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HomeMy WebLinkAbout2017-0054.Solomon Smith et al.21-04-12 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# 2017-0054; 2019-0397 UNION# 2017-0546-0002; 2019-0586-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Solomon Smith et al) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel HEARING DATE November 23 and December 14, 2020 - 2 - DECISION [1] The grievance before me alleges discrimination on the basis of union activity. The union activity in question is reliance upon a settlement in relation to a prior grievance filed by the Grievor. That settlement provided the Grievor with a developmental opportunity of six months less a day as a caseworker in the Ontario Disability Support Program (“ODSP”) office at 786 Lawrence. It also stated the Grievor would need to apply for and successfully compete for another position in order to be extended beyond that time. The Grievor alleges that she experienced discrimination while in the developmental opportunity and was not properly considered for another position for which she applied because she obtained the developmental opportunity as a result of the settlement. The Employer denies the Grievor experienced discrimination in any form. [2] The Union notes there is seldom direct evidence of discrimination on the basis of union activity, rather such discrimination generally must be inferred from circumstantial evidence. The Union argues the Grievor was treated differently in several respects, discussed in greater detail below. The Union argues the Employer has failed to provide a rational business explanation for these distinctions and accordingly it can be inferred they are a product of the Grievor’s reliance upon the terms of the settlement of her previous grievance, and hence constitute discrimination on the basis of union activity. [3] The Union’s argument rests on several premises: that the Grievor was treated differently from others; that the Employer has not provided an explanation for this differential treatment; and that accordingly I should infer the basis for the differential treatment was union activity, i.e. her reliance upon the terms of the settlement of her previous grievance. In order for the Union’s argument to succeed, all of these premises must be satisfied with respect to at least one of the areas in which differential treatment is asserted. [4] The Grievor commenced her position at 786 Lawrence on July 9, 2018. When she arrived, the Grievor was told her manager would be Louise Greco. Caseworkers at the ODSP office at 786 Lawrence are assigned numbers and divided into three teams. The Grievor was assigned number 209 which had belonged to a caseworker who was on Team Two and reported to the manager of Team Two. The Grievor testified she was seated in an area with members of Team One, and in fact directly in front of the office of the manager of Team One. Ms. Greco, to whom the Grievor reported, managed Team Three. She was directed to attend - 3 - team meetings and invited to team rapport exercises like holiday gatherings of Team 3, which was neither the team she worked with nor sat with. As a result the Grievor felt centred out and the object of curiosity. [5] Ms. Greco was aware the Grievor received her position as a result of a settlement, but was unaware of any of the other terms of the settlement. Ms. Greco’s evidence was that the Grievor’s initial assignment to 786 Lawrence resulted in the caseworker staffing being over the normal complement of 51. The work done by all caseworkers is essentially the same. The caseworker numbers relate to postal codes, which is the manner in which the work is divided. Initially the Grievor was assigned to work on Ms. Greco’s team as a double fill. When a vacancy occurred in a position on Team 2, she was assigned the case load of the person who had left. While the position of caseworker 209 remained under the manager of Team 2 on the organization chart, this was in error. The Grievor continued to report to Ms. Greco and this should have been reflected in the organizational chart. When the office was first set up, members of a given team were seated together but over time with turnovers, this was less true with the result that members of a given team did not necessarily sit together. None of the Grievor’s reporting, working or seating arrangements were unusual, although in cross-examination Ms. Greco agreed that all three together was not a circumstance that happened a lot. [6] The Union notes Ms. Greco’s evidence was that the Grievor’s assignment, seating and reporting relationships reflected the fact that the Grievor’s arrival at 786 Lawrence resulted in the office being over-complement. As there was no specific vacancy to which she could be assigned, she had to be fitted in where they could. The Union argues, however, that the situation continued past the time when the office was no longer over-complement. [7] The Grievor believed the reason the situation was maintained was because Ms. Greco wanted to control her time in the office. The ad hoc manner of the arrangements suggested to the Grievor that there was never any intention to absorb her into the unit. Rather, her placement was a temporary blip which the Employer had to work around. [8] I am not satisfied the Union has established the Grievor’s reporting, working or seating arrangements were to any meaningful degree different from that of other caseworkers. To the degree that there was any difference, I am satisfied the Employer has provided an explanation for the differential treatment. There is no evidence to suggest the explanation offered was not the real reason for the Grievor’s treatment. The fact that the Grievor believed there to be some ulterior - 4 - motive does not make it so. Accordingly, I am not prepared to infer that the Grievor experienced discrimination on the basis of union activity in relation to her reporting, working or seating arrangements. [9] Caseworkers are generally permitted to elect to work a Compressed Work Week (“CWW”) schedule. The Grievor was not offered the option of a CWW schedule upon her arrival at 786 Lawrence. She was told the reason for this was that she was in training and a CWW schedule was not available to employees in training. The Union notes the training program largely consists of self study and that while a mentor is assigned a back up mentor is also available so that one or the other would have been available even if the Grievor had been assigned a CWW. The Union argues given this, there was no reason for the Grievor to be denied the CWW option during her training period. [10] In cross-examination, Ms. Greco agreed that the training was largely self directed and that a CWW would not necessarily interfere with its completion. She stated, however, that it was the practice in the office not to permit a caseworker the option of a CWW until training was completed. Ms. Greco noted that it would have been unusual for her to have granted the Grievor this option during her training. [11] While it appears to me that the denial of the CWW option during the training period is a reasonable exercise of management rights, I need not decide this issue. The uncontested evidence was that the same restriction applied to other employees during training. Accordingly, I am not prepared to infer that the Grievor experienced discrimination on the basis of being denied the option of a CWW during her training period. [12] Caseworkers are also given half a day a week of “protected time” for the performance of administrative tasks. During this protected time, they are to be free of disruptions from clients. The Grievor’s evidence was that Ms. Greco initially told her that protected time was only provided to caseworkers with poor time management skills. [13] Ms. Greco denied having made such a statement to the Grievor. She testified all caseworkers were entitled to protected time once they had completed their training. In cross examination she reiterated that she would never have made the statement attributed to her by the Grievor. - 5 - [14] I find it useful to address the conflict in evidence of the Grievor and Ms. Greco with respect to the protected time issue after reviewing the evidence with respect to some of the other allegations. [15] The Grievor filed a Workplace Discrimination and Harassment Policy (“WDHP”) complaint against Ms. Greco, and a grievance arising from the same allegations. The grievance allegations related to the WDHP complaint itself were dismissed by me in an earlier decision on the basis there was no prima facie case: Ontario Public Service Employees Union (Solomon Smith et al) v Ontario (Children, Community and Social Services), 2019 CanLII 126475 (ON GSB). The outstanding issue is that Ms. Greco continued to be the Grievor’s manager after the Grievor raised concerns about her under the WDHP, even after the Grievor requested she be assigned to a new manager. The Union alleges there is no valid reason for this, given the availability of other managers. It argues given this I should infer the decision to retain Ms. Greco as the Grievor’s manager is another instance of discrimination on the basis of union activity. [16] On September 21, 2018, Ms. Greco and a note taker met with the Grievor and a union representative to discuss allegations of discrimination and harassment made by the Grievor against Ms. Greco. The notes of the meeting were filed as an exhibit. I am mindful that the notes constitute hearsay evidence, but exercise my discretion to give them some weight as they speak to the degree to which the Grievor and Ms. Greco have been consistent in their respective positions. [17] Notes of the meeting suggest much of the discussion was taken up with the Grievor’s allegation that Ms. Greco had discriminated against her by asking her for the name of a religious holiday which the Grievor wished to take. That allegation was also the subject matter of a grievance. It was dismissed by me in the earlier decision cited above on the basis there was no prima facie case. [18] During the meeting, the Grievor also raised issues with respect to protected time. According to the notes, the Grievor indicated that Ms. Greco had told her protected time was only available to those with time management issues. The notes continue that the Grievor became “quite animated” and that Ms. Greco offered the Grievor and her union representative the opportunity to caucus, which they took. Upon the return of the Grievor and her union representative, the union representative “specifies that the issues on the protected time were based on what was [the Grievor’s] understanding and what she heard from others, that the time was not for everyone but for those who need it, that initially she did not press for it as she was learning and that she felt that she would get to the point of being good - 6 - enough not to need it. [The Grievor] understood that [it] was for those who could not manage their time.” This is at odds with the Grievor’s evidence before me. I note, by contrast that the position taken by Ms. Greco during the meeting, as reflected in the notes, is the same as the one she has before me: that protected time was available to all caseworkers once they had completed training. [19] In October, 2018 the Grievor filed a WDHP complaint against Ms. Greco. The Grievor testified her complaint was found to be within scope and the Employer retained an external party to investigate. The Grievor also testified the investigation concluded there had been no breach of the WDHP. While the WDHP complaint was still active, on October 25, 2018, the Grievor responded to an email from Ms. Greco (which was not itself placed in evidence). The Grievor copied a number of other managers, including Patti Redmond, Director of the Social Assistance Delivery Branch of the Ministry of Children, Community and Social Services. In her email, the Grievor stated: … until further notice and additional direction from the Union President as well as the Human Rights Commission, I am unable to respond to [you] at this time. If there are work related matters you need to discuss with me, please have one of the other managers provide this for now. Please be advised that I have directed my union to launch a grievance against you today for continuous harassment and discrimination. You have not provided me a safe work environment. [20] Ms. Greco responded later the same day as follows: Thank you for your email. I notice that you have copied your email to Jody Warner, WDHP Advisor. Please connect directly with her; her phone number is …. I have also attached the EAP brochure for you to connect directly with them. When a grievance is filed, it will follow the grievance process. With regard to work related matters, you continue to report to me and as such I will continue to provide direction. Further to my email of Oct 24 (see attached), separately I am sending you an invite to an allegation meeting. In the invitation to the allegation meeting, you will be advised that you may wish to have a union representative accompany you to this meeting. If you have additional questions, please let me know. - 7 - [21] The Grievor testified that she had written her email because she found the anxiety caused by reporting to Ms. Greco unbearable and that she hoped one of the other managers would intervene. She was shocked that Ms. Greco responded instead, and shocked that Ms. Greco “thought I was the one who had to consult with WDHP” and had provided the EAP brochure. [22] Ms. Greco testified that after she received the Grievor’s email, she consulted with her own manager and the Employer’s human resources department. Upon their advice, it was determined that the Grievor would continue to report to Ms. Greco. The concern was that staff not get to dictate the manager to whom they report. Ms. Greco’s evidence was not contradicted. [23] In my view, in the circumstances, a decision by the Employer to maintain Ms. Greco as the Grievor’s manager would have been a reasonable exercise of management rights. There is no evidence to suggest the decision was made for any other reason. The Grievor’s evidence amounts to nothing more than speculation. Accordingly, I am not prepared to infer that the Grievor experienced discrimination on this basis. [24] The Grievor described her relationship with Ms. Greco as awkward, strained, not welcoming and unfriendly. The Grievor stated the problems started from her first day at 786 Lawrence. It was put to Ms. Greco in cross-examination, given the Grievor’s evidence, that her relationship with the Grievor was not “very smooth”. Ms. Greco responded that all she could comment on was the fact that the relationship was professional. Ms. Greco was pressed on whether the relationship was smooth and directed to the WDHP complaint and grievances which the Grievor had filed against her. Ms. Greco conceded that her relationship with the Grievor was not smooth, but again stated that she had maintained a professional relationship with the Grievor throughout. The Union asserts this shows Ms. Greco was evasive in her evidence. I disagree. Ms. Greco consistently focused on her professional relationship with the Grievor. [25] The Grievor also testified that Ms. Greco knew the end date of her developmental opportunity and kept “throwing it out at her”. The Union relies on this as evidence of discriminatory intent in their relationship. Again, other than the fact that Ms. Greco knew the end date, no evidence was offered in support of this allegation. Ms. Greco was cross examined on this issue. She testified that she was the staffing lead for 786 Lawrence and as such it was part of her responsibilities to know when contracts were coming up for renewal. She denied “throwing” the Grievor’s end date at her, but stated she had to have a couple of structured - 8 - conversations with the Grievor in which she would have made the Grievor aware of the date on which her contract would come to an end. Once again, I find this evidence an entirely plausible explanation for why Ms. Greco would have made reference to the end date of the Grievor’s contract in conversations with her. [26] I return to the conflict between the Grievor’s evidence and that of Ms. Greco with respect to the issue of protected time. The Union argues that the Grievor’s evidence should be preferred, relying on Faryna v. Chorny, [1951] BCJ No. 152: 10 If a trial Judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility, and cf. Raymond v. Bosanquet (1919), 50 D.L.R. 560 at p. 566, 59 S.C.R. 452 at p. 460, 17 O.W.N. 295. A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. 11 The credibility of [an] interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. [27] The Union also makes reference to other factors often considered in assessing credibility: demeanour, firmness of recollections, clarity and consistency and overall plausibility of their testimony when subjected to cross, the ability to resist the tug of self interest and what seems most probable in all of the circumstances. [28] Applying the test in Faryna, I prefer the evidence of Ms. Greco. There is no evidence to contradict her evidence that all caseworkers who had completed - 9 - training were entitled to protected time. Given this, it is difficult to understand why she would have made the statement attributed to her by the Grievor. Her evidence that she did not and would not have made such a statement is “more in harmony with the preponderance of probabilities”. I also found Ms. Greco to be clear and consistent in her evidence before me. Her evidence was also consistent with the statements attributed to her in the notes of the September 21, 2018 meeting. She conceded her relationship with the Grievor was not smooth. It is hardly surprising that it was not. Her evidence seems the most probable in the circumstances. I am unable to say the same for the Grievor. While I do not doubt the sincerity of her recollections or perceptions of what occurred, there is no independent evidence which supports them. It is, in my view, improbable that Ms. Greco would have acted based on the improper motives attributed to her by the Grievor. I conclude the Grievor is an unreliable witness. [29] The remaining allegation relates to the Grievor’s application for a full time position as a caseworker during the course of her developmental opportunity. The Grievor testified that she prepared diligently for the interview. She believes that she was well qualified and performed well in the interview. She was not successful. She approached Ms. Redmond for feedback. The Grievor alleges Ms. Redmond told her that she was “never going to be considered” as she had received her developmental opportunity through a settlement. [30] Ms. Redmond testified before me. She oversees 47 ODSP offices across province, with approximately 1,600 employees. She is also responsible for oversight of transfer payment arrangements between Ontario Works and First Nations, which involves about another 100 employees. She was aware the Grievor obtained her developmental opportunity as a result of a settlement. She met with the Grievor in January, 2019 to discuss the concerns raised by the Grievor in her WDHP complaint. This included concerns the Grievor had about feedback she was receiving in relation to job competitions she had entered. She was asked whether the Grievor’s allegation that during the meeting she told the Grievor that she would not be considered for further positions because she had received her current position through a settlement “rang any bells”. She responded that it did not ring any bells and that she would never have said that. In cross-examination she stated the fact that the Grievor’s developmental opportunity would have come up because of the nature of the concerns raised by the Grievor, but Ms. Redmond reiterated that she did not and would not have made the statement attributed to her by the Grievor. - 10 - [31] I prefer the evidence of Ms. Redmond to that of the Grievor. It is difficult to understand why a person in Ms. Redmond’s position would make the statement attributed to her. Her evidence is more in harmony with the preponderance of probabilities. I also find her evidence to be clear and consistent and delivered in a forthright manner. By contrast, I have already found the Grievor to be an unreliable witness. [32] For all of the foregoing reasons, the grievance is dismissed. Dated at Toronto, Ontario, this 12th day of April, 2021. “Ian Anderson” _______________________ Ian Anderson, Arbitrator