GSB#1948/93, 0179/94, 0236/94
UNION# 93F955, 94A574, 94A608
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(O’Brien)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE Deborah J.D. Leighton Vice-Chair
FOR THE GRIEVOR Tim Hadwen
Counsel
Ontario Public Service Employees Union
FOR THE EMPLOYER Len Marvy
Senior Counsel
Legal Services Branch
Management Board Secretariat
HEARING August 17, September 28, October 4, November 7, 20 and 21, 2001; January 23, 2002.
Introduction
In the original minutes of the settlement in this matter, made an order of the board on August 1, 1995 (the O’Brien award) the Ministry of Correctional Services agreed that in order to eliminate sexual harassment and discrimination in the ministry a systemic solution was required. To that end the parties worked hard to develop a comprehensive Systemic Change Programme. Having reached an impasse, on March 13, 2000, the parties agreed to further minutes of settlement to finalize the outstanding issues of the Systemic Change Programme in order to implement the O’Brien award. Many of these issues have since been settled by agreement of the parties. Others have required decisions by the board. This is the sixth decision pursuant to the March 13, 2000 minutes of settlement.
The Scope of Accommodation for Family Responsibility
One of the outstanding issues was the scope of accommodation for family responsibilities, that is whether the accommodations should only be available to female correctional officers or to all female staff. The board rendered its decision orally on August 17, 2001, but reserved on its reasons until other outstanding issues could be argued, using a quasi-interest arbitration format as agreed to by the parties.
The union took the position that family accommodation should apply to all female employees of the ministry. The employer took the position that family accommodation should only extend to women correctional officers. The oral decision as to the scope of accommodation for family responsibility was that the provisions agreed to or decided by the board on this matter must apply to female staff, although the employer may decide of its own volition to extend the provisions to all employees of the ministry.
The language of the original minutes of settlement recognized that the grievor’s human rights were violated and that the breaches occurred in a poisoned working environment. The parties agreed to certain remedies, which had three general purposes:
- To try to restore the grievor, Cheryl O’Brien to the position she would have been in had the discrimination not occurred;
- To provide the necessary measures through a joint Ministry/OPSEU process for creating a healthy and non-discriminatory workplace at the Windsor Jail;
- To provide the necessary measures through a joint Ministry/OPSEU process for ensuring that systemic changes are made in the Ministry’s policies and practices, and in particular the application of the Workplace Discrimination and Harassment Policy to prevent the reoccurrence in any correctional services institution of the circumstances which faced the grievor.
The Systemic Change Programme was mandated as the third purpose of the O’Brien award in order to eliminate the poisoned working environment. The agreement provided that not only would the policy put measures into place to eliminate sexual harassment and discrimination, but it would go farther and in order to promote equality of women correctional officers, the programme would include positive and supportive measures. The O’Brien award provides:
The Ministry agrees to work with OPSEU in developing and implementing a Systemic Change Programme which shall be designed to eliminate the barriers to full workplace participation of women correctional officers in the Ministry generally and in particular at the Windsor Jail. Such a programme would design and implement positive and supportive measures to promote the equality of women correctional officers including
a) accommodating staff with family responsibilities,
b) reducing the current imbalance between men and women in its Correctional Officer workforce and the lack of women in supervisory positions,
c) providing a speedy and effective resolution of discrimination complaints with an effective process for ensuring:
i. accountability of management and staff for a workplace free of discrimination and harassment and
ii. effective and prompt communication of discrimination complaints to the corporate level of OPSEU and the Ministry subject to the requirements of the Freedom of Information and Protection of Privacy Act and the principles of the Workplace Discrimination and Harassment Policy.
Specific measures to be taken include accommodating staff with family responsibilities. This language is not restricted to women correctional officers. It is clear, after carefully reviewing the minutes of settlement, that the parties intended the provisions, where necessary, to apply to more than only women correctional officers. For example, in subsection (c) the parties agreed to implement a process to provide resolution for discrimination complaints. The process is required to make both management and staff accountable. In this context it is clear that staff means employees who are not management. A later provision requiring an education programme was specifically to be provided to all ministry employees. So clearly, depending on the focus of the remedy, the parties specifically agreed to a scope beyond only female correctional officers.
The question put to me in August 2001 was whether the scope of family accommodation should include women correction officers or women staff. Given the language of the original agreement I concluded for the reasons noted above that the scope should be women staff.
Other Outstanding Issues
Other outstanding issues relating to family accommodation are to be decided without reasons in a quasi-interest arbitration format, according to the agreement of the parties. They pertain to language proposed to be included in the policy for accommodation of family responsibilities. This decision addresses only the issues that were not resolved by the parties. The parties agreed that in deciding the issues I was permitted to choose one position or the other or some combination or compromise between the positions.
Issue 1: Proposed language to be included under Guiding Principles
Employer Position
Workplace accommodation provides an opportunity for the correctional officer to work. (Or no language.)
Union Position
Accommodation provides an option for the correctional officer to remain at work or at home.
Decision
Neither of the proposed statements is to be included in policy.
Issue 2: Proposed language to be included in Guiding Principles
Union Position
If it is necessary to provide accommodation to an employee for family responsibilities, the employer is responsible for providing accommodation, short of undue hardship. And family accommodation needs are guided by the principles as outlined in the Ontario Human Rights Code.
Employer Position
If it is necessary to provide accommodation due to family status as defined by the Ontario Human Rights Code, the employer is responsible for providing accommodation short of undue hardship. Or Employer agrees to second statement proposed by union.
Decision
Family accommodation needs are guided by the principles in the Ontario Human Rights Code.
Issue 3: Proposed language to be included in Employer Responsibilities
Union Position
Provide a