Loading...
HomeMy WebLinkAbout2016-2838.Assenov.2020-05-13 Decision Crown 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#2016-2838 UNION#2016-0135-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Assenov) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Diane L. Gee Arbitrator FOR THE UNION Jennifer Micallef Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel SUBMISSIONS February 18, 2020; April 1, 2020; April 27, 2020. -2- Decision [1] The Employer has brought a motion to have specific paragraphs, or portions thereof, of the Union’s Statement of Particulars, struck on the basis that they contain allegations that are not properly particularized. The Union objects, citing the over 140 paragraphs of details provided, and contests the Employer’s submission that “particulars” include the names of witnesses. [2] For the reasons that follow, the following portions of the Statement of Particulars are hereby struck: a. The words “and was talking to other staff” at the end of paragraph 15 are struck. b. The last two sentences of paragraph 16 are struck. c. The third last and second last sentences of paragraph 23 are struck. d. The words “and other staff members whom he would work with viewing him suspiciously during this time” of the last sentence of paragraph 26 is struck. e. The second sentence of paragraph 33 is struck. f. The first sentence of paragraph 42 is struck. g. The first five sentences of paragraph 57 are struck. h. The last sentence of paragraph 63 is struck. i. The third last, second last and last sentences of paragraph 89 are struck. [3] It is the Grievor’s allegation that he was subject to harassment and discrimination on the basis of his race and/or as a reprisal for having given a statement in support of a CO (the “complainant”) in connection with her WDHP complaint. [4] The following quote from OPSEU (Morsi) and Ontario (Ministry of Finance), 2008 CanLII 70523 (ON GSB) provides a concise statement as to the Union’s obligation to provide particulars: The collective agreement, in Article 22.14.4 confirms the need for “disclosure of the issues in dispute as alleged by a grievance advanced by the Union …” This Board has consistently found that the employer is “entitled to know the case that it is required to meet” and that the obligation to provide particulars includes receiving “an answer to the questions “when”, “where”, “how” and “who” from the party making the initial allegations”. [5] And in OPSEU (Duffy et al.) v. Ontario (Community Safety and Correctional Services), 2008 CanLII 9602 (ON GSB): It is not necessary for a party to include in its written particulars a description of the evidence by which it will seek to prove any of the allegations of fact set out. It is not necessary for a party to identify in its particulars any witness to any occurrence in question, unless the presence of that particular person on that occasion is a material fact on which the party relies. -3- [6] The Employer seeks to have paragraphs 15 and 16 struck on the basis they do not provide the when, where, how or whether there were any witnesses. Paragraph 15 states that, after the grievor gave his statement in support of the complainant, CO Simpraga told the complainant, CO Charbenneau, CO Miller and “other staff” that the grievor had done so. This paragraph, names the person who conveyed the information and the names of the persons the information was given to with the exception of the “other staff”. It can be inferred from the paragraph that the communication was made verbally. The paragraph states that CO Simpraga told the others after the grievor gave his statement and it can be inferred CO Simpraga told the others before the alleged retribution against the grievor began. I find the time frame provided within which CO Simpraga is alleged to have told the others of the grievor’s statement in support of the complainant is sufficiently narrow to permit the Employer to know the case it has to meet. Except for the reference to “other staff”, the information provided is sufficient. The words “and was talking to other staff” at the end of paragraph 15 are struck. [7] Paragraph 16 carries on from paragraph 15 which, as indicated above, contains the allegation that CO Simpraga leaked to other COs that the grievor had given a statement in support of the complainant. The first sentence of paragraph 16 states that named COs asked the grievor about his involvement in the investigation. It is sufficiently particularized. The next two sentences of paragraph 16 are allegations of retaliation and retribution suffered by the grievor. Some names are listed (the “who”) and some examples of conduct are given but it is not specified who did what. This is not sufficient for the Employer to know the case it has to meet. The last two sentences of paragraph 16 are struck. [8] Paragraph 19 states the grievor felt unbiased investigations were not possible due to relationships between members of senior management and staff. The relationship between Sergeant Dougan and Deputy Bukowski is referenced as an example. I find the particulars provided to be sufficient. I decline to strike paragraph 19 without prejudice to the Employer’s ability to challenge evidence of other relationships between members of management and staff to the extent it is unaware of same. [9] In respect of paragraph 23, the Employer asks that it be struck on the basis that it does not state when, where or how the grievor reported to Sergeant Michelle Harvey that, on November 9, 2014, five named COs heard CO Dougan call the grievor “retard”, “thug hugger” and “idiot”. It can be inferred the grievor reported to Sergeant Harvey close to November 9, 2014, the date on which the comments are alleged to have been made. The “where” can be inferred to be within the institution. The Employer has sufficient information to know the case it has to meet. The Employer challenges the remaining allegations set out in this paragraph on the basis that, although names are given, no other particulars are provided. The first sentence of paragraph 23 provides the date, what was said, who said it and who it was said to. The allegation in this sentence is fully particularized. The last three sentences are observances made by the grievor “immediately” after November 9, 2014. In the third last sentence, it is stated that the grievor began to notice a shift -4- in other COs behaviour towards him and the description of the changed behaviour is set out in the second last sentence. The second last sentence provides the names of the COs whose behaviour changed, however, the description of their conduct is extremely vague. It is not possible to discern what each CO is alleged to have done. The third last and second last sentences of paragraph 23 are struck. In the final sentence, two COs are named as having told the Grievor “they were told not to talk to him.” Given the context of the sentence in the paragraph it is apparent the allegation is that it was CO Dougan who told them not to talk to the grievor. I find the particulars of the final sentence to be sufficient. The final sentence is not struck. [10] The Employer seeks to have paragraph 26 struck on the basis that it is lacking the when, where, how and whether there were witnesses present as well as fails to identify which staff members viewed the grievor suspiciously. The first two sentences of paragraph 26 add little to what is set out in paragraph 25 which has not been challenged. No purpose would be served by striking these sentences. They allege that CO Dougan made detrimental comments about the grievor to three named COs in training (the “trainees”). The timing of this allegation, while not specifically provided, can be ascertained by determining when the grievor was training the three individuals. I decline to strike the first two sentences of paragraph 26. With respect to the final sentence of paragraph 26, it is stated that the comments made by CO Dougan caused the trainees to ask the grievor what he was bringing into the facility and caused staff members to view the grievor suspiciously. The dates on which the trainees asked the grievor what he was bringing into the facility are not provided, however, it can be inferred that such questions would have been asked during the period they were being trained by the grievor. I decline to strike this portion of the last sentence. The last sentence of paragraph 26 also states that CO Dougan’s comments resulted in other staff members viewing the grievor suspiciously during this time. It is unclear as to whether this portion of the last sentence is a statement that, having been told by CO Dougan that the grievor was bringing things into the facility, staff in fact acted in a manner that establishes they viewed the grievor with suspicion or that it is reasonable to infer that they would do so. To the extent it is a statement of the former, no particulars are provided. I strike this portion of the last sentence without prejudice to the Union’s ability to argue such an inference could be drawn. [11] The Employer seeks to have the second sentence of paragraph 33 struck. The Union asserts it is a summary of allegations that precede paragraph 33 and a statement of how it made the grievor feel. Paragraph 33 does not read as a summary of preceding allegations. It states the named Sergeant and COs “continued” to isolate and treat the grievor with suspicion but gives no particulars of such conduct. The second sentence of paragraph 33 is struck. [12] While the first sentence of paragraph 42 appears to be an “introduction” to the remainder of the paragraph, is a very general statement lacking in particulars and it is, accordingly, struck. The conduct described in the remainder of paragraph 42 can be inferred to have occurred in or around January 2015 in the workplace. The -5- names of the individuals are provided. I decline to strike the remainder of paragraph 42. [13] Paragraph 57 refers to a period of time following the promotion of CO Dougan to Sergeant. It states Dougan did not speak to the grievor or provide him with work- relevant updates as are provided to all other staff members. No specific dates on which specific incidents occurred are identified. I am not satisfied the Employer has sufficient information to know the case it has to meet in connection with the first five sentences of paragraph 57 and, accordingly, they are struck. The second last sentence is a statement of what other named COs said to the grievor and the last sentence is a statement as to the impact, on the grievor, of the alleged conduct. I decline to strike the last two sentences. [14] The Employer seeks to have paragraphs 61 to 63 struck because the time period provided is “sometime in 2015”. Paragraphs 61 to 62 contain a detailed description of two separate incidents that are of such unique and notable character that, if they occurred, they would not be easily forgotten by the participants and witnesses. One witness to the first incident, and six witnesses to the second incident, are named in the particulars. The object of the particulars is for the Employer to know the case it has to meet. Given the nature of the allegations advanced, I am satisfied the particulars achieve that purpose. It is not reversing the onus, as the Employer suggests, for it to be in a position to have to ask the alleged harasser if the incident occurred. Such would be the case even if the exact dates on which the events occurred were provided. [15] The first five sentences of paragraph 63 related to the incident set out in paragraph 62. They are sufficiently particularized. The second last sentence of paragraph 63 sets out conduct on the part of Ms. Kitchen that is said to have taken place constantly after the second incident. It is sufficiently particularized. The last sentence is very general containing no particulars of the harassment alleged. The last sentence of paragraph 63 is struck. [16] Paragraph 88 sets out the particulars of an allegation of sexual harassment that is said to have occurred on April 18, 2016 involving an Acting-Deputy. The first half of paragraph 89 alleges conduct on the part of the same individual in the months following an April 18, 2016 described as asking for hugs, looking the grievor up and down and bullying the grievor when he refused her advances by “requesting unnecessary and redundant information in her office alone.” The Employer challenges the allegation that Ms. Mackie-Tomlin requested unnecessary and redundant information in her office alone on the basis there are no particulars as to “what was requested, when it was requested, where it was requested, how it was requested or if there were witnesses to any of the requests.” The allegation is that the Acting-Deputy reprised against the grievor refusing her advances by needlessly calling him into her office alone on the premise of requiring information. I decline to strike the allegation because the nature of the information sought by the Acting-Deputy has not been provided. The Employer has sufficient information to know the case it has to meet. -6- [17] Also in connection with paragraph 89, the Employer seeks to have the last three sentences struck. The third last sentence states the grievor was told by other COs that the Acting-Deputy was sexually harassing them. No particulars are provided. The third last sentence of paragraph 89 is struck. The second last sentence of paragraph 89 contains an allegation that the grievor was told by a named CO that the Acting-Deputy had called female COs derogatory names. The COs who were called derogatory names are not identified and the time frame is not provided. I find this sentence to be insufficiently particularized. The second last sentence of paragraph 89 is thus struck. Finally, the last sentence of paragraph 89 completely lacking in particulars and is thus struck. [18] Paragraph 91 contains a statement that the grievor felt he was treated differently than those in the Programs Department that he had just joined. The Employer asks to have the statement struck as there are no allegations set out earlier in the statement of particulars relating to the Programs Department that provide a foundation for this statement. Paragraph 92 sets out allegations of harassment the grievor experienced in July 2016 while in the Programs Department. I decline to strike paragraph 91. Dated at Toronto, Ontario this 13th day of May, 2020. “Diane L. Gee” ________________________ Diane L. Gee, Arbitrator