GSB# 2726/96

UNION# 97C111

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Mrowinski)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community, Family and Children’s Services)

Employer

BEFORE

Janice Johnston

Vice-Chair

FOR THE UNION

Caroline V. Jones Paliare Roland Rosenberg Rothenstein LLP Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

January 24, 2002; April 16 & August 12, 2003.

DECISION

I have before me three grievances filed by Janet Mrowinski. The first grievance dated September 5, 1996 alleges:

I grieve that the employer has violated the seniority provisions of the Collective Agreement and has violated paragraph 3 of a Memorandum of Settlement in GSB#’s 1288/93; 1289/93; 1290/93.

The relief claimed is “better seniority date”.

The second grievance dated September 4, 1997 alleges:

The employer has violated the Central Collective Agreement Article 18 (Length of Continuous Service) which has resulted in an improper displacement (surplussing) under Article 20, on the [illegible] of Article 3 (discrimination practised by reason of handicap).

The relief claimed in this grievance is “to have continuous service date recognized to date originally employed by Ministry (Sept. 1988), disqualifying the surplus notice(s) received”.

The third grievance dated October 20, 1997, filed by Ms. Mrowinski is in the form of a letter which reads as follows:

October 20/97

To Mrs. Bennett, Supervisor

Dear Mrs. Bennett:

I am very concerned about the recent layoff notice received dated September 4/97, and on going.

Initially I was advised that my position was being eliminated. However, it has come to my attention that I am to be displaced. I have been given at various times other conflicting reasons for the issues of the notice.

I am an employee with a disability. I believe that this is on record with the employer.

I believe the lay off notice violates my rights under the collective agreement and the addendum concerning the “Enhanced Accountability Framework” between OPSEU and Management Board.

I request that the existing lay off notice be rescinded.

If there is to be a notice of layoff issued in respect of employment, I request that this be done in accordance with the collective agreement and the above-referenced Enhanced Accountability Framework.

If, in the future, I am improperly laid off from my position, I reserve the right to claim reinstatement and compensation for all lost wages and benefits.

I ask that this matter be referred to the next stage in the grievance procedure if it is not resolved to my satisfaction.

Sincerely,

Janet Mrowinski

The hearings in this matter commenced before me on January 24, 2002. At that time the parties and Mr. Mrowinski (the grievor's father) made opening statements. Mr. Mrowinski made it clear that he did not want to be represented by the union as he felt that the union had not acted in the best interests of his daughter in the resolution of three previous grievances. These grievances were settled in 1994 and were not before me. At the conclusion of the opening statements, we pursued settlement discussions which were ultimately unsuccessful. At that point the grievor and her father requested an adjournment of the proceedings. As counsel for the employer and the union did not object to the granting of an adjournment, the request was granted.

The hearing reconvened on April 16, 2003. At this time the grievor was represented by a different union counsel and no objection by the grievor’s father was raised to this representation. At this time I met with union counsel, the grievor and her father and at great length explained the process to Ms. Mrowinski and her father. Although I urged Mr. Mrowinski to consider a settlement of the three grievances, it became very clear that he was not listening to me and was determined to proceed to hearing.

Ms. Mrowinski is disabled. Although she is developmentally handicapped, the union did not take the position that she was incompetent or unable to testify in the proceedings. However, during our discussions on April 16th her father indicated to me that he felt that she was not fit to testify and that he should be able to give evidence on her behalf. I advised him that unless his daughter was incompetent or otherwise unfit to testify, she would have to give evidence to support the allegations of discrimination and harassment on the part of the employer and members of management that she had alleged. I told him that he could not testify about events that he had no first-hand knowledge of as he would simply be relating hearsay evidence concerning what he thought his daughter had experienced. Frankly in the circumstances of this case, I cannot think of any evidence which would have been more unreliable.

At the end of our discussions, we agreed that the counsel would discuss the possibility of an agreed statement of fact which would limit the evidence to be called by the union through the grievor.

On the next day scheduled to deal with this case, Mr. Mrowinski commenced by stating that his daughter was no longer prepared to be represented by the union. Although the same union counsel who had previously appeared was present, he now objected to being represented by that counsel as well. However, he agreed to proceed.

Counsel for the union commenced her submissions by asking Ms. Mrowinski to confirm that she was not prepared to testify in the proceedings. Ms. Mrowinski indicated that she was not prepared to do so. Union counsel then indicated that Mr. Mrowinski wanted to read a statement to the Board. Mr. Mrowinski then made submissions, most of which I had heard on previous occasions pertaining to the history of the case before me, his views concerning the events which led up to the grievances being filed and his concerns with the representation being provided to his daughter.

Counsel for the Ministry denied that there had been any violation of the collective agreement in this case and rejected any suggestion that the grievor had been discriminated against or harassed by the employer. Counsel then provided me with the following draft statement of facts:

DRAFT - Agreed Statement of Facts

1. The grievor began her employment with the Ontario Public Service as an unclassified employee with a series of contracts from September 19^th, 1988 to April 30^th, 1993.

2. The grievor's employment with the OPS (MCCR) ended on April 30^th 1993. The grievor subsequently filed three wrongful dismissal grievances which were resolved by a Memorandum of Settlement dated September 24^th, 1994.

3. The memorandum was a full and final settlement and included a general release clause at paragraph 10. Pursuant to the Memorandum of Settlement, if the grievor was successful in gaining a classified position, the grievor's seniority date or continuous service date would be effective the date of her acceptance of that new position unless by operation of the Collective Agreement the grievor was somehow entitled to an earlier seniority date.

4. In the grievor's circumstances, November 7^th, 1994 was the appropriate CSD as the grievor had a break in service between May 1^st, 1993 and November 6^th, 1994 which was greater than 13 weeks.

5. On February 6^th, 1996, Mr. Ed Dunn, employed in the position of Resource Clerk (OAG 3) with the Information Systems Branch of the Ministry, was advised that his position was being surplussed. Mr. Dunn had a CSD of January 9^th, 1989, and was working in an OAG 3 position prior to being surplussed. Mr. Dunn exercised his displacement rights and pursuant to a letter dated September 3^rd, 1996, was advised by the employer that in accordance with 24.9.1 (b) of the Collective Agreement (January 1^st, 1992 to December 1^st, 1993) he was being assigned to the position of File Clerk (OAG 2) at the Birchmount Road office of the Ministry of Community and Social Services. In or around this time, the grievor was advised that she was to be displaced by Mr. Dunn, a more senior employee at a higher classification. In response, the grievor filed her first grievance regarding her CSD on September 5^th 1996. The grievance indicated that the grievor wished a better seniority date.

6. The Employer postponed giving the grievor a surplus notice pending confirmation of her continuous service date. An investigation was completed on the grievor's CSD in May of 1997 which concluded the grievor's CSD was in fact November 7^th, 1994. One of the reasons in support of the Employer's rationale was the presence of a break in service of greater than 13 weeks. Accordingly, pursuant to the Collective Agreement between the parties, the CSD of November 7, 1994 was proper for the grievor in the circumstances.

7. In light of the above, the Employer implemented the September 1996 surplussing. By virtue of a letter dated September 4^th, 1997, the grievor was declared surplus and was provided a potential layoff date of March 4^th, 1998. The grievor indicated she wished to work out her notice period and be available for employment opportunities during that time.

8. The grievor apparently filed a second grievance on September 4^th, 1997, alleging an improper displacement under Article 20 and also a violation of Article 3 of the Collective Agreement. The Ministry did not receive notice of this grievance until November 21^st, 1997, and maintains that it is not timely pursuant to the Collective Agreement between the parties. The grievor filed a third grievance on October 20^th, 1997, regarding the Enhanced Accountability framework and also again the recent layoff notice. The Employer takes the position that this grievance was also not filed within the time limits specified of the Collective Agreement and therefore is not arbitrable.

9. The grievor was offered and accepted a temporary assignment under Article 20 of the burgundy Collective Agreement on February 27^th, 1998.

The temporary assignment was as a File Clerk (OAG 2) and the duration was from March 2^nd, 1998 to June 30^th, 1998. The grievor maintained her rate of pay at $15.87 per hour. On June 25^th, 1998, the Ministry assigned the grievor to a vacancy under Article 20.5.2 of the burgundy Collective Agreement. This position was as a Income Maintenance File Clerk (OAG 2) at the 252 Parliament Street Ministry office. The grievor began work in this position at that time.

10. As a result of the Ministry contracting out the "Ontario Works" portion of the Ontario Disability Support Program (ODSP), all File Clerks (OAG 2) across the province were surplussed in and around June of 1999, including the grievor. In particular, all file clerks in the Toronto region office were surplussed and only two (Shirley Beales, CSD 1978 and Stephen Gill, 1976 CSD) were reassigned pursuant to the surplus provisions. All other file clerks in the Toronto region offices did not secure employment through the surplussing and job stability provisions of the Collective Agreement. Some affected employees retired and others applied to subsequent competitions. In one example, an employee named Arata De with a 1988 CSD was surplussed and elected to work through her notice period and preserve her recall rights through to December 2001. No work was ever offered to this employee as the work had been contracted out of the Ministry.

For the sake of completeness, I have attached the Memorandum of Settlement referred to in Paragraph 2 to this decision as Appendix “A”.

Counsel for the union requested time to review the proposed statement of facts with her client. After a lengthy recess, counsel indicated that they were prepared to agree that Paragraphs 1 and 9 were accurate and that the first four sentences of Paragraph 10 were also agreed to. The union and Mr. Mrowinski did not take a position on the last two sentences. The union and the grievor indicated that although they disagreed with the factual assertions in Paragraphs 2 to 8, they would not be calling any evidence to contradict them.

In response, counsel for the Ministry brought a motion to dismiss the grievances before me. If the grievor refused to testify and the union could not prove its case otherwise, counsel argued that the union had failed to meet the onus upon it and the grievances should be dismissed. In support of his position, counsel referred me to Day v. Canada (Department of National Defense) No. 6 April 4, 2003, CHRR Doc 03-069, 2003 CHRT 16 (Groake) (the “Day” case). The Day case dealt with a complaint filed with the Canadian Human Rights Tribunal. In that case, the Tribunal found Ms. Day to be an unreliable witness and in the absence of any admissible evidence to support her allegations of harassment, dismissed her complaint.

Although much of the employer’s proposed statement of fact has not been agreed to by the union or the grievor, I have set it out in this decision as it represents the employer’s position on the events leading up to the filing of the grievances before me. I wish to make it clear that save for those paragraphs specifically agreed to by the union and the grievor I have not relied upon the facts asserted by the employer in coming to the conclusions reached in this decision.

In the case before me, I do not have any evidence before me to substantiate the allegations raised in the grievances. All I have before me are a few agree-to facts pertaining to Ms. Mrowinski’s employment history with the Ministry. As Ms. Mrowinski’s refused to testify, the union was unable to advance a case on her behalf. Given the nature of the grievances, her first-hand evidence regarding the events alleged was crucial.

Before leaving this matter, I would like to commend counsel for the union and the employer for their patience and understanding in dealing with a difficult situation. It is unfortunate that the grievor’s father refused to accept the advice he was being given by both the union counsel involved in this case. His refusal to allow his daughter to testify tied the hands of union counsel and unfortunately led directly to the dismissal of the grievances. In my view, the counsel retained by the union to represent the grievor did so in an extremely competent and capable manner.

Accordingly, as the union was unable to put forward any evidence to substantiate the three grievances, I have no choice but to dismiss them.

Dated in Toronto this 27^th day of August, 2003