GSB#1203/99

UNION#99B943

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 the Health and Long-Term Care) Employer

BEFORE: Owen V. Gray, Vice-Chair

FOR THE GRIEVOR: Eric O’Brien, Counsel, Eliot Smith, Barristers and Solicitors

FOR THE EMPLOYER: Andrew Baker, Counsel, Legal Services Branch, Management Board Secretariat

HEARING: July 12, October 30 and 31 and November 8, 2000 and February 19 and March 2 and 6, 2001.

DECISION

Background

1On July 2, 1999, Yasmin Damani filed the following grievance with respect to a job competition:

I grieve that I have been unjustly denied a competition for a (Project Assistant, Blood Program). This is contrary to Article A(3.1,.3.2,6.3.1,6.3.2 and ARticle [sic] 8 & 9.

I ask that I be provided with the detailed results of my competition and that I be awarded the assignment.

The Blood Program position to which the grievance refers was a temporary one. Having regard to Article 8.6.1 of the current collective agreement, it was not a vacancy to which Article 6 applied. Although a form of competition was conducted to fill it, the employer was not obliged to do that. Accordingly, the union did not pursue the claim that the employer breached 6.3.1 and 6.3.2. It did, however, pursue the claim that in filling the temporary position the employer had acted in a discriminatory fashion contrary to Article 3 of the collective agreement.

2Applicants for the Blood Program position were solicited while the grievor was on a three month temporary assignment as a Project Assistant with the Mandatory Programs Compliance Project. By the time the hearing of this grievance began, the union was alleging as part of the grievance that the employer had acted in a bad faith and discriminatory manner during the grievor’s temporary assignment and in failing to extend it, as well as in failing to award the grievor the temporary position in the Blood Program to which the written grievance refers.

3The 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. According to her testimony in this proceeding, her current OAG 8 position is Administrative Assistant, Environmental Health Unit, Public Health Survey Branch.

4In late 1998, the grievor had two outstanding grievances awaiting hearing. They had been filed in June 1995 and August 1997. In them, the grievor asserted that she had been disadvantaged in various job competitions because she had earlier been denied secondments, temporary assignments and other developmental opportunities that had not been not been the subject of competitions. The grievor claimed that those denials of developmental opportunities were a reaction to her race and union activity, and constituted discrimination on prohibited grounds contrary to the applicable collective agreement. The particulars of the claim asserted when those grievances were later heard at arbitration are set out in my decision dated July 7, 2000 in Board Files 1581/95 and 1703/98. It is of significance here that the matters about which the grievor complained included management’s alleged failure to give her adequate or timely feedback with respect to her job performance and her performance in job competitions.

The Temporary Position with the Mandatory Programs Compliance Project

5During the course of negotiations for the settlement of her earlier grievances, the grievor was offered the temporary assignment as a Project Assistant with the Mandatory Programs Compliance Project. The offer was contained in the following letter of January 29, 1999:

Dear Yasmin:

This letter will confirm our offer of a developmental opportunity as the Project Assistant with the Mandatory Programs Compliance Project in the Public Health Branch.

Your appointment to the position will be effective February 1, 1999. This position is classified at the OAG9 level and your salary will be $19.49 per hour.

The terms of this assignment are as discussed. The assignment will initially be for 3 months with the possibility of an extension of up to an additional 3 months. This extension will be dependent upon your ability to meet the performance expectations of the position which will be reviewed with you at the beginning of the assignment. I will meet with you on a bi‑weekly basis to review performance to date and to assist in the development process. Job‑related training needs will be identified and will be undertaken at the earliest possible opportunity.

You will retain your home position in Public Health Branch, and you may elect to discontinue this developmental assignment with two weeks notice to me and to your home position manager.

Please indicate your acceptance on the line below and return to me as soon as possible.

I look forward to working with you and wish you the very best on your new position.

Sincerely,

Geoff Kettel, Manager Corporate Liaison and Resource Service Public Health Branch

This offer was not conditional on Ms. Damani’s abandoning any aspect of her outstanding grievances. She accepted it.

6On the face of it, the provision for bi-weekly meetings was to the grievor’s benefit. That she saw it that way seems apparent from the first portion of an e-mail message she sent unsolicitied to Suellen Watt in the Ministry’s HR Branch (with a copy to Mr. Kettel) on February 10, 1999, after the first such bi-weekly meeting:

Dear Sue:

In attendance: Geoff Kettel and Diane Alexander

I met with the Manager at his request to discuss my Performance Expectations. Copy attached for your review.

At that meeting I verbally presented my expectations to which the Manager agreed and are as follows:

1. What are we meeting today about.

2. Need clarification of setting up my expectations.

3. To acquire better knowledge of the project.

4. Better my skills in the area of project management.

5. Ideas as how to manage time performing so that I can give my best performance when carrying out the project.

6. To meet deadlines to get better in the job and get as much training as possible with assistance from my employer. I hope to achieve in carrying out my responsibilities.

My expectations from my employer where as follows:

To provide me with feedback on my work assignment and to inform me anytime areas where I can improve and get better.

To remove the printer before our next meeting. …

I shall return to the expectation about the removal of the printer, and the balance of this message, later in this decision. At this point I simply wish to highlight the grievor’s own expectation that she would be provided with feedback on her performance. There is no evidence that the grievor was concerned or complained about the inclusion of a provision for bi-weekly meetings for the purposes indicated in the offer, although it is apparent she was constitutionally suspicious that the provision might not be administered in good faith or to her satisfaction.

7Geoff Kettel has been a member of management in the OPS for a number of years. He came to the Ministry of Health in 1996. He became Manager of Corporate Liaison and Resource Services in the Public Health Branch in October 1998, just a few months before the offer of January 29, 1999 was made to Ms. Damani. Asked how that offer came about, he testified that there was a discussion at management committee concerning providing a senior secretarial/project assistant development opportunity to Ms. Damani. He understood that this was an initiative of the HR Branch. He did not know much about Ms. Damani. He had a need at that time for assistance for Diane Alexander, a Project Manager who reported to him. He agreed to provide the developmental opportunity.

8When Ms. Damani’s temporary assignment as her assistant began, Diane Alexander had been working in the Public Health Branch for about 2 years. Ms. Alexander’s main duties were in three areas. She was coordinating the Educations Days, a conference for members of municipal Public Health units to be held March 1 and 2, 1999. She was working on issues relating to the monitoring and assessment of municipal Public Health units with respect to their compliance with their legal obligations. She was also consultant to the Ontario Breast Screening program.

9When the possibility of her having an assistant arose, Ms. Alexander prepared at Mr. Kettel’s request a description of the duties such an assistant might perform. When it became clear that she would have an assistant she fleshed out the first description in what she considered to be a more easily read form. The revised job description was used as the basis for a Performance Expectations document used in the bi-weekly meetings contemplated by the job offer Ms. Damani accepted. Items corresponding to elements of the job description appear in the left hand column of the document. Prior to each bi-weekly meeting Ms. Alexander added comments, positive or negative, about Ms. Damani’s performance opposite the relevant item. Her comments were discussed at the bi-weekly meetings, which were attended by Mr. Kettel, Ms. Alexander and Ms. Damani.

10Performance Expectation meeting were held on or about February 9 and 23 and March 9 and 23, 1999. On the basis of Ms. Damani’s comments at these bi-weekly meetings, Ms. Alexander afterwards modified or qualified some of the comments in the Performance Expectations. She did not make all the changes Ms. Damani asked for, however. She left unchanged comments to which Ms. Damani took exception unchanged when she felt they remained valid despite what Ms. Damani had said at the meeting at which they were discussed. The Performance Expectations document was cumulative: subject to whatever changes Ms. Alexander felt appropriate, comments that had been discussed remained in the document, and new comments were added to it for purposes of the next meeting. New comments were marked to distinguish them from comments that had already been discussed.

11In addition to Ms. Alexander’s comments in the Performance Expectations document concerning Ms. Damani’s performance, the participants in the bi-weekly meetings also discussed concerns raised by Ms. Damani. Early on she complained about the fact that a printer was located in her work area, and that she did not have voice mail.

12The desk in the work area to which the grievor was assigned had not been occupied immediately prior to her arrival. A fax machine and printer used by various nearby employees had been located in that work area. The fax machine was relocated to another employee’s work area just before or just after Ms. Damani arrived. The printer remained. The grievor complained that the use of the printer by others distracted her from her work. The balance of her e-mail of February 10, 1999 elaborated on that theme:

Today (Feb.10/99) I was advised by the Manager that the Printer will not be removed.

Let me reiterate that after twenty‑two years of my service with the OPS, I accepted this assignment as a challenge but I find I am being personally challenged with that atmosphere created around my workstation. The situation you have created for me is to say the least extremely physically taxing and stressful.

The printer in my workstation interferes with my mental thinking of work. I cannot stay in a normal thinking mode to concentrate with the constant stream of activities going around the printer which I am sure you would appreciate can only serve to negatively affect my performance of this new assignment.

This issue also brings into question the health and safety aspect of my present location which ought to be addressed in a more sensitive manner.

Although I appreciate the new challenge my physical health is being affected in that I am starting to feel the anxiety and pressure not normal for what is supposed to be and ordinary office assignment.

13Mr. Kettel sought advice on whether the printer posed a risk to the grievor’s health and safety, and was told there was not an obvious risk. He nevertheless further investigated moving the printer. He ultimately decided not to do so. He considered that there were unacceptable risks associated with relocating the printer to the only other location he had identified as feasible at the time. Mr. Kettel testified that an alternate location for the printer was eventually found two years later, but in the meantime it had remained in that work area with two other successive occupants of it, both of whom had appeared to tolerate the arrangement.

14Mr. Kettel was sympathetic to Ms. Damani’s request for voice mail because he felt every employee should have voice mail. At the time, however, Ministry policy required that for every group of employees with voice mail there should be a “zero target” telephone that would be answered by a live employee when a caller responded to an outgoing voicemail message by pressing “0”. It took a while to work out the zero target issue in the area that included Ms. Damani. According to Ms. Damani she was told at one point that her telephone was to be the zero target, but that did not happen. She did get voice mail some time around the end of March.

15Ms. Damani testified that she had a problem with office supplies. The desk in the work area to which she was assigned did not have supplies such as a stapler, scotch tape, scissors and so on. Ms. Damani dealt with this by taking supplies from the desk in her home area at which she had been working before commencing the temporary assignment. The supervisor there, Barbara Margeson, asked that she return the items taken, because a temporary person coming to work there would need them. In her testimony Ms. Damani asserted, among other things, that this was an example of the employer’s unfairly preferring temporary employees over permanent ones — on of the themes of her testimony in the hearing of her earlier grievances.

16Ms. Damani addressed the printer and supplies issues in an e-mail message that she sent on February 22 to Mr. Kettel, with uninvited copies to Suellen Watts in HR and Dr. Colin D’Cuhna, Mr. Kettel’s superior. The following passage from that e-mail message seems to me both illustrative of her dealings with Mr. Kettel and corroborative of Ms. Alexander’s unchallenged testimony about the grievor’s grammar:

On February 18/99 I returned my prior belongings to my old desk upon request as per your e‑mail dated Feb. 18/99. I did manage to find whatever necessities that I needed for my new desk out of the cupboard.

Geoff, now I would like to note that I have come to you for the past month addressing to you the trivials around my new position which is still not clarified after thirty days to my full satisfaction of my position but I can see that there was time found to address the facts of Barbara her e‑mail dated Feb. 18/99.

I feel that you have not put your full potential into solving this problem that I am incurring in my new position.

I am not writing to create problems but to solve the problems that is causing kaos in my new position, so that I may feel more comfortable in my new position.

17Mr. Kettel testified that a senior secretary at the OAG 9 level is expected to have certain skills: typing skills, familiarity with certain software, including spreadsheet software, a sense of how to classify information, judgement about prioritizing work, attention to detail, communication skills and the ability to deal with others. His assessment of Ms. Damani’s work during the temporary assignment was that she was not at that level, particularly with respect to attention to detail and facility with spreadsheet software. She required a lot of checking and editing that should not have been required at that level. There were also difficulties with managing priorities, of which he gave Ms. Damani’s having missed a scheduled meeting with Ms. Alexander as an example.

18Ms. Damani gave this account of the missed meeting. She was scheduled to meet with Ms. Alexander one day at 2 p.m. She chose to go to a restaurant for lunch that day. At 1:58 p.m. she telephoned Ms. Alexander from the restaurant to say she would be 5 to 10 minutes late for the meeting. Ms. Alexander told her that the meeting could not begin late because she had another meeting scheduled at 2:30 p.m. Ms. Damani returned to the office at about 2:10 p.m. Her 2:00 p.m. meeting with Ms. Alexander did not occur. Ms. Damani’s explanation in the hearing was that she would not have gone to the restaurant if she had known Ms. Alexander had another meeting scheduled for 2:30 p.m.

19Ms. Alexander testified that she expected an administrative assistant at the grievor’s level to have the following skills and training: proficiency in the use of Microsoft Word, Excel and Powerpoint, the ability to write a letter, excellent grammar and attention to detail. Over the course of the temporary assignment she found the grievor lacking in all of these areas. Ms. Alexander discovered that Ms. Damani’s grammar was not very good, nor was her attention to detail. Although Ms. Damani was “pretty good” at Word, she was not familiar with Excel, the spreadsheet software in use in the Ministry. Ms. Alexander had wanted to set up information concerning the health units in a spreadsheet, and Ms. Damani had difficulties doing that. Ms. Alexander had to give her instruction in the software in order that she could perform fairly basic work setting up spreadsheet columns and entering information into them. The work then had to be sent back for correction when, for example, the grievor kept entering the names of registrants for the Education Days in the column in which she was supposed to enter the name of the Public Health unit at which the registrant worked. There were also errors in setting up the spreadsheet so that the cost of travel of registrants could be calculated and totalled.

20By the time that extension of the temporary assignment was considered, recent changes in the funding of health units had shifted the focus of the compliance program away from assessment towards education. The major focus of the education component of the program was on Education Days that were to be organized and conducted for health unit staff. A good deal of Ms. Damani’s work had been on setting up the first Education Days, which were held in March 1999. No further work on such an event was needed for several months thereafter. Given the financial situation in his area, Mr. Kettel felt that an extension of Ms. Damani’s temporary position could not be justified on the basis of need, particularly in view of difficulties they had experienced with Ms. Damani’s performance. No further temporary position was established to assist the person who took over Ms. Alexander’s work when she left that position at the end of April 1999 to take another position in the Ministry.

21At one point it was asserted on Ms. Damani’s behalf that the terms of the offer of the temporary assignment gave her the right to an extension, whether or not the employer had any continuing need, if she met the performance expectations of the position. I do not agree with that interpretation, but the point is moot because it is apparent that she did not meet the performance expectations.

22It is appropriate to repeat here some of the observations I made when I dismissed the grievor’s earlier grievances:

[17] I 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.

[18] The 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.

23During the hearing there was an initial failure by the employer and its counsel to make full disclosure of documents they had undertaken to produce. There was also a difficulty with the form and completeness of certain purported copies of relevant documents. Disturbing as those matters were, I am not persuaded that they involved any deliberate misrepresentation, or that they support the grievor’s claims of discrimination.

24Union counsel cross-examined Ms. Alexander and Mr. Kettel exhaustively in aid of Ms. Damani’s search for evidence of bad faith in the administration of the temporary assignment. Their testimony thoroughly persuades me there was no such bad faith, and that the grievor’s race played no part in any of their dealings with or decisions about Ms. Damani.

25In her testimony, and later in the argument union counsel presented on her behalf, Ms. Damani pointed to a number of circumstances that she felt demonstrated that the temporary position was managed in bad faith, in retaliation for her past complaints and attempts to advance and to discourage her from complaining or seeking advancement in the future. I do not propose to catalogue those circumstances and arguments here. I have reviewed each of them. I am not persuaded that they demonstrate any discrimination on the basis of race or union activity.

26I am not persuaded that the temporary assignment was offered or conceived or designed in bad faith either. The grievor’s evidence was not sufficient to shift the burden of persuasion on this point to the employer, so it is of no consequence that the employer did not call anyone to explain why the temporary position was offered or structured as it was.

The Temporary Position with the Blood Program

27In September 1998 the Provinces and Territories together formed Canadian Blood Services, to take over functions previously performed by the Canadian Red Cross. Ontario provided about half of the funding for the new service; its Ministry of Health was the lead ministry. Within that ministry, responsibility for Ontario’s involvement initially rested with the Health Economics Branch. In the spring of 1999 there was discussion of transferring that responsibility to the Health Protection Branch. The budget related to that responsibility was transferred to the Health Protection Branch as of April 1, 1999. No permanent positions came with that budget. The Branch decided to offer a temporary 5½ month position to assist with the start-up in this area. Mr. Kettel testified that they did not have anyone in mind for the position when that decision was made. On April 21, 1999, there was an informal posting by e-mail, inviting applicants for the position. Ms. Damani was one of the recipients of that posting. She applied for the position.

28The posting had been drafted by Mr. Kettel’s secretary on his instruction while he was away from the office on business. He left the details of the message to her. It went out late in the day on April 21 and had a closing date of April 23. When Mr. Kettel learned of the closing date he thought that the application period was too short as a matter of principle. He directed his secretary to extend the closing date and advise all potential applicants.

29Ms. Damani claims to have been told by Mr. Kettel’s secretary, or to have overheard her tell someone else (it is not clear which), that hers was the only application received by the original closing date. The union did not call the source of this hearsay to say whether it was true. In any event, Mr. Kettel testified without contradiction that when he directed that the closing date be extended he did not know who, if anyone, had applied for the position. He did not learn anything about applicants until the extended closing date had passed. At that point there were two candidates: Ms. Damani and Nancy McGuiness.

30Mr. Kettel and David Reeleder interviewed both applicants. Mr. Reeleder was the person handling the Canadian Blood Service file. They asked each applicant the same set of prepared questions. Ms. McGuiness gave more complete, accurate and insightful answers, and got a better score on the interview. Mr. Kettel and Mr. Reeleder decided to offer Ms. McGuiness the job. Mr. Reeleder made the offer. Once the position had been accepted by Ms. McGuiness, Ms. Damani was informed that she was not the successful candidate.

31While the competition process here may not have had all of the features that the GSB has said that competitions for permanent positions should, there is nothing about the differences that disadvantaged or was calculated to disadvantage Ms. Damani relative to the other candidate. Nothing in the circumstances comes close to establishing that discrimination on the basis of race played any part in the decision to award Ms. McGuiness the temporary assignment.

32With respect to the allegation of discrimination on the basis of union activity, I was told again about the request that was made to Ms. Damani with respect to faxes arriving from the union after she had returned to her home position. The added detail of the evidence presented on this occasion did not change the impression I formed of these same events when the union put evidence about them before me in support of Ms. Damani’s earlier grievances. Management’s conduct in those events did not constitute discrimination on the basis of union activity, nor does it demonstrate any inclination to engage in such discrimination. There is nothing in the evidence before me that persuades me that there was any such discrimination during or in relation to the grievor’s temporary assignment or the filling of the temporary assignment in the Blood Program.

Decision

33For the reasons given, this grievance is entirely without merit and is hereby dismissed.

34A central theme of the grievor’s complaints in this and the previous grievances was that only discrimination on the basis of her race or her union activity can explain the fact that she has not advanced beyond the OAG 8 level in her approximately 25 years in the Ontario civil service. From the evidence I heard it is clear that the grievor lacks computer, communication and other skills that are increasingly important in positions at higher levels of responsibility and independence. The energies she has thus far expended casting groundless aspersions on the motivations of management might be more productively refocused on improving her qualifications for the kinds of positions to which she aspires.