GSB # 1581/95, 1703/98
OPSEU # 95E434, 99B132
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Damani)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
BEFORE Owen V. Gray Vice Chair
FOR THE Peggy Smith GRIEVOR Counsel Eliot Smith Barristers & Solicitors
FOR THE Roslyn Baichoo EMPLOYER Counsel Legal Services Branch Management Board Secretariat
HEARING December 6, 1999 March 24, 2000 May 23, 2000
DECISION
1This decision concerns two grievances me dated June 30, 1995 and August 24, 1997. In them, the grievor complains of having been denied training and promotional opportunities. In her opening statement, union counsel said that in so far as the 1997 grievance refers to competition HL-37-287S-97 this is not a complaint that that competition was conducted improperly but, rather, that the grievor was disadvantaged in that and other job competitions because she had earlier been denied secondments, temporary assignments and other job opportunities that were not the subject of competitions. The grievor says that those denials constituted discrimination on the basis of race and union activity, contrary to Article A of the collective agreement in force prior to March 31, 1996 and Article 3 of the collective agreement in force from and after that date. By way of remedy, she asks that the employer be ordered to appoint her to a full-time position that takes into account her qualifications and abilities, and that it be ordered to pay compensation for a 3 month period in 1995 when she was away from work on sick leave.
The Particulars
2After the hearing had commenced and the grievor had begun testifying, I ordered that the union provide particulars of the facts on which it and the grievor relied to demonstrate the discrimination alleged. The order required that
The union shall provide employer counsel with written particulars of the facts that it and the grievor say demonstrate the discrimination alleged. With respect to each act or omission alleged, the union’s particulars shall indicate what was done or not done, when, where, by what means and by whom. The union shall also provide particulars with respect to the grievor’s 3 month sick leave in 1995 and the connection between it and the alleged discrimination. The union shall also provide employer counsel with copies of all documents on which it and the grievor intend to rely in these proceedings that have not already been produced to the employer in connection with these grievances, including any medical report relied upon in connection with the claim for compensation.
The order also required that the employer provide particulars, and provided that
A party who fails to produce a document or provide particulars of an allegation in accordance with this order may be precluded from introducing that document or testimony about that allegation into evidence.
3By letter dated February 9, 2000, union counsel delivered the following particulars (paragraph numbering is as in the original):
Ms. Damani grieves that she has been discriminated against and denied training opportunities afforded to other employees. She further grieves that she was unjustly denied competition HL37‑287S‑97 and other promotional opportunities and training, which has adversely affected her health and her career. The union alleges that the discrimination is on the basis of race and union activity.
In particular, the union will be relying upon the following facts and documents:
(1) The employer was aware of Ms. Damani’s interest in obtaining a position which used her skills and experience. She competed for many job opportunities, and was encouraged by the employer with respect to her efforts and underlying abilities. (See exhibits 3, 4, 7, 8)
(2) Ms. Damani has been submitting letters of reference to the employer since 1991, in support of her effort to obtain a better position. (Exhibits 12, 13, 14, 18)
(2) Despite her efforts, Ms. Damani did not obtain a position. It is the union’s position that that discrimination played a role in her failure.
(3) During this time, vacancies were filled by the employer by temporary staff. (Exhibit 6) This practice was noted by an investigator into the grievor’s harassment complaints in a letter dated January 19, 1994 (exhibit 11). It was to be reviewed by management and the outcome conveyed to the employee. This never happened.
(4) The employer was also directed to do a detailed performance appraisal, which was to include a training/education plan and set clear expectations of developmental goals and how they might be achieved (exhibit 10). This never happened.
(5) As early as 1993, the employer was aware that the grievor was suffering from mental stress and health related problems as a result of alleged harassment at the workplace. (Exhibit 5 and 11) Despite this knowledge, management did nothing to accommodate the employee.
(6) There were no discussions held as promised to assist the grievor in developing an appropriate plan or the necessary skills to obtain a position in the public sector.
(7) The grievor continued to suffer from stress, and her physician provided the employer with medical documentation outlining her concerns about the high level of stress the grievor was working under. (Exhibits 16 and 17) The employer took no action.
(8) The grievor is a union activist, and has sat on the provincial committee for human rights. While working in a temporary assignment in 1999, the grievor was requested to stop the transfer of OPSEU faxes from her work station. At no time did the grievor ever request or arrange to have OPSEU faxes sent to her. The grievor alleges that she was singled out for ridicule on the basis of her race and union activity.
(9) In November, 1997, the grievor applied for the position of Administrative Secretary (posting HL‑3 7‑25 9D/97). (attached application). The grievor was given an interview, but was unsuccessful. At a subsequent meeting with the employer, she was advised that her problems were “the way you answered questions, the usual things”. The grievor has never been advised or counselled with respect to an identified weakness with respect to the interview process.
(10) The grievor continues to be affected by the ongoing harassment and discrimination she faces at the workplace. Attached is a copy of her current medical assessment.
In addition to the exhibits referred to above, we enclose all additional documents which will be relied upon at the hearing. These additional documents have been divided into two categories: (1) “other job applications”, which will be submitted to support our position that the grievor has actively searched for alternative positions, and (2) “other documents”, which will be relied upon to establish both the employer’s knowledge of the grievor’s concerns and the failure to act upon them. In particular, I address your attention to the document listing the employees identified as sitting in temporary or other arrangements, while such opportunities were consistently denied to the grievor.
Finally, please note that the grievor will testify to the fact that she faced day to day harassment from her co‑workers, and in particular Barbara Margeson.
The order requiring the delivery of particulars was made before the grievor’s cross-examination was complete. When the hearing resumed, the union was allowed to, and did, re-open the grievor’s testimony in chief.
4As regards the testimony that the grievor gave prior my making the order, I have not considered any assertions that are unrelated to any of the allegations set out in the particulars. For example, during that testimony the grievor said that she had been “harassed by people in the office telling me what to do, being superior, watching me, how long I am on lunch, complaining.” She did not say who had done this, nor were the occasions identified. The order for particulars clearly required that an allegation of this kind be particularized by identifying the occasions, describing what was done and naming the people said to have done it. The particulars named only Barbara Margeson. The grievor did not mention Ms. Margeson in her testimony, either before or after the particulars were delivered, so the adequacy of the particulars of the allegation against her did not come into issue. Counsel for the employer exercised admirable restraint in that and other respects during the hearing of these grievances. I do want it to be clear, however, that I did not and do not consider the particulars of the allegation against Ms. Margeson an adequate or appropriate response to my order. When particulars are required, it is not enough to say that someone engaged in harassment — details of the conduct said to constitute harassment must be provided.
The Evidence
5The grievor began with the Ministry of Health in 1976 as an OAG 6. Her position was upgraded to OAG 8 in the course of a reorganization in 1989. Her current home position is Administrative Secretary, Population Health Unit, Public Health Branch.
6In May 1993 the grievor was informed that she was not the successful candidate for a 3 month temporary assignment as a Grants Clerk. In June 1993 the grievor was informed that she was not the successful candidate for an Administrative Secretary position in the Institutional Health division. The grievor testified that “they” brought someone they knew from another department, that she thought she was the qualified candidate, “but I did not have a friend who was a manager.” The grievor did not file a grievance with respect to the conduct or outcome of that competition.
7The grievor testified that she had started going to her doctor in March 1993 because of stress. In October 1993 her doctor wrote as follows to the Director of the grievor’s Branch (Exhibit 5):
Mrs. Damani has been my patient since 1985. She has always enjoyed good mental and‑ physical health.
About two months ago she started to experience stress secondary to harassment at work. She tried to gather herself after her visit in August 1993. However, I understand the situation in her work environment gets worse and she is currently under my care and is taking medication.
She has always been very stable. As her family physician, I request your co‑operation in adjusting her work environment that it would be beneficial for her health and thus increase her performance.
Please contact me if you feel necessary.
This letter was tendered only as evidence of what the employer had been told and not as evidence of the truth of its contents.
8Ms. Damani stated that the harassment referred to in the doctor’s letter was not the two job competitions but her entire work situation, her work environment. Asked by union counsel to say what in particular had been happening in that regard, she testified in a general way that a lot of times positions were not advertised, and GO-Temps would be brought in to fill them. She said she had complained to her Director and to the Deputy Minister about this, and that the President of the Local had corresponded with management about it as well. An e-mail sent by the Local Union President on March 16, 1994 was introduced (Exhibit 6) in this connection. It complained of improper use of temporary workers and failure to follow the requirements of the collective agreement with respect to the posting and filling of vacancies, among other things. It argued that preference should be given or postings should be restricted to classified staff, because training or developmental opportunities had been assigned to GO-Temp or unclassified staff classified staff and classified staff “loose out on competitions” because they aren’t provided with staff development. I am told that some or all of the allegations in that memo later became the subject of a union grievance that had not been resolved by the time these grievances first came on for hearing.
9In response to the doctor’s allegation that the grievor was a victim of harassment, the employer launched an investigation. The investigator, Jessica Hill, reported as follows on January 19, 1994 (Exhibit 11):
I have investigated the letter from Yasmin Damani's family physician alleging harassment in the workplace.
I have not found any evidence to substantiate harassment on any of the grounds in the Human Rights Code.
However, I do recommend that there be attention given to improve management's responsibilities for setting performance standards and carrying out proper performance management processes. I recommend that the Human Resources Branch develop an action plan with management and subsequently convey to the employee changes in the performance management process.
As well a major concern of Yasmin has been the historical patterns in which, the processes for filling vacancies with temporary staff have taken place. I would recommend that the practices be reviewed with the Human Resources Branch and the outcome conveyed to the employee.
Both of these areas should be addressed within the next month.
So far as the grievor is aware, management did not act on the recommendations contained in the last three paragraphs of this report.
10In late 1994 the grievor applied for a Project Coordinator position in the X-Ray Inspection Service of the Ministry. She was not the successful candidate. She testified that “a temporary person” was hired. The Union does not suggest that the temporary person was not the most qualified candidate.
11The grievor continued to be concerned about, and to complain about, the way job opportunities were being allocated by management. In June 1995 she wrote as follows to the Director of her branch:
RE: MEETING OF JUNE 2, 1995
I wish to thank you for meeting with me on June 2, 1995 at your request regarding my situation in the Branch.
After outlining my problem to you, you made some comments and offered some suggestions which I think could be helpful.
There were several opportunities which were given to selected individuals by retraining them and giving them extra duties to perform in order to improve their marketable skills and to make the individual appear attractive in their job specifications. Also, their job titles were changed and duties tailored to reflect differently from their original job requirements.
Another issue that came out for discussion was; in previous years there were temporary assignments which were duration of approx. 2 months which have continued up until 2 years. Previously I mentioned that I was interested in these assignments but was told at that time that they were only for two to three weeks but that turned out not to be the case. You admitted that this was a mistake, but after all I was bypassed and lost out on both gained experience and salary. This is only one example of numerous assignments that was treated in the same unfair manner.
During the last 4 years I have noticed this happening, time and time again and have allowed it to bypass me as I felt that by merit alone I would be given the opportunity to be recognized for my hard work, patience and perseverance. Since I have been bypassed in many occasions I now feel I should voice my dissatisfaction that I have been unjustly treated. By talking with you I hoped that some reasonable redress would come about whereby I could benefit.
I accepted your invitation to discuss these issues because I felt that you could be given the opportunity to justify and even explain why I am so badly treated. But even this seems too much to be expected from you.
I also raised the question as to why I never got a response from Wendy Hansson regarding the position of Administrative Assistant. You had mentioned that you would look into this matter for me and respond. To date ‑nothing. You also informed me of two upcoming positions. I shall be preparing myself for them.
Human Resources expectations was another area discussed but they seem to be inaccessible whenever I try to reach them by phone or E‑mail. I seem never to get a favourable response. You suggested that you were there to assist me in developing my marketable skills in computer, interviewing skills and further training.
I would like to let you know that although you made some suggestions which I will be following up on, I am still not satisfied that anything was achieved at all.
Less than a week of our meeting other circumstances have changed which needs to be addressed in a definitive manner.
This particular situation is distressing to me as it smacks quite clearly of favouritism within the branch and this perception needs to be cleared up to my satisfaction. Two to three years ago when I applied for jobs within the Division, they were offered to other employees from other branches who were much lower in classification than mine but the only excuse I was given was that they won the competition.
Most temporary staff are hired without all the necessary skills but are trained and equipped to fill the higher positions.
I keep wondering what has become of the notion of internal training and promotion based on merit instead of continually hiring temporary staff to fill the higher positions which permanent staff can fill with minimal training and backfill with temporary staff in the lower positions.
I look forward to a prompt reply.
I have reproduced this memo in full because it is illustrative of the specificity with which, for the most part, she explained her complaints during her testimony before me.
12On June 30, 1995, the grievor filed the first of the two grievances now before me. At the second stage of the grievance process, the Deputy Minister’s designate answered the grievance as follows (Exhibit 10):
This is to confirm the Stage 2 meeting which was convened at your request on Thursday, September 28, 1995 in accordance with Article 27.3.3 of the Collective Agreement.
As the Deputy Minister's designate, I have reviewed the circumstances surrounding the grievance which alleged that you "have been discriminated against contrary but not exclusive to Article "A” of the Collective Agreement .... and have been denied training opportunities afforded to other employees."
I have noted your concerns and offer the following comments:
I recognize that workload often inhibits the ability to practice the computer skills which you have acquired and can only suggest that you arrange to go to the Help Centre as often as necessary to build confidence in your skill base. They can not only provide you with one‑on‑one assistance but can also lend you books and videos that will enhance the training you have already received.
As well, I would like to encourage you to continue to pursue formal developmental opportunities as they become available and recommend that you develop, together with your manager, a plan of action that will assist you in achieving your goals. This might include the setting aside of specific times for visits to the Help Centre and should be followed through.
Further confidence might also be obtained through meeting with someone in the Human Resources Branch who could assist you in strengthening your interview skills.
After careful consideration of all the issues raised, I would further direct Management to do a detailed Performance Appraisal which will include a Training/Education Plan and set clear expectations on the type of work assignments (developmental) that you are interested in and that Management should assist you in achieving them.
I believe that the course of action I have outlined above will help resolve your concerns. Therefore, at this time, I will deny your grievance.
The grievance was not settled. Management did not thereafter perform a performance appraisal or do any of the other things suggested in the penultimate paragraph of this answer. The grievor testified that the employer’s failure to conduct performance appraisals created a “poisoned environment” for her because there was no way to prove to the employer that she knew her job and if she was making mistakes or needed improvement she could not find that out.
13The grievor testified that some time after the doctor’s letter of October 1993 her doctor told her to stay home, and that she decided to take three months off after the Hill report was put together. At a later point in her testimony, she tendered two further notes from her doctor (Exhibits 16 and 17). One, a handwritten note dated October 6, 1995, says
Off work from Oct. 2/95 for 1 week. To return to work on Oct. 10/95. Ms. Damani remains under treatment.
The next, a typewritten note dated February 8, 1996, says:
I am the family physician of Mrs. Damani for eleven years.
She has undergone tremendous stress from 1993 with multiple somatic symptoms. During the summer of 1995 she was under a lot of stress, that I advised her to take total rest which she evetually [sic] listened and took off from July 28, 1995 to October 6, 1995 and also saw a psychiatrist.
It is not apparent what prompted the preparation of the typewritten note. There is no evidence that the employer was asked to do anything in response to either of these notes. It is not apparent that the circumstances called for any response by the employer beyond its treating the absences referred to as absences due to illness.
14Competition HL-37-287S-97 was for the position of secretary to Dr. Monica Naus. The grievor applied and was interviewed for the position, but was not the successful candidate. She spoke afterwards to Dr. Naus, who told her that she was not selected because of the way she answered questions and because someone more qualified had applied. As I have noted, the union does not say that the successful candidate was not the most qualified.
15The grievor’s assertion that she is a union activist is not disputed. The employer acknowledges that while the grievor was working in a temporary assignment in 1999, OPSEU faxes periodically arrived at a fax machine near the work station at which she performed that assignment. Faxes from OPSEU without any named addressee continued to arrive at that fax machine after the grievor’s assignment ended and she no longer worked in the area. By e-mail, the manager wrote to the grievor
It would be appreciated if you could arrange to have OPSEU faxes transferred to your fax machine and personal items removed [sic] the work station.
The grievor responded by e-mail as follows:
Good morning Geoff:
Geoff in the first place I had never arranged to have OPSEU faxes transferred to your fax machine when I started working in your area Feb. 1/99.
Infact, when I started there, I was seeking [sic] faxes sitting in the slot where the fax machine is.
I would appreciate in future not to be blamed for something that I have arranged to have OPSEU faxes arrive at that particular fax machine.
I will certainly clear all my personal items from the workstation.
Thank you and have a nice day,
One of the examples that the grievor gave during her examination-in-chief of harassment she had suffered was that she had been “harassed by the employer saying faxes were coming for me” on this occasion. The e-mail from Geoff appears to have been the only communication from management to the grievor on the subject of these faxes.
16The grievor’s particulars refer to a “document listing the employees identified as sitting in temporary or other arrangements, while such opportunities were consistently denied to the grievor.” In its particulars, the employer provided details of the employment of most of those named in the document. Neither document constitutes evidence of the allegations in it. In the hearing, the union offered no evidence with respect to the employment of the individuals on the list. If the grievor’s testimony touched on any of these individuals, it did so without mentioning the employee’s name or details of the assignment sufficient to connect it with the particulars.
Decision
17I accept as a general matter that racism “is out there,” as the grievor put it at one point. I agree with union counsel’s submission that racism is often latent, in the sense that those whose conduct is influenced by racist attitudes may not openly acknowledge it. It is not necessary for the union to prove that discrimination on the basis of race was the sole or even a major reason for employer conduct detrimental to the grievor. If discrimination on the basis of race played any part in the employer’s treatment of the grievor, then it breached the collective agreement provision that prohibited such discrimination. The presence and effect of racist attitudes may be difficult to detect and prove. It does not follow, and the union does not suggest, that proof is therefore unnecessary, or that the mere allegation of racial discrimination shifts the burden of disproving the allegation to those accused of it. The same may be said about anti-union animus and discrimination on the basis of union activity.
18The grievor says she cannot understand why she has not advanced in the civil service unless it is because she is the victim of discrimination on the basis of her race or union activity or both. Her subjective belief that she is the victim of discrimination, however strong, is not proof that she is. This would be so even in the absence of evidence that she is inclined to exaggeration in labelling her experiences. In that regard, I should say that in my view the manager’s e-mail quoted in paragraph [15] above did not constitute “harassment” in any objective sense of that word. Likewise, the employer’s failure to conduct performance reviews, whatever else may be said about it, cannot be said to have created a “poisoned work environment” as that phrase is ordinarily used and understood.
19A good deal of union counsel’s argument focused on two admitted facts: that management did not do as Ms. Hill recommended in her 1994 report and did not conduct a performance review as “directed” by the Minister’s designate in his stage 2 answer to the grievor’s 1995 grievance. The union does not argue that the grievor had a legal right to what the Hill report recommended, either before or as a result of her recommendation. Nor does the union suggest that grievor had a legal right to a performance review, either before or as a result of the second stage answer to the 1995 grievance. The argument is that management’s unexplained failure to do as had been recommended or directed justified an inference that racism and/or antipathy to the grievor’s union activity in advancing her complaints must have played a role in the employer’s treatment of the grievor in these and other respects.
20The failure of management to either do as Ms. Hill recommended or explain why it would not or did not do so is perplexing. So is management’s failure to either do as the Minister’s delegate directed or explain why it would not or did not. In all the circumstances, however, these things are not a sufficient basis for the inference the union asks me to draw. Certainly there is no other basis for such an inference.
21There is no suggestion, and no evidence, that the grievor was the only classified employee allegedly disadvantaged by the management practices about which she and the union were complaining in 1995 and afterwards. There is no evidence concerning the actual or apparent racial origins of other allegedly disadvantaged employees, or of those members of management responsible for the practices, or of those employees alleged to have benefited from them. In so far as the employer had work opportunities to assign that were not subject to posting and competition, the grievor asserts in a generally way that she was denied opportunities afforded other employees and that the opportunities she got were not as advantageous as those that others got. Again, the evidence does not identify the actual or apparent racial origins of the decision-makers or of the other employees to whom they allegedly gave preferential treatment. I do not suggest that evidence of the matters just referred to would have been necessary, or sufficient, for these grievances to succeed. These observations are simply meant to illustrate and underscore my conclusion that the evidence before me is not an adequate basis on which to sustain the claims made.
22Disappointing as it undoubtedly is for Ms. Damani, the fact that an employee with her years of satisfactory service did not get the sort of work opportunities she sought during the period in question is not so surprising as to warrant, without other objective evidence of it, an inference that discrimination played a part in the outcome. The evidence put before me does not support the grievances.
23Accordingly, these grievances are dismissed.
Dated at Toronto this 7th day of July, 2000.