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HomeMy WebLinkAbout2006-0495.Richard.21-04-27 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# 2006-0495; 2006-2537; 2008-1124; 2008-3306; 2010-0697; 2010-0698; 2010-0699; 2010-0700; 2014- 3481; 2014-3482; 2015-1628; 2015-1629; 2016-1771; 2016-1814; 2016-1815; 2016-1816; 2016-1817; 2019-0662; 2019-0663; 2019-0664; 2019-0665; 2019-0666; 2019-1055 UNION# 2005-0616-0016; 2006-0616-0002; 2008-0616-0004; 2008-0616-0005; 2010-0616-0010; 2010-0616-0011; 2010-0616-0012; 2010-0616-0013; 2014-0616-0036; 2014-0616-0037; 2015-0616-0035; 2015-0616-0036; 2016-0616- 0024; 2016-0616-0025; 2016-0616-0026; 2016-0616-0027; 2016-0616-0028; 2018-0635-0004; 2018-0635-0005; 2018-0635-0006; 2018-0635-0007; 2018-0635-0003; 2019-0616-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Richard) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Deborah J.D. Leighton Arbitrator FOR THE UNION Jane Letton (Counsel) Ryder Wright Blair & Holmes LLP FOR THE EMPLOYER Felix Lau (Counsel) Treasury Board Secretariat Legal Services Branch HEARING September 30 and October 1, 2020 -2- DECISION [1] This preliminary decision addresses the Ministry’s motion to dismiss the Union’s claim that it acted in bad faith in meeting its obligations under Minutes of Settlement (MOS) dated February 7, 2017. The MOS placed the grievor in a case worker position in the North Bay ODSP office, in the Ministry of Children, Community and Social Services (MCCSS). Specific terms were included regarding the grievor’s return to work and placement in this position allowing the Ministry to decide after a trial period whether the grievor was suitable for the position. The parties agreed that I retained jurisdiction to interpret and enforce the MOS. [2] The Union alleges that the employer acted in bad faith in managing the grievor’s return to work and integration into the ODSP workplace. In addition to the alleged breach of the MOS, there are three new grievances before me alleging discrimination and harassment, wrongful discipline and challenging the grievor’s transfer back to the Ministry of the Solicitor General (SOLGEN). [3] The Union provided particulars of the bad faith allegation and breach of the MOS. The employer moves that the particulars do not support a prima facia case that MCCSS acted in bad faith in integrating the grievor into the ODSP workplace. And, therefore this claim should be dismissed. The particulars can be found at the end of this decision at Appendix 1. [4] Counsel for the employer stated that for the purpose of the motion the Ministry is prepared to accept that the allegations of fact in the particulars are true. Further, the employer acknowledges that if I find that there is no prima facia case of bad faith, the Union is not precluded from relying on evidence of the particulars to argue that the Ministry, nevertheless, failed to meet an alternate standard of conduct. [5] Thus, the issue before me is whether Union’s particulars support a prima facia case that the MCCSS acted in bad faith during the return to work and integration of the grievor into the ODSP position. Counsel for the Union agreed with the employer’s -3- submission on the law that applies to this issue. Therefore, I will be brief in summarizing it. [6] The cases cited to me were as follows: OPSEU (Martin et al) and Ministry of Community and Social Services, GSB No 2013-3579, August 12, 2015 (Anderson); OPSEU (Grievor) and Ministry of Health, GSB No 2016-2440, July 16, 2019 (Anderson); OPSEU (Wong) & Ministry of Government Services, GSB No 2010- 0756, March 5, 2012 (Dissanayake); OPSEU (Belsky) & Treasury Board Secretariat, GSB No 2013-4306, December 3, 2014 (Dissanayake); OPSEU (Bousquet) and Ministry of Natural Resources, GSB No 1990-0541, March 1, 1991 (Gorsky); Hamilton-Wentworth Community Care Access Centre and OPSEU (Local274), 2004 CarswellOnt 2804 (Brent); R.K. MacDonald Nursing Home Corp. and CAW-Canada, Local 2017 (Knox), 2004 CarswellNS 702 (Veniot); Greater Toronto Transit Area and PSAC (Local 0004) 2010 CarswellNat 1694 (Shime); GTTA and PSAC (Local 0004) 2011 ONSC 4987 (ON Div. Ct.). [7] The test to be applied in assessing whether particulars of a grievance fail to make a prima facia case was explained by the Board in OPSEU (Martin et al), supra, as follows: [3] There is little disagreement between the parties to the principles applicable to a motion alleging the particulars of the 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 the 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 the no prima facia case motion. [8] The Board in Martin et al further described the principles that apply here in this passage: [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 a violation” are of some significance. What matters for the purposes of the no prima facia 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. -4- Whether that theory is correct not be determined stage 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. [9] The Union must show objective facts demonstrating bad faith. Subjective belief is insufficient. See OPSEU Wong, supra. [10] In Hamilton Community Care Access Centre, supra, the Union alleged that the employer judged the grievor “unfairly, and based on errors of fact and wrong assumptions.” The arbitrator disagreed with this characterization of the bad faith test in deciding the issue: The employer can only be said to have acted in bad faith if it knew or had reason to believe that it was acting on errors or wrong assumptions. An employer who makes an honest mistake about an employee does not act in bad faith. [11] There is a substantial onus here on the union. The particulars must show that the actions or in actions of the Ministry were deliberate and meant to undermine the grievor. The particulars, taken as true, must support the Union’s theory of the case that the employer did not properly integrate Mr. Richard into the ODSP office and thus “set him up for failure” in order to survive the no prima facie case motion. [12] Counsel for the Union submitted that the particulars support a prima facie case of bad faith by the Ministry in its treatment of the grievor, during this integration into the ODSP workplace. Counsel listed the following allegations in support of the theory: the grievor was given insufficient training: the employer did not counsel the grievor on the complaints it was receiving from his coworkers; the employer continued to put him through the return-to-work process, in spite of his complaints about stress; the employer did not account for his mental health; information sent to WSIB was false or misleading and paperwork was not timely. [13] In counsel’s submission these allegations are capable of establishing that management was deliberately deficient and therefor acted in bad faith. Counsel argued that the employer knew the grievor’s vulnerable state, returning to the -5- workplace after 14 years of absence. She argued that the employer failed to take the grievors’ mental health into account when communicating with him. [14] Counsel for the Ministry argued that the Union’s first claim of bad faith relies on allegations that the employer did not train or assign tasks to integrated him into the workplace. The particulars refer to an incident where the grievor requested some assistance in self-employment reviews, since he had been ready to start data entry for some weeks. The employer’s response was for the grievor to seek assistance from a coworker. Counsel for the employer submits that even if this is true, it does not establish bad faith. [15] The Union’s second claim of bad faith is that the employer failed to correct or counsel the grievor of inappropriate behavior in the workplace. Counsel for the Ministry submitted that while the employer did not advise the grievor directly of issues arising out of his interactions with his female colleagues, on the Union’s own particulars, it is clear that the employer cautioned the grievor on a number of concerns. As examples counsel noted that the grievor was asked to be mindful when he asked a coworker for help, and with conversations during breaks and lunch. He was asked to remove a photo of his son with a bare torso. [16] Ultimately the grievor was disciplined for inappropriate behavior with female coworkers. Counsel argued that the grievor ought to have known that flirting, gawking, ill-advised comments and removing his shirt in front of a female summer student was not appropriate behaviour in the workplace. Counsel argued that it cannot be inferred that lack of early counselling amounts to bad faith or some deliberate action to undermine the grievor’s success in integrating into the new position in ODSP. [17] Counsel also argued that the Union relies on the WDHP investigator’ comments and the finding that the ODSP managers did not know the grievor’s history before being assigned to the ODSP office as showing bad faith. The investigator concluded that the lack of information on the grievor’s background/history was probably meant to -6- protect the grievor’s privacy and treat him with respect and dignity. The investigator concluded that it was well intended. [18] The Union also provided particulars with regard to the grievor’s WSIB claim as showing the bad faith. These allegations in employer counsel’s submission relate to events after the grievor was no longer in the workplace and therefore cannot prove bad faith in the integration of the grievor into the ODSP office. [19] Having carefully considered the Union’s particulars, the documents cited in the particulars and the submissions of the parties, I have decided that the employer’s motion must be granted. I agree with the counsel for the Ministry that the particulars provided by the union do not make out a prima facie case of bad faith. [20] The particulars alleging inadequate training for the caseworker position, insufficient counselling regarding the grievor’s behaviour at work, failure to consider his mental health and history during his integration into the workplace do not contain allegations that show deliberate, knowing actions designed to undermine the grievor’s success. The particulars relating to the WSIB claim have nothing to do with the integration of the grievor into the workplace. [21] Essentially management in the ODSP office were exercising ordinary management rights, while trying to adhere to the MOS by providing a trial period for the grievor to try the caseworker position. The trial period was also to allow management to assess whether the grievor was suitable for the position. Ultimately, they found the griever was not suitable. [22] For the Union to show bad faith here, the particulars must support a finding that management acted or omitted to act in ways that deliberately undermined the grievor’s success in the position. Bad faith must be motivated by bad animus. There is simply nothing in the particulars to suggest that management did not want the grievor to succeed and set him up for failure. I am reluctant to comment further on the particulars, given they will be relied on to advance the other claims before me. -7- Consequently, for the reasons above, the employer’s motion to dismiss the Union’s claim of bad faith is granted. Dated at Toronto, Ontario this 27th day of April, 2021. “Deborah J.D. Leighton” ______________________ Deborah J.D. Leighton, Arbitrator -8- APPENDIX 1 UNION PARTICULARS 1. MOS executed February 7, 2017 with terms that he will go to ODSP starting Feb 21, 2017 and should the graduated RTW exceed 6 weeks, the Employer was entitled to challenge the length of the RTW. 2. On February 24, 2017 during a morning break in the lunchroom a co-worker made a comment to another co-worker, who was the spouse of a correctional officer that Mr. Richard worked with and who was one of the offenders who harassed him 1. This comment was “well we better go we got to watch what we say” and made a reference to a rat. Mr. Richard inferred that this was a reference to him and reported it to his manager and that he went outside to help with his anxiety. 3. Mr. Richard was off work sick on February 27 and 28 due to anxiety and then met with management the following day. During this meeting Mr. Richard disclosed the comments again and advised that he was scared that if management does something that he will re-live his past bullying. He expressed concern that he was bullied in the last 4-5 workplaces2. 4. On March 2, 2017 Mr. Richard met with management again and he was told that the situation of February 24th was dealt with and he advised he was satisfied with the outcome and that he felt ready to get started with his learning path3. He was advised that there was another co-worker available to him if needed. Mr. Richard thanked management for being proactive and that he was comfortable moving forward. 5. On March 17, 2017 another meeting with management was held to discuss the medical information advising that the progressive return to work plan will need to be extended another 5 weeks.4 6. On May 15, 2017 it was determined that he would continue with gradual return to work and his plan was updated on May 19, 2017.5 1 Page 10 of Joint Book of Documents 2 Page 10 of Joint Book of Documents 3 Page 10 of Joint Book of Documents 4 Page 10 of Joint Book of Documents 5 Page 10 of Joint Book of Documents -9- 7. On May 25, 2017 Mr. Richard was ill from work. 8. On May 29, 2019 Mr. Richard spoke to management upon his return to work and that his anxiety was high due to an encounter with a former inmate and his disagreement about his current rate of pay.6 9. June 5, 2017 Mr. Richard advises management that “he likes the workplace and feels luck to be part of the team”. He inquired about assistance in entering some self employment reviews since he’s been ready for quite a few weeks for data entry. Management advised him to connect with a co-worker directly for assistance and asked him to send him some highlights of work accomplished at the end of each week.7 10. June 7, 2017 Mr. Richard spoke with management about the effects that the mental health training had on him and that it brought back a lot of memories, he said he was okay to attend the 2nd day of training.8 11. That same day he was advised that he was parked in a visitor’s spot and that he would need to move his car. 12. On June 8, 2017 management again raised issues with Mr. Richard’s parking. Mr. Richard asserts that other staff also improperly parked and they were not spoken too.9 13. On June 9, 2017 Mr. Richard spoke to management about an ODSP manager posting and they discussed the best way to apply.10 14. June 13, 2017 Mr. Richard met with management in the morning to advise that he had a doctor’s appointment at 9:55 am and that he came in early to make up the time.11 There was a discussion about using vacation credits for medical appointments and Mr. Richard disagreed advising that he had never had to use vacation credits for appointments before. Mr. Richard asked about his vacation request and he was told that management needed to consult with HR because he 6 Page 11 of Joint Book of Documents 7 Page 11 of Joint Book of Documents 8 Page 11 of Joint Book of Documents 9 Page 11 of Joint Book of Documents 10 Page 12 of Joint Book of Documents 11 Page 12 of Joint Book of Documents -10- was an accommodated employee. The vacation request was to work one week, take one week off (July 10-Sept 8). Following the meeting Mr. Richard emailed and advised he was leaving to see Dr. King as he was having a hard time focusing and he would be away sick for the rest of the day. 15. June 14, 2017, Mr. Richard calls in sick and he’s also advised that his vacation requests are approved.12 A Doctor’s note is provided advising that he was away from work due to “an emotional reaction ignited by stress”. 16. On June 26, 2017 Mr. Richard was having a conversation with a co-worker during his lunch hour, the co-worker was still on work time. A third employee walked by and said to him “why don’t you move your desk while you’re at it” and he became quite anxious and had to go outside to cool down. He then went to management and was quite upset and advised what had happened and that he was just talking to the co-worker about work. He left the office again to cool off and then left shortly after that for the day.13 17. Management spoke to the employee who advised that Mr. Richard had made her uncomfortable quite a few times and that she was considering filing a harassment complaint. 18. June 27 & 28, 2017 Mr. Richard called in sick.14 19. On June 29, 2017 Mr. Richard returned to work and met with management. He was told that he should be mindful of his surroundings when asking a colleague for help and that side conversations should occur during breaks and lunches. Later that day Mr. Richard disclosed that he was very anxious.15 20. Mr. Richard left at 8:30 am on August 30, 2017 sick.16 21. August 31, 2017 Mr. Richard called in sick, he left a message at the front desk.17 12 Page 13 of Joint Book of Documents 13 Page 13 of Joint Book of Documents 14 Page 13 of Joint Book of Documents 15 Page 13 of Joint Book of Documents 16 Page 15 of Joint Book of Documents 17 Page 15 of Joint Book of Documents -11- 22. September 1, 2017 Mr. Richard was advised that he needs to advise a manager by way of a phone call/voicemail/email if he is going to be sick.18 23. On September 6, 2017 he is asked to remove a picture of his son with a bare torso (It was perceived to be a picture of him).19 24. September 11, 2017 Mr. Richard meets with management to sign his most recent RTW documents.20 25. September 12, 2017 Mr. Richard is sick; 26. On September 25, 2017 Mr. Richard meets with Nancy Sauve (Social Assistance Program Manager) where he’s told that October 16, 2017 would be the start of this 6- month trial period per the MOS. He is advised that his capacity and performance in the role would be assessed and that he would be assigned the full functions of the position with necessary training. Because he was not working regular hours, his workload would be scaled back. Mr. Richard recalls that Ms. Sauve indicated that his performance at work was fine.21 27. October 12, 2017 a WDHP complaint is submitted and Mr. Richard is a respondent.22 28. October 16, 2017 the 6-month work trial begins. 29. October 20, 2017 the Grievor is suspended with pay pending the investigation and the 6-month work trial is put on hold.23 30. On December 21, 2017 the Employer files a Continuity Report to the WSIB where the Employer incorrectly advises the WSIB that from February 22, 2017 until October 17, 2017 Mr. Richard did not “report or discuss any ongoing problems with anyone at work about his condition?” As detailed above, Mr. Richard throughout the time he was at ODSP reported that he was having ongoing problems.24 18 Page 15 of Joint Book of Documents 19 Page 15 of Joint Book of Documents 20 Page 15 of Joint Book of Documents 21 Pages 16-17 of Joint Book of Documents 22 Page 18 of Joint Book of Documents 23 Pages 18-19 of Joint Book of Documents 24 Page 25 of Joint Book of Documents -12- 31. On this same report the Employer advised that it was unknown whether Mr. Richard sought medical treatment, even though he had provided ongoing reports from Dr. King and made numerous references to seeking medical care. 32. Finally, the Employer also incorrectly reported that Mr. Richard did not miss any time from work due to his condition. 33. February 20, 2018 Grievance 2018-0635-0003 is filed alleging that the Employer failed to protect his private medical and confidential information and failed to protect him during an investigation where a breach of information has caused malicious information to be spread about me, causing harm and medical distress to myself and my family. 34. February 23, 2018 Mr. Richard files a WDHP against 2 colleagues. 35. April 19, 2018 Mr. Richard is interviewed about his complaint. 36. May 25, 2018 Mr. Richard goes on sick leave. 37. May 28, 2018 Mr. Richard files grievance No. 2018-0635-0004 alleging a failure to provide safe work environment and failure to accommodate. 38. June 1, 2018 the Final WDHP report is issued regarding allegations against Mr. Richard and allegations 2, 3, 4, 7 & 8 are substantiated; allegations 1,5, 6 & 9 are not.25 39. June 28, 2018 the report is issued for Mr. Richard’s WDHP complaints and they are not substantiated.26 40. July 24, 2018 Mr. Richard is sent an invite to attend the close out meeting for his complaint and OPSEU advises he is still unwell. The complaint is determined to be unsubstantiated. 41. July 25, 2018 OPSEU is advised that his complaint is closed and the complaint against him is still outstanding. 25 Page 77 of Joint Book of Documents 26 Pages 87-92 of Joint Book of Documents -13- 42. August 9, 2018 Mr. Richard provides updated medical advising he is unable to work at any job on either a part time or full-time basis.27 43. September 4, 2018 OPSEU provides updated medical information to Management. 44. September 5, 2018 the WDHP findings are accepted. 45. September 25, 2018 Mr. Richard’s physician sends an email confirming he cannot participate in any closeout hearings.28 46. September 26, 2018 - OPSEU requests that the WDHP investigation be placed in abeyance. 47. October 10, 2018 the Employer sends OPSEU/ Mr. Richard a HIF and OPSEU inquires into STSP; WSIB 48. October 19, 2018 the HIF is returned29 and OPSEU is advised that there is no update on WSIB. 49. On October 25, 2018 the Employer sends a brief of the WDHP results and identifies that the following allegations are substantiated: 1. Giving a co-worker a bottle of wine with a sexually suggestive name as a birthday gift. i. Omitted from this information to the WSIB is that the Investigator did not find this to be a form of sexual harassment or a violation of any workplace policy. 2. Regularly gawking at female co-workers 3. Regularly chatting and flirting with “young, attractive women” in the office; 4. Writing Lync messages in the manner of “you look beautiful today” to female co-workers; 5. Commenting to a female co-worker that her ex-husband was a “slime ball” and had cheated on her multiple times; i. Omitted from this information to the WSIB is that the Investigator did not find this to be a form of sexual harassment or a violation of any workplace policy. 27 Page 94 of Joint Book of Documents 28 Page 98 of Joint Book of Documents 29 Page 99 of Joint Book of Documents -14- 6. Inquiring about a female co-worker’s romantic relationship and making comments about whether it would last or not; i. Omitted from this information to the WSIB is that the Investigator did not find this to be a form of sexual harassment or a violation of any workplace policy. 7. During a meeting staring in an obvious manner at the daughter of one of the managers; 8. Calling a female co-worker “sunshine” multiple times and then taking off his top in front of her leaving him in an undershirt and commenting “if it gets any hotter in here, I’m going to take this shirt (undershirt) off too”; 9. Stretching in front of two female co-workers in an exaggerated manner so that his shirt rode up and his stomach was showing. i. Omitted from this information to the WSIB is that the Investigator did not find this to be a form of sexual harassment or a violation of any workplace policy. 50. November 7, 2018 - Mr. Richard is issued a 20-day suspension.30 51. November 21, 2018 - Mr. Richard is released from MCCSS and returned to SOLGEN.31 52. December 3, 2018 Mr. Richard files grievance 2018-0635-0005 challenging his transfer back to SOLGEN and 2018-0635-0006 challenging the 20-day disciplinary suspension.32 53. December 12, 2018 Mr. Richard submits grievance that certain personal belongings were not returned to him.33 54. June 27, 2019 Mr. Richard submits a grievance alleging that SOLGEN did not in a timely manner send out his LTIP application or advise him that his STSP credits were ending.34 30 Page 101 of Joint Book of Documents 31 Page 103 of Joint Book of Documents 32 Pages 105-106 of Joint Book of Documents 33 Page 107 of Joint Book of Documents 34 Page 108 of Joint Book of Documents