HomeMy WebLinkAbout2016-0806.Louis.19-07-29 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# 2016-0806; 2017-3618
UNION# 2015-0503-0015; 2018-0503-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Louis) Union
- and -
The Crown in Right of Ontario
(Ministry of Training, Colleges and Universities) Employer
BEFORE
Diane L. Gee
Arbitrator
FOR THE UNION
Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Stewart McMahon
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING July 8 & 16, 2019
-2-
DECISION
[1] There are three grievances before me in this matter (one yet to be assigned a
Union or GSB number). The first was filed on April 20, 2015 (the “April 2015
Grievance”); the second on January 4, 2018 (the “January 2018 Grievance”) and
the third on July 18, 2019 (the “July 2019 Grievance”).
The Issue
[2] The Employer seeks to have various paragraphs of a Statement of Particulars
filed by the Union struck on one or more of the following grounds:
• The particulars are an expansion of the grievance
• The events referred to are untimely
• The events referred to are irrelevant
• The events do not establish a prima facie case
[3] There is no dispute between the parties as to the test to be applied in considering
each of the objections. Counsel are to be commended for the thorough yet
focussed approach taken in this regard. Below, in addition to setting out the test
for each of the above grounds relied upon by the Employer, the issue of the
admissibility of evidence that goes to “context” is discussed. The issue of when
evidence constitutes “contextual evidence,” which is admissible, arises from the
argument advanced by Union counsel that a determination as to whether or not
paragraphs ought to be struck, should be made only after hearing all of the
evidence. Counsel argued that it is often not until the evidence is being heard
that the value of, what might otherwise look like irrelevant evidence, becomes
apparent. This argument is valid, and care must be taken not to strike particulars
that may serve to explain or characterize relevant evidence, lest the adjudicator
be left with an incomplete picture of events.
The Tests To Be Applied
[4] The following authorities were referred to by the Employer: OPSEU (Brown-
Bryce et al) and Ontario (Ministry of Community Safety and Correctional
Services), GSB# 2014-1158 et al., May 12, 2016 (Dissanayake); Re Becker Milk
Company Ltd. and Teamsters Union, Local 647, [1978] O.L.A.A. No. 71; Re
Greater Niagara General Hospital and Ontario Nurses’ Association, [1981]
O.L.A.A. No. 2; OPSEU (Smith et al.) and Ontario (Ministry of Community and
Social Services), GSB# 2006-2107 et al., June 2, 2008 (Gray); and OPSEU
(Cooper) and Ontario (Ontario Clean Water Agency), GSB# 2017-1413, April 15,
2019 (Anderson). The Union referred to: OPSEU (O’Brien) and Ontario (Ministry
of Community Safety and Correctional Services), GSB# 2003-1881, January 21,
2011; OPSEU (Fletcher) and Ontario (Ministry of Natural Resources and
Forestry), GSB# 2016-2529 et al., September 26, 2018 (Petryshen); and OPSEU
-3-
(Lunan) and Ontario (Ministry of Labour), GSB# 2013-0513 et al., May 15, 2015
(Leighton).
i) Determining the timeliness of the allegations under the provisions of the Collective
Agreement
[5] Article 22.2 of the Collective Agreement provides “… an employee may file a
grievance, … within thirty (30) days after the circumstances giving rise to the
complaint have occurred or have come or ought reasonably to have come to the
attention of the employee.…” Article 22.10 provides that 22.2 does not apply to
complaints of sexual harassment. Pursuant to Article 22.14.1, a grievance that is
not filed in accordance with the time limits is “deemed to have been withdrawn.”
[6] Article 22.14.7 of the Collective Agreement provides that the GSB has the
jurisdiction to apply section 48(16) of the LRA to extend timelines in the
Collective Agreement. Section 48(16) of the LRA provides that an arbitrator can
extend timelines “where … satisfied that there are reasonable grounds for the
extension and that the party opposite will not be unreasonably prejudiced by the
extension.”
[7] A grievance that was not processed according to the timelines in the Collective
Agreement and, in respect of which no extension has been granted by the GSB,
is said to be “untimely” and “deemed to have been withdrawn.”
[8] A grievance that contains more than one allegation can be timely in respect of an
allegation that falls within the timelines set out in the collective agreement and
untimely with respect to those allegations that fall outside of the time lines set out
in the collective agreement. A single grievance can contain “timely” allegations
and “untimely” allegations.
ii) Determining whether the events particularized amount to an expansion of the
grievance
[9] An arbitrator’s jurisdiction is limited to determining the issues that are raised by
the grievance. Issues raised in a grievance are referred to as “in-scope.” The
Union cannot add additional issues to the grievance that has been filed. Where
there is an attempt to add issues to a grievance, it is said that the Union is
attempting to “expand the scope of the grievance”; the Union is attempting to add
“out of scope” issues to the grievance.
[10] When an issue as to whether the Union is attempting to expand the scope of the
grievance arises, it must be determined whether or not the issue in dispute falls
within the scope of the grievance as referred to arbitration. The leading case in
this area is Re Blouin Drywall Contractors Ltd. And Carpenters Local 2486,
(1975) 1975 CanLII 707 (ON CA). The following summary of the principles to be
applied when determining the scope of a grievance is contained in Re Greater
Sudbury Hydro Plus Inc. (2003) 121 L.A.C. (4th) 193 (Dissanayake):
-4-
14. I find two countervailing principles in the foregoing statement by the Court of
Appeal. The first is that, where on a liberal reading of the grievance an issue,
although not articulated well, is inherent within it, an arbitrator ought to take
jurisdiction over that issue, despite any flaws in form or articulation. However,
there is also a countervailing principle to the effect that an arbitrator ought not, in
the guise of “liberal reading”, permit a party to raise at arbitration an issue which
was not in any manner, even inherently, joined in the grievance filed. To do that
would be to defeat the very purpose of the grievance and arbitration procedure.
[11] This Board in Re Labanowicz 2012-3224 etc. (Lynk) decision dated September 12,
2014, referred to the Greater Sudbury Hydro Plus decision (supra) and wrote at
para. 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. One useful indicator is to ask whether the other party
reasonably should have understood upon reading the grievance and engaging in
the grievance process that the new claim in question was organically part of the
original grievance: Re Greater Sudbury Hydro Plus, supra.
iii)Determining the timeliness of the events particularized in support of a harassment
grievance
[12] The GSB has determined that evidence of events that occurred within a period of
three years prior to the filing of a harassment grievance can be adduced.
Exceptions are made where necessary to ensure that probative evidence is not
excluded. Further, as stated in Ontario Public Service Employees Union
(Cooper) v Ontario (Clean Water Agency), 2019 CanLII 42398 (ON GSB) by
Arbitrator Anderson:
The three-year rule, however, does not provide a basis to expand the grievance
before an arbitrator. It also does not render what would otherwise be irrelevant
evidence relevant. Evidence is not admissible simply because it falls within the
three years (or such other period as is appropriate in the circumstances), it must
be relevant to proving the incident or incidents which form the basis of the
grievance constitute harassment.
iv) Determining whether or not the events particularized establish a prima facie case
[13] The test to be applied in order to determine if particularized allegations make out
a prima facie case is to ask if the facts asserted, if accepted as true, are capable
of establishing the elements necessary to substantiate the violation alleged.
Accepting the particulars as true, do they establish the violation that is alleged?
-5-
v) Determining whether the events particularized are relevant
[14] The test of “relevancy” can be stated in a variety of different ways. For the
present purposes, it is sufficient to state evidence is “relevant” if it goes to
proving or disproving an issue in dispute.
vi) Context
[15] Where the particulars refer to events outside of the allegations that fall within the
scope of the grievance, that are interconnected with allegations that are within
the scope of the grievance, those out of scope events may be made relevant
because they explain, characterise or contextualise the events within scope. The
fact that evidence of such out of scope events is admissible does not bring the
out of scope events within the scope of the grievance, it simply means that
evidence of the event, in so far as it explains, characterises or contextualises the
events within scope, and thereby assists in proving or disproving an issue in
dispute, is relevant. Where a particular provides such context, a determination
as to its relevance may, as Union counsel argues, be best addressed during the
hearing itself or at the end of the case.
The Scope of the Grievance
[16] The April 20, 2015 grievance reads as follows:
I grieve, specifically but not exclusively, that the employer violated articles 1.6, 2
and 3 and by failing to properly utilize me in my role and have transferred duties
to another Employee outside of the bargaining unit. The Union reserves the right
to rely upon any other applicable articles, acts, legislation, policy or statutes.
Settlement Desired
Full Redress
To be reassigned my full duties as outlined in my job description
For demoralizing and unmeaningful direction and tasks from management to
cease
Compensation for any and all lost time, credits, earnings.
Employer to establish and maintain a workplace of respect, dignity and equality.
Monetary compensation for emotional suffering and professional embarrassment
Any other settlement deemed appropriate by an arbitrator.
[17] Article 1.6 prohibits the Employer from taking action such as reclassification that
would result in an OPSEU bargaining unit member being moved to another
bargaining unit. Article 2 is the management rights clause, and article 3
addresses discrimination and harassment.
[18] On the face of the grievance there is an allegation that “the Employer”, who the
particulars state was a manager by the name of Teresa Damaso, did not utilize
the grievor in her role but rather gave her duties to an employee outside of the
-6-
bargaining unit and that such amounted to discrimination and/or harassment (the
“Damaso Event”). The Employer argues that, looking only at the words set out
on the grievance form itself, the Damaso Event is the only allegation raised by
the grievance. It does not raise a general or broad allegation of harassment.
[19] The grievor filed a WDHP complaint one week after the filing of the April 2015
grievance. It includes reference to a number of allegations. In keeping with the
usual process, the grievor discussed the complaint with a WDHP advisor. The
WDHP advisor then created two “Statements of Allegations” (“SOFA”) setting out
the allegations to be pursued. One of the SOFA created captured the Damaso
Event and the other SOFA captured an allegation that a manager by, the name
of David Fulford, sexually harassed the grievor by saying to her: “You look like
you are on a line up in a club waiting for the next dance” (the “Fulford Event”).
Notwithstanding the Employer’s position that the grievance does not include the
Fulford Event as an allegation, the Employer does not seek to strike paragraphs
pertaining to this event as the time limits in the Collective Agreement for the
processing of a grievance do not apply to allegations of sexual harassment. The
Employer is content to have the Fulford Event included in the April 2015
grievance for this reason. The Employer does, however, contest that the
grievance includes any events other than the Damaso and Fulford Events and in
support of this position points to the fact that the April 2015 SOFAs refer only to
these two events.
[20] The Union contests that the April 2015 Grievance is restricted to the Damaso and
Fulford Events. The Union disputes that the fact that the SOFAs were restricted
to the Damaso and Fulford events is relevant to a determination as to the scope
of the April 2015 Grievance. The Union relies on the WDHP process in support
of its position that the SOFA may contain only some of the complaints that the
grievor was advancing. The SOFA, the Union argues, should not define the
scope of the grievance.
[21] It is my determination that the issues raised by the April 2015 Grievance are the
Damaso Event and, given the Employer’s agreement, the Fulford Event only.
The words of the grievance relate only to the Damaso Event. Both the statement
of the grievance and the settlement desired relate directly to this event. Only by
reading a few select words of the grievance out of context and giving them an
overly broad meaning could the grievance be construed as going beyond the
Damaso Event. I agree with Union counsel that the SOFA are not likely a
reliable indicator of the scope of the grievance, particularly where the Union has
no participation in the process. I have not relied on the SOFA in coming to my
decision.
[22] The January 2018 Grievance is a very broad grievance alleging discrimination
and harassment. It is not restricted to a single or particular event, manager or
employee. The January 2018 Grievance refers to harassment from a co-worker
by the name of “Shirin Almashni.” As set out above, in the case of a harassment
grievance, the Union is entitled to adduce evidence going back three years and
-7-
hence evidence going back to January 2015 would be relevant to establishing
the violations alleged in the January 2018 Grievance.
[23] The July 2019 grievance refers to an interaction the grievor had with Ms.
Almashni in February 2016 that is alleged to amount to harassment (the “2016
Almashni Interaction”).
Challenges to the Particulars
[24] With the foregoing in mind, I turn to the Employer’s challenges to paragraphs of
the Statement of Particulars.
Paragraphs 5, 90, 91 and 92
[25] The Employer challenges paragraphs 5, 90, 91 and 92 in so far as they relate to
events during the period of time before Ms. Damaso became the grievor’s
manager on the basis that it would represent an expansion of the grievance. The
paragraphs in issue read as follows:
5. Since joining this branch, the Grievor has never had a performance
development plan (PDP) or learning plan done by any of the directors. Having a
PDP or learning plan in place is mandatory for all staff. The Grievor viewed this
as a way of setting her up for failure and blocking her from achieving any further
promotions, developmental opportunities, or training in the OPS.
…
89. On December 3, 2015 the Grievor returned to work and began a
graduated return to work.
90. In her return to work and accommodation meeting on this day, the Grievor
brought up the subject of not having ever had a Performance Development Plan
(PDP) done since she had joined PSDB in December 2010.
91. A PDP is to be completed twice a year and it is mandatory that every staff
member have a meeting with their supervisor to discuss their PDP. The Grievor
viewed the fact that she had never had a PDP in place as a hindrance to her
promotional opportunities, professional development, job shadowing, mentoring,
and training opportunities in the OPS.
92. In this return to work meeting, the Grievor was advised by Ms. Damaso
and Merle Rosenstein that the PDP was being revised. The Grievor was then
emailed a copy of a revised PDP for review.
[26] The above paragraphs provide context and are thus relevant on that basis. They
are also relevant to the allegations contained in the April 2015 Grievance to the
extent that they cover a time period during which Ms. Damaso was the grievor’s
manager. For these reasons, the paragraphs will not be struck from the
Statement of Particulars.
Paragraphs 7 – 10 and 20 -27
-8-
[27] The Employer seeks to have paragraphs 7 – 11 and 20 -27 struck on the basis
that they are untimely and/or an expansion of the grievance. The paragraphs
read:
7.Ms. Almashni and Ms. Dafoe would leave the office early and expected the
Grievor to complete their work. On one occasion, Ms. Almashni left the office at 3
pm and asked the Grievor to edit and submit a document to the ADM’s office which
was being reviewed by Senior Manager, Sarah Vanduzer (“Ms. Vanduzer”). The
Grievor did not do as Ms. Almashni requested because it was not the Grievor’s duty.
When Ms. Almashni called the Grievor to inquire whether she had done what she
had instructed her to do, the Grievor informed her that it was not her job. Ms.
Almashni then came into the office and began yelling at the Grievor indicating that it
was her job to do their work when they are not in the office. [this is alleged to have
occurred between 2011 and October 2013]
8.Ms. Almashni and Ms. Dafoe would constantly bully the Grievor and the other
Administrative Assistants ordering them to do work which was supposed to be within
the job duties of the Operations Coordinators.
9.The Grievor and the other Administrative Assistants had no way of opposing these
orders because Ms. Dafoe had documented that these were their tasks in a
“process manual”. Ms. Dafoe had designed the “SDB process for completing
incoming request for information and data” in which Ms. Almashni’s and Ms. Dafoe’s
roles and responsibilities were assigned to the Director’s Administrative Assistant.
10.Ms. Almashni and Ms. Dafoe were referred to as “professional email flippers” by
those in the workplace. This was due to the fact that their sole task was forwarding
briefing notes and other documents when they were completed to the ADM’s office.
However, if those documents were returned to be edited for grammatical errors they
would forward them to the Grievor.
…
20. On April 18, 2013 Ms. Dafoe swore at the Grievor, which the Grievor
documented in an email sent to her. Ms. Dafoe also sent an email to Ms. Simmons
falsely accusing the Grievor of attacking her.
21. On April 29, 2013 the Grievor presented a doctor’s note to management which
indicated a diagnosis of anxiety, brought on by the extensive bullying and
harassment by Ms. Dafoe and Ms. Almashni. The Grievor’s doctor recommended
an accommodation.
22. On May, 14, 2013 the Union set up a meeting with Ms. Simmons to discuss the
Grievor’s accommodation, as well as the harassment and bullying on the part of Ms.
Dafoe and Ms. Almashni which had affected the Grievor’s health. The
accommodation was never granted.
23. In July 2013 Ms. Wendy Dunning was the Acting Director at the time. Ms.
Dunning did not give the Grievor access to her calendar to schedule or move
meetings.
-9-
24. On July 15, 2013 Ms. Dunning informed the Grievor that she did not think that
the Grievor was “in a mental state to be an Administrative Assistant to the Director”.
Ms. Dunning’s comments were formed off the basis of having seen the Grievor’s
medical documentation which indicated her diagnosis of anxiety and need for
accommodations. Ms. Dunning further went on to tell the Grievor that her daughter
has “social anxiety” and does not work. The Grievor felt that she was being
stigmatized.
25. On July 17, 2013 the Grievor called an OPSEU staff representative to set up a
meeting with Ms. Simmons to address the continuous bullying and harassment from
Ms. Dafoe and Ms. Almashni.
26. On July 19, 2013 Ms. Almashni set up a meeting with Ms. Simmons to discuss
the Grievor’s roles and responsibilities. In this meeting she was spoken to.
27. On July 23, 2013 Ms. Simmons emailed meeting notes regarding the July 17th
meeting. In these notes she mentioned that she asked the Grievor if she wanted to
pursue a WDHP complaint against Ms. Almashni because of her inappropriate
comments.
[28] Except for paragraphs 8, 23 and 24, the above paragraphs, may provide context
in relation to the allegations concerning Ms. Almashni in the January 2018 and
July 2019 Grievances. They may also be relevant in that they allege the
Employer was put on notice about Ms. Almashni harassing the grievor. These
paragraphs are not otherwise relevant, and certainly cannot constitute allegations
on which findings of wrongdoing or harassment can be found, given the
considerable delay in having been raised. Paragraphs 23 and 24 are struck on
the basis that they are untimely, an expansion of the grievance(s) and cannot
provide context to the issues in dispute. Conclusionary statements such as
paragraph 8, without any details as to the who, what, where and when, are not
“particulars.” Paragraph 8 is also struck.
Paragraphs 12, 13, 14 and 16
[29] The Employer challenges paragraphs 12, 13, 14 and 16 on the basis that they
are irrelevant and an expansion of the grievances. Specifically, the Employer
argues that there is nothing in the April 2015 Grievance concerning Mr. Paradis.
The allegations concerning Mr. Paradis cannot assist the Board in determining
the in-scope allegations.
12.On October 25, 2011 the Grievor gave Ms. Almashni two (2) taxi chits which
she signed for. The chits were for the purpose of transporting computer
equipment to be used at the branch all-staff meeting.
13. On March 13, 2012 the Grievor learned that while unknown to herself or
management, Ms. Almashni had not used the two (2) taxi chits, but had given
them to her partner, who is not an employee of the OPS, to use to attend an
interview at 593 Bay Street.
-10-
14. On this day, Ms. Almashni’s partner came into work with her at 9am and
spent the entire day in the office besides two (2) hours during which he left to
attend an interview. The next day he returned to the office to use the government
computers to do a test that was a part of the interview. Ms. Almashni asked the
Grievor if she could assist him with Microsoft Excel and she declined.
….
16. In June of 2012 the Grievor was questioned by a manager, Jean Paradis
(“Mr. Paradis”), about the two (2) taxi chits provided to Ms. Almashni. The Grievor
informed Mr. Paradis that she had given those chits in question to Ms. Almashni
and showed him where she had signed for them. Mr. Paradis then showed the
Grievor the chits which had been used on March 13, 2012 but there was no name
indicating who had used them. Mr. Paradis spoke to the Grievor in a manner
which implied that she had used them and was being dishonest about it. The
Grievor was left to prove to the Director that those chits were not used by her.
Ms. Almashni was never disciplined for this behaviour. The Grievor viewed this
as a racially discriminatory incident as she was assumed to be acting dishonestly
and had the burden of proving her blamelessness.
[30] The above paragraphs all pre-date the three-year period preceding the filing of
the January 2018 and July 2019 Grievances. While paragraph 16 falls within the
three year period predating the April 2015 Grievance, the April 2015 Grievance
does not contain a broad and general harassment allegation; it is limited to the
Damaso and Fulford Events. The allegation concerning Mr. Paradis is untimely
and amounts to an expansion of the April 2015 Grievance. The events described
in these paragraphs are not interconnected with the events properly within scope
and thus cannot be said to provide context. Paragraphs 12, 13, 14 and 16 are
struck.
Paragraph 17
[31] The Employer asks that paragraph 17 be struck on the basis that the allegations
contained therein are untimely or represent an expansion of the grievance.
17. On December 17, 2012 Ms. Barb Simmons, Director, emailed the Grievor to ask
her to pick up her 13-year-old daughter from school at Bloor Subway and take her
across the street to the office. This was a common practice.
[32] The allegation contained within paragraph 17 is an expansion of the April 2015
grievance, untimely and did not occur within three years of the January 2018 or
July 2019 Grievances. Paragraph 17 is hereby struck.
Paragraph 18
[33] The Employer asks that paragraph 18 be struck on the basis that the allegations
contained therein are untimely or represent an expansion of the grievance. The
paragraph reads:
-11-
18.Between March to October of 2013 Mr. Fulford harassed the Grievor by
telephone [he] would do this by calling for Director [Ms.] Simmons who would be
away from the office attending meetings at 900 Bay Street. The Grievor would
answer the telephone professionally identifying herself. Mr. Fulford would
respond “who is this”, and the Grievor would again identify herself. When he
would ask for Ms. Simmons, the Grievor would reply that she was attending
meetings at 900 Bay Street giving him the name of the meeting and location. He
would then respond in an aggressive angry tone, “FIND HER and have her call
me”. The Grievor would immediately email Ms. Simmons or call her on her
Blackberry informing her to contact the ADM. Ms. Simmons would reportedly be
upset because she realised that she was being harassed by Mr. Fulford. This
happened continuously until October 2013 when Ms. Simmons reportedly
abruptly left and moved to another ministry.
[34] The allegation contained within paragraph 18 is an expansion of the April 2015
grievance, it is untimely and did not occur within three years of the January 2018
or July 2019 Grievances. It does not provide context of allegations in scope.
Paragraph 18 is hereby struck.
Paragraph 19
[35] The Employer asks that paragraph 19 be struck on the basis that the allegations
contained therein are untimely or represent an expansion of the grievance. The
paragraph in question reads:
19. On March 22, 2013, Heather Cross, Manager of the TLMP unit organised a
team building exercise for her unit in the Grievor’s branch. The team building
exercise was for the unit to go to a viewing exhibition called “Human Rights and
Human Wrongs” in June. The exhibition displayed graphic pictures of Black
lynching. Three (3) Caucasian women in the unit sent emails to their manager
indicating that the pictures were disturbing and declined to go view graphic
pictures of the lynching of Black people for a team building exercise; especially
as there were Black employees in their unit. This was especially so as they have
witnessed Black employees in the branch being racially discriminated against by
management.
[36] The allegation contained within paragraph 19 is an expansion of the April 2015
grievance, untimely and did not occur within three years of the January 2018 or
July 2019 Grievances. Paragraph 19 is hereby struck.
Paragraph 23
[37] The Employer challenges paragraph 23 on the basis that the allegations set out
therein are untimely, and an expansion of the grievance. The paragraph refers to
an acting director by the name of Dunning who is not a part of the April 2015
Grievance and the events alleged in this paragraph occurred more than three
years prior to the January 2018 and July 2019 Grievances. Paragraph 23 reads:
-12-
23.In July 2013 Ms. Wendy Dunning was the Acting Director at the time. Ms.
Dunning did not give the Grievor access to her calendar to schedule or move
meetings.
[38] The allegation contained within paragraph 23 is an expansion of the April 2015
grievance, is untimely and did not occur within three years of the January 2018 or
July 2019 Grievances. Paragraph 23 deals with an event similar to an event the
grievor alleges with respect to Ms. Damaso in the April 2015 Grievance and
therefore might be relevant on the basis that it provides context. Thus,
paragraph 23 will not be struck at this time, however, if evidence along the lines
of that particularized in paragraph 23 is adduced at the hearing, it will be
admitted for the purposes of context only.
Paragraph 30
[39] The Employer asks that paragraph 30 be struck on the basis that it is an
expansion of the grievance and is untimely. The Employer notes that the
allegation is against Mr. Fulford, an individual in respect of whom there is an in-
scope allegation, however, argues that the allegation in paragraph 30 is not
connected to the in-scope allegation and thus is a new allegation. It is further
argued that the paragraph 30 allegation is not connected in any way to the in-
scope allegation concerning Mr. Fulford. Paragraph 30 reads:
30. On November 12, 2013 Mr. Fulford performed a mass surplus of employees
and managers. All staff members were reportedly fearful of being next because
this was ongoing for some time. The Grievor was also afraid that she would be
next, as another black Administrative Assistant Jeannette Hutchinson was
surplused by Mr. Fulford.
[40] The first two sentences of paragraph 30 are a description, from the grievor’s
perspective, of an event that does not constitute an allegation of wrongdoing by
the Employer. To the extent that the last sentence might be construed as an
allegation against the Employer as a result of the actions of Mr. Fulford, it is an
expansion of the grievance and untimely. To the extent the last sentence
explains the grievor’s perception of that event, it might provide context for the in-
scope December 30, 2013 event involving Mr. Fulford and thus might be
admissible as context. For that reason, the paragraph is not struck.
Paragraph 44
[41] The Employer asks that paragraph 44 be struck on the basis that it is an
expansion of the grievance and is untimely. The Employer notes that the
allegation contained within paragraph 44 was referred to in the 2015 WDHP
complaint but did not make its way in to either of the two SOFAs. The absence
of this allegation from both the grievance itself and the SOFAs would reasonably
lead to an assumption that it was not at issue in the grievance. The allegations,
the Employer argues, are untimely and an expansion of the grievance. The
-13-
Employer notes that Mr. D’Alonzo is now deceased such that the Employer
would be prejudiced if required to defend the paragraph 44 allegation.
44. On September 23, 2014, Louis D'Alonzo, Manager, Apprenticeship Unit (now
deceased) came into the Grievor’s workstation unannounced looking for test
papers of forty (40) candidates for the Employment Program Consultant
positions. Mr. D’Alonzo insisted that he had given the Grievor the test papers
despite the fact that the Grievor informed him that she had never received them
and if she had they would be in her bottom drawer. Mr. D’Alonzo invited himself
into the Grievor’s workstation and began to open all the desk drawers in a very
aggressive manner. The Grievor began to panic as she was reminded of a past
incident during her career with the OPS when she was physically attacked in her
workstation. Mr. D’Alonzo went on to inform the Grievor that the EA Mr.
Mohamed had stated he witnessed him handing the Grievor the competition
documents. The Grievor found this difficult to believe as Mr. Mohamed was a
participant in the competition and he had not seen Mr. D’Alonzo give the Grievor
any documents. The Grievor had come into the office to input the evaluation
marks in SharePoint on two (2) consecutive Saturdays to avoid anyone
overseeing the confidential information. The following day, the Grievor was told
that Mr. D’Alonzo had given the documents to one of the panel members, Harry
Bezruchko. It was the Grievor’s view that Mr. Mohamed was brought in by Ms.
Damaso to contribute further to an already poisoned work environment at PDSB.
[42] As indicated above, it is my determination that the April 2015 Grievance is limited
to the Damaso and Fulford Events. The event described in paragraph 44 is not
included in the grievance. It is untimely and an expansion of the grievance.
Paragraph 44 is struck.
Parts of Paragraph 48
[43] With respect to Paragraph 48, the Employer objects to the allegations concerning
the “phone banging” (in italics below) on the basis that this allegation is not part
of the grievance and, while referred to in the 2015 WDHP, did not appear in
either of the two SOFAs. As with the paragraph 40 allegation, the absence of a
reference to the phone banging incident in the grievance or either of the SOFAs
would reasonably lead to the assumption the incident was not a part of the
grievance.
48. In early October 2014 the Grievor spoke to Ms. Damaso about the incident
with Mr. D’Alonzo and her concerns about not being given any tasks. Ms.
Damaso did nothing about this. In the same meeting, the Grievor informed Ms.
Damaso of an incident in which she had witnessed Manager Louise Richard
Beaulne banging the telephone profusely which had traumatized her and other
employees. The Grievor also explained to Ms. Damaso that she was having
chest pains.
[44] The phone banging incident does not form part of the 2015 Grievance. It is now
untimely. The event occurred prior to October 2014, more than three years prior
to the filing of the January 2018 and July 2019 Grievances. The section of
paragraph 48 in italics above is struck.
-14-
Paragraph 61
[45] The Employer objects to paragraph 61 on the basis that the allegation is untimely
and an expansion of the Grievance.
61. On December 9, 2014, Merle Rosenstein, Branch Manager sent the Grievor
an email to run errands for the managers breakfast.
[46] This allegation is in line with the in-scope allegation that the grievor was being
denied her usual duties and being assigned humiliating tasks and thus provides
context. It is not struck.
Paragraphs 73 and 74
[47] The Employer argues the allegation of nepotism in paragraphs 73 and 74 are not
part of the grievance and is irrelevant to the allegations in scope.
73. On March 8, 2015 Ms. Damaso promoted her Executive Assistant Mr.
Mohammed to the permanent position of Employment & Training Consultant.
74. In March of 2015 Ms. Damaso set up an administrative meeting with the
Grievor and the Operations Coordinators Ms. Dafoe and Ms. Almashni to inform
them that she will be hiring and promoting Daniel Gazzellone as the new
Executive Assistant. Mr. Gazzellone’s home position was Client Service Officer
in the Employment Ontario Contact Centre. The Grievor was aware that Mr.
Gazzellone was close friends with Ms. Damaso’s nephew Steve Maura who
worked at PSDB as an OAD10 when the Grievor joined the branch in December
2010.
[48] If paragraph 74 is making an allegation of wrongdoing, the allegation is not part
of the grievance and is thus an expansion thereof. The contents of paragraphs
73 and 74 relate to the in-scope allegation that the grievor’s duties were taken
away from her and assigned to an employee outside of the OPSEU bargaining
unit. As such, the particulars in paragraph 73 and 74 may be relevant as context.
As such, paragraphs 73 and 74 will not be struck but any evidence adduced will
go to context only.
Paragraphs 93 and 94
[49] Paragraphs 93 and 94 are challenged by the Employer as representing an
expansion of the grievance. It is further argued that the contents of paragraphs
93 and 94 are irrelevant as they have nothing to do with the Damaso Event. The
paragraphs read:
93. Also during this meeting, the Grievor was told by Ms. Damaso that she had
been overpaid as she had not entered her attendance in WIN on time and that
the Grievor would have to repay this money.
-15-
94. The Grievor met with Ms. Damaso again on December 9, 2015 about the
pay situation. Ms. Damaso did not have the information in regard to an exact
amount of money which was being deducted. The Grievor asked Ms. Damaso if
this pay could be deducted in a couple of pay periods because the deductions
would cause the Grievor financial hardship right before the holidays. Ms.
Damaso stated that she would get back to the Grievor but she never did and the
deductions of $659.14 and $330.45 were taken from two paycheques in
December 2015. After the holidays, on January 12, 2016 Ms. Damaso asked the
Grievor to sign a Memorandum of Agreement to return the deducted money.
This showcases that the deductions in December were a deliberate attempt to
put the Grievor through financial hardship before Christmas.
[50] This alleged event occurred within the three-year period prior to the filing of the
January 2018 Grievance and accordingly, without prejudice to the Employer’s
right to raise later objections, I decline to strike these paragraphs at this time.
Paragraphs 98, 99 and 102
[51] The Employer asks that paragraphs 98, 99 and 102 be struck on the basis that
there is no grievance before me that alleges a complaint about the WDHP
process during the period of time referenced. The Employer states that, while
there is an allegation in the January 2018 Grievance of the grievor’s status being
changed from suspended to sick, there is no link between the January 2018
Grievance and the allegations in these paragraphs. The Employer seeks to have
paragraphs 98, 99 and 102 struck on the basis that they are irrelevant or an
expansion of the grievance. The paragraphs read:
98. On January 11, 2016 the Grievor contacted Carol Ann Marshall and Jody
Warner of the WDHP department who told her that her claim had been closed
because it had been six (6) months. After much discussion with Ms. Marshall
who told the Grievor that she was not assigned to her case anymore, the
Grievor’s case was reopened and then assigned to WDHP advisor Olayinka
Ekenkwo.
99. On January 25, 2016 the WDHP Advisor set up an internal interview.
…..
102. Also on January 27, 2016 the Grievor had a 2:00 pm teleconference
meeting with the WDHP Advisor. The meeting was cut short because it became
too emotional for the Grievor to discuss the workplace issues she had faced and
continued to face.
[52] Having regard to the particulars in total and the grievances themselves, the
purpose of these paragraphs is unclear. They appear to be simply part of the
chronology of events and not allegations. Assuming they are present to provide
context of the chronology of events, they are not struck.
-16-
Paragraph 126
[53] The Employer explained that an external investigator by the name of Rick
Russell was retained at the instigation of the Employer to look into concerns
about the manner in which WHDP complaints filed by racialized employees were
being investigated. The Employer was investigating its own investigation
processes. Mr. Russell spoke to the grievor in the course of his investigation.
Paragraph 126 of the Statement of Particulars refers to a meeting Mr. Russell
had with the grievor as part of his investigation on behalf of the Employer.
126. On November 10, 2016 the Grievor filed a complaint against investigator
Rick Russell for breaching WDHP policy when he failed to accept evidence from
the Grievor of the names of her witness, and his failure to not give her a copy of
her signed statement immediately after the hearing.
[54] Assuming the Employer to be correct as to the nature of the meeting referred to
in paragraph 126, the meeting was not in connection with a complaint in which
the grievor was either a complainant or respondent. As such, it is unlikely that
the grievor’s rights could be violated at such a meeting or by the conduct of Mr.
Russell. Unless the Union can establish, through the course of the hearing, that
the event described in paragraph 126 is relevant, no evidence as to the event
described in paragraph 126 will be allowed.
Summary
[55] For the reasons set out above, the following paragraphs of the Statement of
Particulars are struck:
• 8, 23, 24
• 12, 13, 14 and 16
• 17
• 18
• 19
• 44
• 48 (the italicized portion)
• 126 (subject to Union establishing relevance during the hearing.
[56] The following paragraphs of the Statement of Particulars are not struck, however,
where the paragraph number is followed by an asterisk, the paragraph has been
found to be relevant as going to context only; it cannot provide the foundation for
an allegation of wrongdoing:
• 5, 90, 91, 92
• 7*, 9*, 10*, 20*, 21*, 22*, 25*, 26*, 27*
• 23*
• 30*
• 61*
-17-
• 73* and 74*
• 93 and 94
• 98*, 99* and 102*
Dated at Toronto, Ontario this 29th day of July, 2019.
“Diane L. Gee”
______________________
Diane L. Gee, Arbitrator