Re The Crown in right of Ontario (Ministry of Transportation) and Ontario Public Service Employees Union [Indexed as: Ontario (Ministry of Transportation) and O.P.S.E.U. (Sager) (Re)]

File No. 2000-0377 Ontario Crown Employees Grievance Settlement Board L. Mikus

Heard: May 7, 2004 Decision rendered: October 6, 2004

GROUP GRIEVANCE alleging failure to provide safe and healthy work environment. Motion for non-suit upheld; grievance dis-missed.

M. Niemi, for the union. F Salim, for the employer.

AWARD

This award deals with a motion for non-suit brought by the Employer. The Union did not put the Employer to its election and the motion proceeded by way of written submissions.

The grievance at issue is dated March 7, 2000 and alleges as follows: We grieve that Employer violated the agreement by abusing staff through demeaning, authoritative and insulting comments, by provocative body lan-guage, by treating staff differently in similar circumstances, by neglecting emergency communications to staff from their families, by providing different and conflicting answers to questions, by attacking staff ideas and chastising staff so loudly that it can be heard elsewhere, by yelling at us, by telling us that it doesn't take any brains to do our job, by trying to intimidate by saying we should be thankful we' have jobs and that we haven't been replaced with temps, by the pounding of fists on a desk, by repeating information given a super-visor to other employees and by being told that we don't have staff meetings because they turn into "bitch" sessions and favouritism.

REMEDY That the Employer assure a non-recurrence of these breaches of the agreement, that it undertake the training of its supervisor(s) to provide that mechanisms to be agreed upon be put in place to obviate the need for this type of grievance again and such other remedy as may be agreed upon or decided by a board of arbitration.

The Union, in its particulars, explained its position as follows: The Union's position on the grievance is that the Employer has breached article 9 of the Collective Agreement by failing to provide the grievor's with a safe and healthy work environment. Supervisor Cindy Moorehead's treatment of the grievor's was abusive, harassing and intimidating: It created a stressful and poisonous work environment for the grievors.

The Union will be seeking a declaration that the Employer has breached their obligations under the Collective Agreement, an order for an apology to be made to the grievors and full financial compensation for Joe Cordeau for his loss of credits and wages while on short term sick leave in 2000.

The grievance was originally signed by fifteen grievors but two of the grievors later withdrew their names. Of the remaining thirteen grievors, four gave evidence as representative of the group. The claim for compensation for Mr. Cordeau was withdrawn and, in its opening statement, the Union confirmed that it was relying solely on incidents that had occurred in the Microfilm Unit in the latter part of 1999 and the early part of 2000.

At the conclusion of the Union's case the Employer brought for-ward its motion for a non-suit, taking the position that the Union failed to make a prime facie case of a violation of the collective agreement. It asked that the grievance be dismissed.

Because Ms. Moorehead was not given an opportunity to respond to these allegations I have concerns about presenting only the grievors' version of the incidents giving rise to the grievance. In the circumstances I have decided to summarize the evidence as follows: Ms. Moorehead was asked about having staff meetings and allegedly said they only turned out to be bitch sessions and so she only had informal meeting in the department during which she chastised employees in front of others and yelled at staff; she would call people into her office and yell at them so loudly that others could hear—often people would come out of her office in tears; she insulted staff continuously by telling them that anyone could do their jobs and that it did not take any brains to do it; she often threatened to replace them with temps or to do the jobs herself; she refused to agree to place a another phone in the area, even though two phone calls about emergency situations had not been put through—Ms. Moorehead told them they would always be on the phone if it was available; she improperly released confidential information to other employees about personal situations told to her in confidence; she was erratic in her moods, a Jekyll and Hyde, causing stress and tension because one never knew how or whether to approach her; she used foul and obscene language in a loud voice, although never directed at anyone in particular, most often at inanimate objects; she insulted the staff by appointing an outsider to a temporary position instead of offering it to all staff. Without minimizing the seriousness of these claims to the grievors, that is the substance of the evidence from all of the Union witnesses. It is consistent with the allegations contained in the grievance. Ms. Moorehead, had she testified, would have denied these alle-gations.

SUBMISSIONS OF THE PARTIES

Mr. Salim, counsel for the Employer, took the position that the Union had failed to meet its onus in that its evidence has failed to support the allegation that the grievors' health and safety were jeop-ardized by the actions or inaction of the Employer. It was said that the only evidence before this Board was that of a few employees who were unhappy about a series of management decisions, including decisions about the placement of an additional phone in the micro-film department, the appointment of a temporary supervisor in the microfilm department and Ms. Moorehead's manner of speaking. That is not evidence of probative value warranting a response from the Employer.

Ms. Niemi, for the Union, characterized this as a "bad boss" case where the abusive conduct of a manager violated the Collective Agreement. Ms. Moorehead's treatment of the grievors was abusive, harassing and intimidating, including erratic and unpredictable behaviour, insulting staff individually and as a group, demeaning comments, use of foul language, yelling, pounding of fists, threaten-ing and intimidating and causing a poisoned work environment. The Employer knew of these concerns and allowed its supervisor to treat its employees so appallingly that their place of work became stress-ful, tense, demeaning and poisonous. The Union's evidence has not been challenged and must be taken at its highest. The Board should draw the reasonable conclusion that the Union has made out a prima facie case. It was submitted that it is important that the grievance be decided on its merits. The grievors have been through an extremely stressful experience and deserve to have complete transparency in the process and, ultimately, closure based on fairness and natural justice. To deny them this natural justice when they feel they have been repeat-edly wronged by the Employer would be grossly unfair.

REASONS FOR DECISION

The Employer's motion seeks to have this grievance dismissed on the grounds that the evidence does not support the Union's allega-tion that the Employer has violated the Collective Agreement. The principles governing non-suit motions are described in Sopinka and Lederman, The Law of Evidence in Civil Cases (Butterworths, 1974) at p. 521, as follows:

An important part of the division of roles between judge and jury is the assessment of the probative sufficiency of the evidence adduced by a party to establish his case. If a plaintiff fails to lead sufficient material evidence, he may be faced at the close of his case by a motion for a non-suit by the defen-dant. If such a motion is launched, it is the judge's function to determine whether any facts have been established by the plaintiff from which liability, if it is in issue, may be inferred. It is the jury's duty to say whether, from those facts when submitted to it, liability ought to be inferred. The judge, in performing his function, does not decide whether in fact he believes the evidence. He has to decide whether there is enough evidence, if left uncontra-dicted, to satisfy a reasonable man. He must conclude whether a reasonable jury would find in the plaintiff's favour if it believed the evidence given in trial up to that point. The judge does not decide whether the jury will accept the evi-dence, but whether the inference that the plaintiff seeks in his favour could be drawn from the evidence adduced, if the jury chose to accept it. This decision of the judge on the sufficiency of evidence is a question of law; he is not rul-ing upon the weight or the believability of the evidence which is a question of fact. Because it is a question of law, the judge's assessment of the probative sufficiency of the plaintiff's evidence, or of the defendant's evidence on a counter-claim for that matter, is subject to review by the Court of Appeal. [Emphasis in original; footnote omitted.]

Assuming there are no issues regarding credulity, a non-suit motion cannot succeed if the party carrying the burden of proof has presented some evidence which supports each of the essential elements of its claim.

In the case of Re Ontario (Ministry of the Attorney General) and O.P..S.E. U. (Gareh) (Re), GSB #1665/98, R. Brown, the Board said, at p. 3: The standard of "sufficient" evidence was again applied by the Court of Appeal in Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1995), 56 O.R.,(2d) 160:

In dealing with such a motion, a judge must decide whether sufficient prima facie evidence has been presented by the applicant. At this stage, the plaintiff [opposing the motion] is entitled to have the facts interpreted in the manner which is most favourable to him or her: Hall a Pemberton ... (page 167; emphasis added).

In this claim the grievors have alleged that the Employer has breached Article 9 of the Collective Agreement by failing to provide a safe and healthy work environment. The breach was the result, it was said, of Ms. Moorehead's abusive, harassing and intimidating manner towards the employees. That provision was the subject of a grievance in the Rideau Regional Centre (Re Ontatio (Ministry of Community and Social Services) and Laframboise, J. Roberts, GSB #2268/95), which con-cerned the question of when, if ever, the employer will become responsible under the Health and Safety provisions of the Collective Agreement for the consequences of the stress placed on employees by an abusive "bad boss". The introduction of the award contains an excellent description of the cases that might fall under this general heading of "bad bosses".

In any large organization you will find a few "bad bosses". They may be regarded as "bad bosses" because they seem intoxicated with their power, or cold and forbidding, unfair and unreasonable, secretive and suspicious, ruthless and callous, manipulative and untrustworthy, or disorganized and irre-sponsible. Some might even suffer from alcoholism or addiction. From a health and safety perspective, however, one of the worst types of bad bosses must be "abusive" bad bosses — those who routinely rave at, bully or demean their employees — for they can undermine their employees' self-esteem and self-confidence to the point of triggering serious illness.

This arbitration involves the question of when, if ever, the employer will become liable under the health and safety provisions of Article 18.1 of the collective agreement for the consequences of the stress placed on employees by an abusive bad boss. For reasons which follow, it is concluded that the employer will be liable for a breach of these provisions whenever managers fail to take adequate countermeasures in response to circumstances raising a reasonable probability that unless they do so, the practice of abuse engaged in by a bad boss under their directions will trigger serious illness in one or more employees.

Arbitrator Roberts went on at p. 57 to define "serious illness" as follows:

My use of the term "serious illness" in the above definition of the employer's liability is intended to differentiate between stresses, tensions, irritations or unhappy situations that do not amount to medically recognized conditions and those which do not. A similar effort to make this differentiation was made in an authority to which I was referred by counsel for the employer Re Westfair Foods LTD and United Food and Commercial Workers, Local 823 (1992), 29 L.A.C. (4th) 222, at 250 (Manitoba, EM. Steel).

In that case the learned arbitrator said:

There was no evidence adduced to indicate that any employee became ill, required medical treatment or suffered any effects on their health as a result of Mr. Cesario's [i.e. the alleged abusive bad boss's] conduct. Some of the employees testified they were nervous or had difficulty sleeping at night, yet no evidence was led of medical reports or compensation claims or even time taken from work. It is true that Karen Garrioch vomited at work and took the rest of the day off on the doctor's advice; however, there was no medical evidence adduced to indicate the reason ... I agree that the situation was unpleasant, but something more must be shown before an unsafe working condition is established ... at 250-51

The accepted test to be applied in determining whether to grant this motion is clear. The Board must be satisfied that the evidence before it, if accepted, discloses a violation of the collective agreement, namely article 9. As well, the Board must assess that evidence in a manner most favourable to the grievors. If it is satisfied that the evidence requires an answer from the Employer, the non-suit must fail. I make no findings about the truth of the evidence. That is not my role at this stage of the proceedings. Nevertheless, for purposes of this motion, even if I were to accept all of the allegations as valid, I do not believe they satisfy the test set out above. The Laframboise case (supra), contemplated similar situations in its introduction and concluded that the actions of the abusive bad boss had to have reasonably been anticipated to result in a serious illness. Serious illness must be more than tension, stress, irritation or unhappiness. As in the Westfair case [Re Westfair Foods Ltd. and U.F.C.W., Loc. 832 (1992), 29 L.A.C. (4th) 222 (Steel)] there is no evidence before me that any of the grievors became ill, required medical attention or even missed any time at work because of the alleged abuse. There is simply no evidence before me that the health and safety of the grievors was affected by the actions of Ms. Moorehead. My jurisdiction is derived from the collective agreement and the evidence before me must be sufficient to show that an allegation that a provision of the Collective Agreement has been breached has raised a question requiring a response from the Employer. There is no evidence before me upon which I can find such a breach.

DECISION

For the reasons set out above, the Employer's motion for non-suit is granted and the grievance is dismissed.