbitrator Michel Picher’s decision in Ottawa Humane Society. The “true state of facts” in that case were that the employer initially took the position an employee had no right to grieve the termination of her employment as she was a probationary employee. During the grievance procedure the employer abandoned this position. At the arbitration hearing it sought to assert the position once again. At pp. 341-2, Arbitrator Picher stated: As the jurisprudence reflects, the parties must conduct themselves during the course of the grievance procedure in such a way as to respect the process. That process is intended to narrow and define the issues which will ultimately proceed before a board of arbitration if full settlement is not achieved. During the course of that process they are bound by those partial settlements which may be made, and so should not lightly make such partial settlements unless they are willing to be bound by them. If a party which withdraws a position or makes a partial settlement is allowed thereafter to resile from its position, the integrity of the grievance process is substantially undermined. Additionally, the scope and -4- course of the arbitration hearing itself is made substantially less certain, with resulting inefficiencies and potential prejudice to the parties themselves. I agree with that statement. The description “true state of facts” adds nothing to this analysis and is potentially misleading. To the extent Arbitrator Wallace was suggesting some open ended broader exception, I disagree. Permitting introduction of evidence of other statements allegedly made during the grievance procedure would be inimical to the free discussion it is designed to foster. [8] In the grievance before me, the issue is whether the Employer’s decision to award the acting assignment to someone else was discriminatory. The Employer’s position is and was that it was not. There is no suggestion that during the grievance procedure the matter was settled in whole or in part or that there was a change in the Employer’s position. Throughout, the Employer has denied its decision was discriminatory. There has been no abuse of the grievance procedure. [9] Accordingly, para. 54 is amended to read as follows: The Grievor was senior to Reid as he and Reid were hired on the same date and in such circumstances it is the practice / policy to proceed alphabetically and G. comes before R. The Grievor’s date of hire is therefore before Reid’s. Mr. Fisher was simply making things up in an attempt to justify keeping the Grievor out of the assignment. The real reason was discrimination based on disability and a refusal to accommodate which later became abundantly clear. [10] The second basis on which the Employer seeks to strike particulars is on the assertion they relate to matters that were resolved by a previous memorandum of settlement (“MOS”) dated June 20, 2016 between the parties or were addressed by a recent decision of Arbitrator Petryshen with respect to an alleged breach of that settlement. The paragraphs of particulars which the Employer seeks to have struck are 7, 44, 61 - 64. It is useful to reproduce those paragraphs, and, for context, paragraphs 20 and 21 to which the Employer does not object: 7. Previous to 2014 the Grievor did not have a workplace accommodation. Rather, he had an unofficial allowance to leave the workplace for the purposes of escorting his son from home to school. This would require an absence of approximately 9 minutes. The Grievor would do this during his morning break. …. 20. The Parties executed a MOS resolving grievances on June 29, 2016 (Tab 7). 21. The MOS recognized the Grievor’s break would be from 8:30 – 8:45. He used this time period to escort his son to school from home (Tab 7, para 6). …. 44. Upon his return from the Secondment [on December 26, 2016] a new accommodation plan was created. We note that the Employer continued to exclude the family status, child care accommodation need from the plan -5- notwithstanding the MOS agreed break time 8:30 – 8:45 to address this specific requirement (Tab 45). …. 61. The Grievor has an accommodation plan dated January 1, 2017 (Tab 45). It notes the accommodation for his hours of work 7:00AM – 7:00PM. In addition, the Grievor had a MOS dated June 29, 2016 (Tab 7) which allows for him to take his morning break between 8:30AM and 8:45AM to escort his son (then 8 years old) from his house to the school. He has had this accommodation (informal and then formalized in the MOS) for a number of years. The Employer was fully aware that this is the activity that the Grievor undertook during the morning break. The escort takes approximately 9 minutes in total – door to door. 62. On February 21, 2017 the Grievor was asked by Darian Bacon (AC02), if he should record that the Grievor was going for food on his break. This was said in a voice loud enough for staff in the dispatch area to hear. Bacon also said to the Grievor in front of (IT) Justin and Staff to hear that the Grievor should ask everyone if they wanted anything. At this time, Darryl Fisher was in his office with his door open. His office was close to where Bacon loudly made these statements. Fisher had to have overheard these statements. Fisher did not address this. Bacon was fully aware of why the Grievor was leaving the CACC at the time. The Grievor advised Bacon that he should talk to Management. 63. The Grievor and Management are fully aware that other staff also leave the CACC for their breaks and are not singled out and discriminated against in the same fashion. This includes Shelley Harrison on February 25, 2017. 64. Bacon deliberately attempted to single out and humiliate the Grievor in front of all staff for using his break for family status accommodation purposes and Mr. Fisher condoned this inappropriate and unwelcome behavior [sic]. [11] The Employer argues paragraph 7 pre-dates the MOS and is barred by the MOS which, generally speaking, provided it was in resolution of all claims to the date of the MOS. The Employer argues the issues in paragraphs 44 and 61 - 64 were already addressed by Arbitrator’s Petryshen’s award and thus are res judicata. [12] The Union argues that paragraph 7 is simply a statement the Grievor did not have workplace accommodation in 2014 and is not, therefore, barred by the MOS. With respect to paragraphs 44 and 61 to 64, the Union notes the events in question post date the MOS, and argues, therefore, they cannot be struck on the basis that they were resolved by the MOS. With respect to the question of res judicata, the Union argues the only issue before Arbitrator Petryshen was whether there had been breach of the MOS. The question of whether the events in question constituted a breach of the MOS was not placed before Arbitrator Petryshen. Further, while Arbitrator Petryshen commented that they would not have been a breach of the MOS, he did not decide the issue which is before me: whether the alleged events constitute discrimination on the basis of family status. [13] The following provisions of the MOS are relevant for the purposes of the issue before me: -6- WHEREAS the Grievor filed numerous grievances alleging a variety of breaches of the collective agreement, including allegations of improper competitions, discrimination, and harassment related to disability and family status, and including but not limited to violations of Articles 2 and 3 of the Collective Agreement; And WHEREAS the parties wish to resolve the above-noted grievances and all issues related to any grievances filed by the Grievor to date; THEREFORE the Parties agree to the full and final settlement of the above-noted grievances without precedent and without prejudice to any other matter between the parties, on the following terms: 1. The Employer agrees to revise paragraph 1 of Appendix A of Local Operating Practice Section 2 Practice L 2.1 to indicate that Break 1 for the ACO will be 08:30 – 08:45 hours. …. 18. For greater clarity, the Parties agree that this Memorandum of Settlement is not intended to affect or negate the Grievor’s accommodation plan. The parties acknowledge that the Grievor’s accommodation plan will be reviewed in accordance with Employer policy. …. 20. In consideration of the above, the Grievor and the Union release and forever discharge the Employer, and Employees, agents, officials and servants of the Employer, from all actions, causes of action, applications, claims, complaints, grievances and demands of every nature and kind arising out of the circumstances of the above noted grievances …. [14] At paragraph 10, of his decision, Arbitrator Petryshen stated as follows: [10] The final matter I will address relates to paragraph 18 and to some extent paragraph 1 of the Memorandum. There is not an alleged breach of these provisions as such, but [the Grievor] has a concern about them. As the preamble in the Memorandum indicates, [the Grievor] had previously alleged in a grievance that he was being treated illegally by the Employer based on family status. To accommodate the family status issue, [the Grievor] wanted his morning break time changed to 08:30 - 08:45 hours. As one can see from paragraph 1 of the Memorandum, the Employer did agree to change the time of the break to accommodate his request. Indeed, the Employer changed the break time for all the ACOs. There is no indication in the Memorandum that the Employer changed the break time due to the family status claim made by [the Grievor]. It appears to me that the Employer was simply prepared to change the break time to satisfy [the Grievor’s] request without getting into a fight over whether he was actually entitled to a different break time for family status reasons. [The Grievor] has not been denied the opportunity to leave the office during that break time. However, he believes that his right to that break time is in some doubt because there is no -7- recognition in the Memorandum that he was entitled to the new break time for family status reasons. As I indicated to [the Grievor] at the hearing, the right to the new break time is protected by paragraph 1 of the Memorandum. The absence of any reference to family status to justify the new break time does not weaken the status of the accommodation he received. [The Grievor] expressed a concern that his supervisor engaged him in some discussion about his break on two occasions. As I understand it, there is a practice in this workplace that if someone leaves the office, that person is expected to do a coffee or food run. It appears that [the Grievor] had been asked by his supervisor if he was leaving to do a food run. Without explaining why he was leaving the office, [the Grievor] simply advised his supervisor to speak to the manager. I note that the supervisor is a bargaining unit employee classified as an ACO2. [The Grievor] believes that more certainty about the family status basis for his accommodation would mean that he would not be asked questions about leaving the office on his morning break. It is not clear to me that that would be the case. In any event, such discussions with a supervisor about his break do not amount to breach of the Memorandum. The Memorandum was drafted in a particular way by the parties and in the absence of [the Grievor] being denied the opportunity to leave the office during his morning break, there has not been a breach of paragraphs 18 and 1 of the Memorandum. [15] Paragraph 7 of the particulars alleges that prior to 2014 the Grievor was given “unofficial allowance to leave the workplace for the purposes of escorting his son from home to school” and the he did this during his “morning break”. This may have been relevant to one of the Grievor’s claims which was resolved by the MOS. In particular, Arbitrator Petryshen’s award indicates the Grievor had alleged discrimination on the basis of family status and sought as a remedy a change in his morning break time. (I note that paragraphs 8 to 14 of the Union’s particulars made the connection between paragraph 7 and this claim relatively clear. During the course of argument, the Union agreed to strike paragraphs 8 to 14.) As argued by the Employer, this Board’s well established jurisprudence with respect to the effect of a settlement bars the introduction of that evidence: see for example, Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2009 CanLII 43624 (ON GSB) (Leighton). I would also note that it is difficult to see how an unofficial allowance afforded the Grievor prior to 2014 is in any way relevant to the issues before me. [16] Paragraphs 44 and 61 both suggest the Employer had agreed to “accommodate” the Grievor’s family status child care obligations as part of the MOS. As stated by Arbitrator Petryshen, this suggestion is not supported by the MOS. Rather, the Employer simply agreed to change the break times for all employees. There is nothing in the MOS which indicates this was done out of recognition the Grievor had family status child care obligations which required such an accommodation. Pursuing the assertion that the MOS constitutes such a recognition would necessarily require looking behind the written agreement of the parties and further would require evidence with respect to the claims resolved by the MOS. Accordingly, the suggestion that the MOS in any manner constituted such a recognition is struck. -8- [17] Paragraph 61, also suggests that prior to the MOS, the Grievor had been “informally” accommodated in the same manner. This evidence relates to a claim resolved by the MOS. Accordingly, for the reasons stated above, it is struck. [18] Paragraphs 44 and 61 are otherwise unobjectionable, as are paragraphs 62, 63 and 64 essentially for the reasons argued by the Union. [19] Accordingly, paragraph 7 is struck and paragraphs 44 and 61 are amended to read as follows: 44. Upon his return from the Secondment a new accommodation plan was created. …. 61. The Grievor has an accommodation plan dated January 1, 2017 (Tab 45). It notes the accommodation for his hours of work 7:00AM – 7:00PM. In addition, the Grievor had a MOS dated June 29, 2016 (Tab 7) which allows for him to take his morning break between 8:30AM and 8:45AM. The Grievor used this time to escort his son (then 8 years old) from his house to the school. The Employer was fully aware that this is the activity that the Grievor undertook during the morning break. The escort takes approximately 9 minutes in total – door to door. No Prima Facie Case [20] The Employer seeks to have three of the grievances dismissed on the basis that the particulars do not make out a prima facie case. [21] The Employer relies on the test for such a motion set out in Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson): [3] There is little disagreement between the parties as to the principles applicable to a motion alleging the particulars of a grievance fail to make out a prima facie case. In order to succeed, the moving party, in this case the Ministry, must establish that 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”: Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion. …. [5] The Union notes that in Evangelista, 2011 CanLII 41847 (ON GSB) (Harris) the Board stated that it was not appropriate to weigh the quality of the proposed evidence in determining whether there was a prima facie case: see para. 11. The Union asserts that as a result, for example, I would be required to accept as true the assertion that the moon is made of blue cheese. With respect, I disagree. In Evangelista, the proposed evidence was capable of belief. That is not the case with the Union’s hypothetical example. As I noted in Bharti, 2015 CanLII 19330 (ON GSB) at para. 10: -9- In Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R (3d) 1 the Ontario Court of Appeal held that for the purposes of determining whether or not a plaintiff’s pleadings made out a prima facie case, alleged facts that were patently ridiculous or incapable of proof need not be accepted as true. [6] The question is whether the asserted facts, taken as a whole, constitute particulars capable of supporting the violation of the collective agreement alleged. As the Union argues, the words “capable of supporting the violation” are of some significance. What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed. [22] The Union argues it is inappropriate to consider the documents referenced in its particulars as that amounts to “weighing evidence”. In my view, to the extent that portions of documents are adopted by reference in particulars, they form part of those particulars and may be considered for the purposes of a motion to dismiss for no prima facie case. Such consideration does not amount to “weighing the evidence”. [23] The Union relies upon Ontario Public Service Employees Union (Ladouceur et al) v Ontario (Ministry of the Environment) 2005 CanLII 55166 (ON GSB) (Briggs) for the proposition that the purpose of particulars is only to provide a “road map” of intentions. If by this the Union means to suggest that it is not limited to its particulars for the purposes of a no prima facie case motion, I disagree that Ladouceur stands for that proposition. Rather, in the passage relied upon by the Union, Arbitrator Briggs merely observed that in the case before her: “In my view, it is fair to characterize the Union’s particulars as a “road map” of their litigation intentions.” She then proceeded to determine whether or not there was a prima facie case based only on those particulars. [24] The Union relies upon Ontario Public Service Employees Union (Pinazza et al) v Ontario (Ministry of Community Safety and Correctional Services) 2004 CarswellOnt 5817, 131 LAC (4th) 132, 78 CLAS 183, CanLII 55337 (ON GSB) (Herlich) for the proposition that the test on a no prima facie case motion is whether it is “impossible” on the facts alleged by the union to arrive at the conclusion it urges. I do not agree the case stands for that proposition. Rather, as argued by the Employer, Arbitrator Herlich’s use of the word “impossible” in paragraph 24 of his decision was responsive to the argument in the proceeding paragraph that “none of the events as described in the union’s asserted facts can possibly give rise” to the breach it alleged. In my view, the vast weight of authority is consistent with the test I outlined in Martin, and set out above. -10- Grievance No. 2017-0368-0003 [25] This grievance alleges: I [the Grievor] grieve that the Employer [Ministry of Health Long Term Care] CACC Lindsay office has violated the collective agreement and the Ontario Human Rights Code, Privacy Act, but not limited to [sic]. The employer has poisoned my work environment. [26] The grievance relates to the secondment of the Grievor to a United Way campaign. Local management had approved the secondment and told the Grievor his position would be backfilled. As it turned out, initially this was not the case, and there was a shortage of staff. The Grievor believes he was blamed for the short staffing. The particulars in support of this grievance are as follows (subject to the modifications of paragraph 44 directed above): 23. The OPS and UW had a 2016 Sponsored Employee Program opportunity where employees would have a paid LOA between September to December 2016 (Tab 23). 24. The Grievor applied (Tab 25). 25. In order to apply he required his Manager’s support / approval. Mr. Fisher approved and supported the Grievor’s right to apply for the initiative (Tab 24). 26. The Grievor confirmed with the UW that his application was sponsored by work (Tab 26). 27. Wendy Fischer was the Manager, Special Projects – 2016 OPS UW campaign. The Grievor and Ms. Fischer exchanged correspondence about his application and Ms. Fischer connected the Grievor to a UW rep (Tab 27). 28. The Grievor met with the UW reps on July 27 (Tabs 28 and 29). 29. The Grievor was provided an Agreement from UW to execute / review on August 2, 2016 (Tab 30). The Grievor sent the Agreement to Mr. Fisher on August 3, 2016 and asked if the start date of September 12, 2016 could be confirmed. He also asked if Mr. Fisher needed anything else from him. Mr. Fisher advised that the start date was fine but wanted the end date to be December 25, 2016. The Grievor would return to the CACC in December 26, 2016. Mr. Fisher also advised the Grievor he would continue to be called for OT while on Secondment. Further, he stated the September dates were filled (Tab 39). He did not say that approval was outstanding. The Grievor understood he had approval for the Secondment. 30. The Grievor advised the UW of the approval and the dates of the Secondment per Mr. Fisher (Tab 31). 31. On September 8, 2016, the day before the Grievor’s last work day before the Secondment, Mr. Fisher advised approval had not been granted and that the -11- Grievor may be expected to work at the CACC the next week notwithstanding the fact that Mr. Fisher confirmed that his shifts had been backfilled (Tabs 32 and 30). 32. The Grievor made a number of frantic calls on September 9, 2016 in relation to this new information from Mr. Fisher (Tab 33). His reputation and promise to the UW was now in question. 33. Wendy Fischer advised the Grievor in one of the calls that this was a priority project with Treasury Board and no LOA approval was needed if the operator’s supported the Secondment. Darryl Fisher had already supported the Secondment. At 4:40PM September 9, 2016 the Grievor was advised it was “all a go”. The Grievor experienced significant stress / anxiety during this process. 34. The Grievor advised the UW that he finally was approved (Tab 34). 35. The Grievor was commended for his work while at the UW (Tab 35). The Employer was copied on these letters (Tab 35, 26 & 37). 36. In January 2017 the Grievor was advised of the amazing job he did and, in particular, in relation to Hydro One (Tab 38). 37. On September 19, 2016 Mr. Fisher issued a letter to all staff wherein he blamed the Grievor for the down staffing of the CACC. Mr. Fisher notes that he and Mr. Naismith “approved and fully supported” the Secondment. Mr. Fisher suggests that backfilling of the position was not done (Tab 39). However, Mr. Fisher had already advised the Grievor that backfilling of his position was in place (Tab 32) and schedules had been created and posted in August confirming that the Grievor’s shifts were backfilled by FXT staff (Tab 42). These schedules were printed and date stamped August 16, 2016 (Tab 42). 38. There was no operational reason or imperative for Mr. Fisher to single out the Grievor and blame him for a situation that had already been addressed. 39. A co-worker texted the Grievor on September 23, 2016 where the co-worker was of the understanding that it was the deliberate intention of CACC Management (Fisher and Naismith) to blame the Grievor also (Tab 40). A group grievance was threatened. 40. On September 28, 2016, Mr. Fisher issued a follow up memo to all staff noting that all shifts “will continue to be back filled”. Clearly Fisher simply attempted to create crisis, which did not in fact exist, with the intent to have co-workers turn on the Grievor thereby poisoning the work environment for the Grievor (Tab 41). 41. Further blame toward the Grievor was expressed at the LRTC Meeting held on September 21, 2016. Section (m) speaks to scheduled downstaffing and refers to “an AC01 on Secondment” as the reason (Tab 43). However, as noted above, (Tab 42) the schedules created and posted / printed on August 16, 2016 clearly demonstrate that the schedules for the Grievor for the period September 12, 2016 to October 9, 2016 were, in fact, already backfilled. There was no reason, other than to poison the Grievor’s workplace, to single him out for a non-existent crisis which was clearly resolved well before the expiration of the posted schedule. -12- 42. It should be noted that the Grievor did not have remote access to his email while off on Secondment so would not have seen these letters unless he attended the workplace and had time to go back through emails. 43. The Grievor attended at his doctor’s on or about October 19, 2016 and provided an updated accommodation request note (Tab 44). 44. Upon his return from the Secondment a new accommodation plan was created. [Emphasis supplied.] [27] The non-emphasized portions of the particulars are largely allegations of fact. The emphasized portions are deserving of further comment. [28] Paragraph 37 makes the factual allegation that on September 19, 2016, Mr. Fisher issued a letter. The statement that the letter “blames” the Grievor, however, is a conclusion. The letter itself is incorporated by reference into the particulars and is attached to them. It is actually a memo, and reads: DATE: September 19, 2016 TO: All Staff FROM: Darryl Fisher - CACC Operations Manager Re: 02650-01-00113 - CACC Lindsay-Down Staffing ___________________________________________________________ In an effort to be open and transparent with all staff I would like to explain the current situation involving recent down staffed shifts. To provide some history, in June, [the Grievor] applied for a ministry-approved secondment to the local United Way, in which Chris and I approved and fully supported and will continue to support. In July, Emergency Health Services Branch (EHSB) was notified of the Leave of Absence request and the need for backfillng of the shift. To date the EHSB has not provided a decision to the request and have unfortunately directed us not to backfill the position until approval has been given. Chris and I will continue to pursue the EHSB for backfilling of this shift. Operationally we have no control over this situation as our hands are completely tied. Our goal ls to have this situation dealt with sooner rather than later to mitigate the overall impact to our staff and the services we provide. I apologize for this but appreciate the professionalism that all have shown in dealing with this thus far. If you have any questions at all, please contact me in person, by email or phone and I would be more than happy to discuss further. Sincerely, Darryl Fisher -13- [29] There is simply no plausible basis on which this memo can be said to be “blaming” the Grievor. On the contrary, Mr. Fisher appears to have gone out of his way to explain the situation and accept responsibility for it. [30] Paragraph 38 is also based on the September 19, 2016 memo. The conclusion that Mr. Fisher “blamed” the Grievor is not supported. [31] Paragraph 39 makes a factual allegation about a co-worker texting the Grievor and suggests in the text the co-worker indicated management was blaming the Grievor. The text itself is incorporated by reference into the particulars and is attached to them. It constitutes a text exchange between the coworker and the Grievor and states in pertinent part: Ok so management is not filling your spot. What they are doing is down staffing us on nights on our side claiming the ministry approved your secondment but not your replacement. We have started a group grievance. We all want you to know that there is no resentment towards you. You did everything correctly its management that’s making things suck. So if you hear anything know that everyone is happy for you, likes & respects you & misses you. Wow. That is horse shit. I was not aware that they were doing this. I would join the group grievance for sure. Let me know what you need from me. That makes me feel shitty … management never mentioned anything to me. No reason for you to feel shitty. I just didn’t want you to hear garbage coming from the Cacc & think we are blaming you. So don’t worry about anything & have fun &128512; I was told the treasury pays for me. But who knows what BS was told [32] Once again, there is simply no plausible basis on which this exchange can be understood as the coworker saying that management (or anyone else) was blaming the Grievor for the lack of backfill. [33] The first sentence of paragraph 40 is an allegation of fact. It adopts by reference the following memo: DATE: September 28, 2016 TO: All Staff FROM: Darryl Fisher - CACC Operations Manager Re: 02650-01-00114 - CACC Lindsay-Down Staffing ________________________________________________________________ To follow up from a previous memo 02650-01-00113 the issue of down staffing has been resolved. All future shifts have and will continue to be back filled. -14- I appreciate the professionalism that all have shown in dealing with this matter and thank you for our patience as we worked to resolve the issue with Senior Management. If you have any questions, please contact me in person, by email or phone and I would be more than happy to discuss further. Sincerely, Darryl Fisher [34] The second sentence of paragraph 40, which asserts that Mr. Fisher was attempting to create a crisis which did not exist and thereby poison the work environment against the Grievor, is a conclusion or argument. That conclusion is best understood by reference to paragraphs 37 and 41. It appears the Grievor believes the fact that Mr. Fisher told him on or about August 3, 2016 his position would be backfilled, and the fact schedules showing the position as backfilled were posted on or about August 16, 2016, warrant the conclusion that there was in fact backfilling available for his position in September, 2016. In my view, those facts are insufficient to warrant that conclusion, even without regard to the explanation offered by Mr. Fisher in his memos, adopted by reference in the Union’s particulars. [35] The first sentence of paragraph 41 asserts: “Further blame toward the Grievor was expressed at the LRTC Meeting held on September 21, 2016.” Once again this is a conclusion or argument. No particulars are provided in support of this conclusion or argument other than a reference to a section of the minutes of the meeting. That section states: ITEM DISCUSSION ACTION (m) Scheduled down staffing Date Tabled: 21SEP2016 -Discussion about the current downstaffing issue relating to an ACO1 on secondment. -Further to the memo released, management advised they were hoping to receive and [sic] answer about the request for backfilling of the shift from EHSB by the end of the current week (23SEP2016). -If the downstaffing continues, management will make an effort for an equal distribution of downstaffing platoons. -Management to communicate updates to staff. -15- [36] There is no plausible basis on which this can be understood as “blaming” the Grievor. The balance of paragraph 41 advances the argument of poisoned work environment discussed above in relation to paragraph 40. As already stated, the facts are insufficient to warrant the conclusion urged by the Union. [37] I have no reason to doubt the Grievor believes his work place is poisoned. In law, however, the question is whether there is an objective basis for that belief. In my view, the particulars are incapable of reasonably supporting an objective basis for that belief. I note I would have arrived at the same conclusion based on the unmodified version of paragraph 44. Accordingly, Grievance No. 2017-0368- 0003 is dismissed on the basis it fails to make out a prima facie case. Grievance No. 2017-0368-0004 [38] This grievance alleges the Employer discriminated against the Grievor contrary to the collective agreement by failing to call the Grievor for available overtime opportunities while he was on secondment.1 [39] The Union’s legal theory is that the Employer has engaged in discrimination as claimed by the Grievor. Discrimination in employment is made out if a clamant establishes three things: (1) The claimant has a characteristic protected from discrimination under the collective agreement or the Code; (2) The claimant has experienced adverse treatment with respect to his or her employment; and (3) The protected characteristic was a factor in the adverse treatment, i.e. a causal nexus between the first two items. While the burden of proof remains on the claimant through out, because the reasons for the treatment lie within the responding employer’s knowledge, relatively little affirmative evidence is required to establish a prima facie case of discrimination, which gives rise to an “evidential burden” on the employer to provide a response justifying its actions: see Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII), at paras. 55 and 56 and 64 to 74. [40] With respect to this grievance, the Union’s particulars allege: the Grievor has a disability (a protected characteristic under the Code); he was not called for overtime opportunities while on secondment (with two exceptions); and this occurred after his manager told him he would continue to be called for overtime opportunities while on secondment. In my view, the particulars in relation to this grievance looked at in isolation are not capable of giving rise to the necessary causal nexus to make out a prima facie case of discrimination. 1 The grievance form itself alleges the Employer “breached the collective agreement, but not limited to discrimination”. No other provision of the collective agreement has been identified as having been breached. -16- [41] This grievance, however, is linked to Grievance 0001, referenced above. Grievance 0001 alleges the Employer’s decision to award a particular acting assignment to another employee instead of the Grievor was discriminatory. The particulars in relation to Grievance 0001 allege, among other things, that an invitation to express interest in the assignment was posted while the Grievor was out of the workplace on secondment, with a deadline for applying. The particulars allege the Grievor was “deliberately overlooked for OT calls until after the deadline for posting” with the result that he was not aware of the posting in a timely way. The Employer has not sought to strike out Grievance 0001 on the basis that its particulars do not establish a prima facie case. If the Union succeeds on Grievance 0001, it may succeed with the allegation that the Grievor was deliberately overlooked for overtime for discriminatory reasons. I would not, therefore, strike Grievance No. 2017-0368-0004 on a preliminary basis. [42] The Employer argues the manager’s good faith can be inferred from the context and certain documents. Whether or not that would be sufficient to meet its evidential burden to provide an explanation for its actions in a hearing on the merits, it is not relevant on a motion to dismiss for no prima facie case. If the Union’s pleadings establish a prima facie case of discrimination, they establish a prima facie case for the purposes of resisting a motion to dismiss without a hearing. [43] The Employer argues the Union has failed to particularize any actual lost overtime opportunities. The Grievor was on secondment and thus absent from the workplace during the period in question. The Union has plead what it knows. The dates of overtime opportunities during the relevant period, if any, lies within the knowledge of the Employer. [44] For the foregoing reasons, the Employer’s motion to dismiss Grievance No. 2017-0368-0004 is denied. Grievance No. 2017-0368-0020 [45] This grievance alleges: I, [the Grievor] grieve that the Employer MOHLTC Lindsay CACC office has breached the collective agreement and the Ontario Human Rights Code, but not limited to Articles, 2, 3. The management at the Lindsay CACC are harassing me about my approved accommodated plan with the Ministry. This is becoming repetitive, histrionic and and therefore systemic. [46] The particulars provided specifically in relation to this grievance are paragraphs 61 to 64 set out above. For ease of reference, I reproduce them again (with the modification to paragraph 61): -17- 61. The Grievor has an accommodation plan dated January 1, 2017 (Tab 45). It notes the accommodation for his hours of work 7:00AM – 7:00PM. In addition, the Grievor had a MOS dated June 29, 2016 (Tab 7) which allows for him to take his morning break between 8:30AM and 8:45AM. The Grievor used this time to escort his son (then 8 years old) from his house to the school. The Employer was fully aware that this is the activity that the Grievor undertook during the morning break. The escort takes approximately 9 minutes in total – door to door. 62. On February 21, 2017 the Grievor was asked by Darian Bacon (AC02), if he should record that the Grievor was going for food on his break. This was said in a voice loud enough for staff in the dispatch area to hear. Bacon also said to the Grievor in front of (IT) Justin and Staff to hear that the Grievor should ask everyone if they wanted anything. At this time, Darryl Fisher was in his office with his door open. His office was close to where Bacon loudly made these statements. Fisher had to have overheard these statements. Fisher did not address this. Bacon was fully aware of why the Grievor was leaving the CACC at the time. The Grievor advised Bacon that he should talk to Management. 63. The Grievor and Management are fully aware that other staff also leave the CACC for their breaks and are not singled out and discriminated against in the same fashion. This includes Shelley Harrison on February 25, 2017. 64. Bacon deliberately attempted to single out and humiliate the Grievor in front of all staff for using his break for family status accommodation purposes and Mr. Fisher condoned this inappropriate and unwelcome behavior [sic]. [47] Paragraph 64 is not a statement of fact. Rather it is a conclusion and statement of the Union’s legal theory as to why the preceding facts constitute a breach of the collective agreement and the Ontario Human Rights Code. In essence, the Union has pled that Mr. Bacon’s conduct constituted harassment, the Employer, in the person of Mr. Fisher, was aware of this conduct, failed to take any action and thereby condoned it and failed in its duties to ensure a safe workplace. [48] I have no reason to doubt the Grievor experienced Mr. Bacon’s conduct as harassment. In law, however, the question is whether on an objective basis the conduct can be viewed as harassment. The particulars describe an isolated incident which cannot reasonably be described as egregious. In my view, the particulars cannot reasonably support the legal theory advanced by the Union. I note I would have arrived at the same conclusion based on the unmodified version of paragraph 61. Accordingly, Grievance No. 2017-0368-0020 is dismissed on the basis it fails to make out a prima facie case. Conclusion [49] For reasons given above, Grievances Nos. 2017-0368-0003 and 2017-0368- 0020 are dismissed. Paragraph 7 of the Union’s particulars is struck and paragraph 54 of the particulars is to be modified as directed. (Paragraphs 44 and 61 would also be modified but for the fact that they relate to Grievances Nos. -18- 2017-0368-0003 and 2017-0368-0020 which have been dismissed, and thus, like all particulars which relate only to those grievances, are simply no longer relevant.) Dated at Toronto, Ontario this 16th day of July, 2019. “Ian Anderson” ______________________ Ian Anderson, Arbitrator