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HomeMy WebLinkAbout1984-0811.Colquhoun.85-05-13811184 INTHEIMTEROFAGRIEVANCE Before) THEGIccEvm-BOARD . bier THEmwNmYEEs CLU3XMIMRMINlNGAcT BETWEEN: OPSEU (Gerald Colquhom) -and- Griever The Cm in Right of Ckktario (Ministry of Revenue) Dqdoyer Before: RJ.Rherts Vice Chaimnn S. J. Lhkley &nber W. D. Shuttleworth l-kllber Appearing h-f the Grievor: Melvin I. Ram Bsniister & Solicitor Hearings : C. W. Sholtack Manager, Policy kveloprent Ministry of l7evemie January 25tl-1, 1985 l parch 24th, 1985 -- 2. DECISION In the present.case, a letter of warning was placed in the grievor's personnel file regarding an "objectionable and 'humiliating" comment that he~allegedly made to a female co-worker. The grievor grieved that he had been unjustly disciplined. For " reasons which follow, the grievance is allowed and it is ordered that the warning letter be removed. The facts of this case may be briefly and generally stated. For a considerable period of time, the grievor has worked in the Assessment Department of the Ministry in Windsor, Ontario. His current classification is Property Assessor 3. At the time of the events leading to thegrievance, the grievor worked in the section responsible for the evaluation of residential properties. His Manager was Mr.. R. Young., The evidence indicated that the office in which the griever's desk was located was laid out in an open-office concept. There were no walls separating one Assessor's desk from another. The only separation that existed was provided by a relatively low book case at the front of each Assessor's desk. Because the distance from the floor to the top of the book case was no more than 5 feet, it was easy for employees to stand and speak to the person in front of them. Moreover, because there was rfothing to obstruct the view to the side of each Assessor, it was possible for a certain amount of "visiting" to occur among co-workers while seated. Perhaps camaraderie among co-workers, with the usual banter and give-and- take.~ At about 8:OO a.m. on August 1, 1984, the grievor and several co-workers were standing in a group in one part of this office and visiting over coffee before beginning the day's work. *( Another Assessor by the name of Mrs. D. Oldnall, walked over to join them. It was at this point, that the grievor passed the comment for which he was disciplined. For purposes of this arbitration, it is not necessary to go into the details of what allegedly was said. At the hearing, Mrs. Oldnall was called by the Ministry to give testimony as to the nature of, and her reaction to this _= comment. Rather than substantiate a case against the grievor, however, her testimony tended to indicate that the comment was innocuous, no more objectionable than any of the other give-and-take in the'office, in which Mrs. Oldnall was more than capable of holding her own. She testified that when the comment was made and everyone laughed, she laughed too. She stated that she was not bothered, and did not derive any sexual connotation from it. Thereafter, according to Mrs. Oldnall, she went about her usual duties. Mrs. Oldnall flatly denied making any formal complaint to Hr. Young regarding this comment. She stated that the matter only came to P!. Young's attention in the course of a general conver- sation that she had with him later in the day: She stated that it was 4. common for her and Mr. Young to talk together about things in general, such as her children, the courses that she was taking, and other such subjects. She said that it was only in the context of this kind of a discussion that the grievor's comment came up. No particular point was made of it. a., Mrs. Oldnall further testified that when Mr. Young suggested that he have a talk with the grievor, she said no, she did not want anything said. The comment did not upset her. She added that she did not feel any need for the grievor to be called into Mr..Young's office. Mrs. Oldnall then added, "I can't believe this [entire process of discipline, grievance and arbitration] came out of my saying that." Mrs. Oldnall further testified that she and the grievor were and remain friends. ,It was not uncommon for them to go out for lunch together at noon. It likewise was not uncommon for them to visit together and in the context of such visits share.jokes and other friendly banter. The testimony of Mr. Young left little doubt that he derived quite a different impression from his conversation with Mrs. Oldnall on the day in question. It was apparent to the Board that in the course of the conversation Mr. Young generally developed the impression that Mrs. Oldnall was very upset. Infact, Mr. Young indicated that he believed that Mrs. Oldnall was so shaken by the event that she was incapable of doing her regular work. 5. It was because he formed this impression that Mr. Young decided to issue the warning letter that led to the grievance at hand. In so doing, Mr. Young was.behaving strictly in accordance with the policy set forth in the Ontario Manual of Administration regarding personal harassment. This Manual states in pertinent " part, "Managers are responsible, on becoming aware that harassment is occuring, for dealing with it even though no formal complaint is forthcoming. The Human Rights Code provides that a person who has the authority to prevent or discourage harassment may be held responsible for failing to do so." At the same time, however, it is impossible for the Board to conclude from the evidence that, as a matter of fact, the grievor committed an act of personal harassment against Mrs. Oldnall. Given the fact that Mrs. Oldnall was in the position of complainant and was the only witness for the Ministry who was present when the comment was made, her evidence must be preferred. In making this statement, the Board notes that at no point in her testimony did Mrs. Oldnall give any indication that her testimony was affected by pressure from the grievor or her peer group, or indeed, any other interested party. It seems academic that to constitute personal harassment, a single comment which in no way forms part of a pattern of comments directed toward one individual, must 'go beyond the usual level of banter and give-and-take in the work place. This only follows from the requirement which seems to have been generally accepted , 6. in the author ,ities that the comment must be intolerable or dis- comforting to the victim. See Re Canadian Union of Public Employees & Office b Professional Employees' International Union, Local 491 (1982). 4 L.A.C. (3d) 385, at 393 (Swinton); Re Bell and Korczak (19801, 27 L.A.C. (2d) 227. at 229-30 (Shime): and, Re City of Ottawa and CUPE, Local 503, (1984), unpublished award, at 5-6, 11 (Kates). In the present case, we must conclude that there was no departure from the usual level oft banter to be expected in 'the office, and hence there was no cause to/be offended, and further that Mrs. Oldnall took no offense from the comment that the grievor made. Accordingly, the grievance must be allowed, the warning -.- letter must be removed from the grievor's personnel file and.any other files into which it might have been entered. DATED at London, Ontari 1985. o, this 13th day of May, /l S. J. Dunkley, M w. D. Shuttleworth, Member.