GSB# 2002-2375
UNION#2002-0411-0038
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Ranger)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Deborah J.D. Leighton
Vice-Chair
FOR THE UNION
Gavin Leeb Barrister and Solicitor
FOR THE EMPLOYER
Ferina Murji Counsel Management Board Secretariat
HEARING
January 26 and May 13, 2005.
Decision
In his grievance dated December 19, 2002, Robert Ranger, a Correctional Officer, alleges that the employer has breached the collective agreement by condoning direct discrimination by fellow employees and managers, which has created a poisoned work environment for him at Ottawa-Carleton Detention Centre. He alleges further that this poisoned environment has caused him to suffer harassment and discrimination because of his sexual orientation. A second grievance dated June 18, 2004, alleging that the employer has failed to accommodate Mr. Ranger was consolidated on the first day of the hearing into the merits of this case.
This decision addresses a motion by the employer to exclude evidence of events, which occurred prior to Minutes of Settlement dated June 22, 1998, signed pursuant to earlier grievances. The motion was argued on January 26, 2005 and the board received additional submissions from the parties on March 1, 2005, March 4, 2005 and March 15, 2005.
This decision also addresses a motion by the union seeking that the employer be ordered to comply with an interim relief order made October 6, 2004, which was argued on May 13, 2005.
THE EMPLOYER’S MOTION TO EXCLUDE EVIDENCE
The union seeks to adduce evidence of the grievor’s employment history when he worked at the L’Orignal Jail. This includes evidence that the grievor was absent from June 1996 to January 1997 and from May 1997 to November 28, 1997 and why the absences occurred. The essence of the proposed evidence is that the grievor experienced harassment and discrimination because of his sexual orientation while working at L’Orignal Jail, became ill and was thus absent from work in the two periods of time noted above.
Counsel for the union, Gavin Leeb, argued that the proposed evidence has two purposes in the union’s case. The first addresses the impact on the grievor: the theory of the union’s case is that the alleged harassment at OCDC, the subject matter of the current case, has had a greater impact on the grievor because he suffered earlier harassment and discrimination at L’Orignal Jail. The second purpose of the proposed evidence relates to remedial entitlements that the union will argue at the end of the day, that is, that the grievor has a “thin skull” and therefore should receive greater compensation for the discrimination and harassment that he suffered at OCDC.
Mr. Leeb stated that he did not seek to introduce this evidence for the purposes of proving the merits of the grievances before the board. Thus the proposed evidence is tendered only to provide proof of the extent of the harm suffered by the grievor, and as a basis for the argument for remedial entitlements.
THE EMPLOYER’S SUBMISSION
Counsel for the employer, Ferina Murji, strongly opposes the introduction of this evidence for essentially two reasons, that it is excluded under Minutes of Settlement and that it is too old. Counsel argued that the evidence proposed by the union could not be used for any purpose in the present proceeding because an earlier grievance, complaining about events at L’Orignal Jail, was settled by Minutes of Settlement on June 22, 1998. Clause 2 of the Minutes of Settlement provides as follows:
The parties agree that these Minutes of Settlement and any consideration are deemed to be no admission of liability whatsoever, on the part of the Crown, nor will these Minutes and/or the underlying facts ever be referred to in any other administrative, quasi-judicial or legal proceeding.
Thus counsel argued that the parties had agreed to settle the grievor’s complaints while at L’Orignal Jail by entering into Minutes of Settlement that expressly preclude the grievor from raising these allegations in any future proceeding. Counsel for the employer took the position that to allow this evidence to be introduced now would be a clear contravention of the Minutes.
Ms. Murji argued that the Minutes of Settlement were clear and unambiguous, that the underlying allegations for the December 3, 1997 grievance and any other grievances outstanding at the time of the Minutes of Settlement could not be used in a subsequent arbitration hearing. She argued that there were strong labour relations reasons not to allow the evidence. If the Minutes of Settlement were not honoured, there would be a strong disincentive for the employer ever to settle again. Counsel also noted that the grievor received consideration under these Minutes by way of a payment of money and a transfer to OCDC, thus it would go against every contract principle to allow this evidence to be presented now when there was a clear promise never to rely on it in the future.
Counsel argued in addition that the employer should not be required to defend allegations that are between nine and seven years old. Relying particularly on the Hotel Dieu Grace Hospital case, infra, counsel argued that arbitrators must strike a fair balance between the concerns of both parties when deciding how many years of evidence can be tendered in a case, which alleges a pattern of discrimination over a number of years.
Counsel argued in sum that it would not be equitable to require the Ministry to defend allegations that occurred so many years ago and that were also the subject matter of Minutes of Settlement. Counsel concluded that the balance favoured the employer here and that the evidence should not be admitted.
Counsel for the employer relied on the following cases in support of her submission: Hotel Dieu Grace Hospital and Ontario Nurses’ Association (1997) 1997 CanLII 25061 (ON LA), 62 L.A.C. (4th) 164 (Picher); OPSEU (Dale et al) and Ministry of Health and Long Term Care (2002) GSB 2000-1314 (Abramsky); OPSEU (Waraich) and Ministry of Labour (2004) GSB 2003-0187 (Watters); OPSEU (Patterson) and Ministry of Public Safety and Security (2003) GSB 2001-0925 (Leighton).
THE UNION’S SUBMISSION
Counsel for the union argued that the evidence proposed was not being adduced to support the merits of the current grievances. The reason for the evidence was to show why the grievor’s mental state has been so adversely affected by the alleged discrimination and harassment at OCDC. Mr. Leeb noted that a considerable part of a medical expert’s evidence (Dr. Koch) was based on the history given to her by the grievor. This history included events that occurred while the grievor was at L’Orignal Jail. It was Dr. Koch’s opinion that the harassment at OCDC had had a profound effect on the grievor. It was her opinion that with each instance of discrimination and harassment the grievor became more ill. Mr. Leeb also argued that the evidence of the events at L’Orignal were necessary to provide the foundation for Dr. Koch’s expert opinion, citing R. v. Abbey (1982) 1982 CanLII 25 (SCC), 2 S.C.R. 24 at p.14.
Counsel for the union noted that the Minutes of Settlement referred to three outstanding grievances including a Hammond-Mier grievance, an LTIP grievance, and a grievance which attacked the method of investigating the grievor’s allegations into harassment and discrimination suffered at L’Orignal Jail. Thus, counsel argued, the third grievance was merely about the adequacy of a WDHP investigation report. He noted that there was no desire to re-litigate the adequacy of this report. The union simply wanted to submit the report for its face value.
In sum, counsel for the union noted that this is a case of first instance before the board and that the cases submitted by the employer are distinguishable because the disputed evidence was being tendered to prove the merits in those cases. The evidence Mr. Leeb proposes to adduce goes to the harm suffered by the grievor and remedy. He argued that the evidence was relevant, and that there was no prejudice to the employer to allow the evidence in.
Counsel for the union relied on the following cases in support of his submission: UFCW and The Comstock Funeral Home Ltd. (1981) OLRB Rep. Dec.1755; Upholsterers’ International Union of North America (AFLCIO) and The Craftsline Industries Ltd. (1977) OLRB Rep. April 246; IWA Canada Local 1-1000 and The Madawaska Hardwood Flooring Inc. (1995) OLRB 2761; ATU Local 113 v. Toronto Transit Commission (1993) 1993 CanLII 16721 (ON LA), 34 L.A.C. (4th) 85 (Shime); OPSEU (Mirosolin) and Ministry of the Attorney General (1991) GSB 1990-2054 (Verity); OPSEU (Maghsoudi) and Ministry of Transportation (1999) GSB 0988/97 (Leighton).
EMPLOYER’S REPLY SUBMISSION
In reply, counsel for the employer argued that the union is proposing to introduce evidence that the grievor was harassed and discriminated at L’Orignal Jail, became ill and, therefore, was absent from work during the two periods identified by the union. However, Ms. Murji noted this is exactly the allegation that was addressed in the grievance of August 28, 1997, and which was settled by way of Minutes of Settlement where the employer admitted no liability for the allegations. Thus, she argued, there is nothing to establish that the grievor’s absences in 1996 and 1997 were directly attributable to the Ministry. Had the grievance proceeded to arbitration the issue of whether the grievor’s claims of discrimination and harassment were legitimate would have been adjudicated. However, there has been no determination on those issues since they were resolved by Minutes of Settlement. Thus, counsel argued, it would not be appropriate or fair to allow this evidence to be introduced now.
Counsel also argued against the union’s proposal that it must call evidence on the events that happened in L’Orignal Jail to prove the factual basis on which Dr. Koch relied on in making her opinion. Counsel noted the evidence that Dr. Koch provided regarding the grievor’s history at L’Orignal Jail is not directly at issue in the current proceeding. She noted further that Dr. Koch’s evidence would have to be assessed in light of the facts that she relied upon in coming to her conclusions. Counsel summarized the Ministry’s position as follows:
The grievor’s self-serving testimony about what he allegedly suffered while at L’Orignal Jail will not, in and of themselves, prove the allegations.
To allow the grievor to provide testimony about L’Orignal Jail will require the Ministry to respond to those allegations. Aside from the fact that the parties entered into an agreement that was intended to guard against having to litigate the complaints, requiring the Ministry to defend these allegations now, almost eight years later, is severely prejudicial.
There is no admissible evidence that relates to the allegations that stem from the grievor’s time at L’Orignal Jail because those matters have been fully and finally settled via Memorandum of Settlement and because those facts are not at issue in the present matter.
In concluding, counsel for the employer argued that the union should not be permitted to introduce evidence of events between the periods of June 1996 to November 1998.
DECISION – EMPLOYER’S MOTION TO EXCLUDE EVIDENCE
The central issue to be decided is whether the evidence of events, which occurred at L’Orignal, is admissible in this hearing. The employer takes the position that the evidence is not admissible because in Minutes of Settlement the grievor bound himself not to raise this evidence in any new proceeding. Also, the evidence is too old and it would be prejudicial to the employer to have to refute it so many years after the alleged events. The union’s position is that it is admissible, not to prove the case on the merits, but for a limited purpose going to remedy. Counsel for the union also argued that the Minutes related to a complaint about how a WDHP investigation was conducted, not the alleged discrimination and harassment.
The first issue to decide is whether or not the Minutes of Settlement, signed June 22, 1998, refer to the grievor’s complaints about events at L’Orignal. Having carefully reviewed the documents provided to me, I have decided that it does relate to those allegations. In the Minutes of Settlement the union agreed to withdraw all his grievances pending as of the 22nd day of June 1998. One of the grievances pending at that time was filed December 8, 1997. That grievance stated: “I grieve that the employer is in violation of specifically, but not exclusively, Article 3 and Article 22.10 of the collective agreement.” The settlement desired in that grievance stated:
That I be significantly compensated for all pain and suffering and punitive damages done as a result of the harassment and discrimination, for past, present and future, that has caused mental scarring.
The Stage 2 response to this grievance indicates that the grievor was not happy with the way a WDHP investigation was conducted. Although the grievor and his representative may have been critical of the WDHP process, it is clear that the grievance, in essence, alleges that he was discriminated and harassed at L’Orignal. This is one of the grievances, which was settled by the Minutes dated June 22, 1998.
Having decided that the alleged harassment and discrimination at L’Orignal was the subject matter of the Minutes of Settlement, the next issue is whether the evidence should nevertheless be admitted. Counsel for the union stated that it is being introduced for a limited purpose, not to prove the merits of the case before me but to support certain remedial claims and, therefore, the evidence, which occurred between 1996 and 1997, should be permitted. In deciding cases where the scope of the evidence is an issue, this board has referred to Hotel Dieu Grace Hospital, supra, as helpful. See Dale et al., Waraich and Patterson (supra). In Hotel Dieu Grace Hospital, Arbitrator Picher said when considering the scope of evidence to be permitted alleging racial discrimination “that it is important in this case to strike a fair balance between the concerns of both parties.”
Arbitrators must balance the union’s need to establish a pattern of harassment over a number of years against the employer’s need to be able to refute allegations that may have occurred many years before the grievance. Arbitrators must also balance the right to a full and fair hearing with the reality that an over-long, and arduous hearing may not serve the parties or procedural fairness.
In Dale et al. Vice-Chair Abramsky decided to exclude evidence that related to earlier settled grievances. In balancing the interests of the parties, she considered both the age of the allegations that were being put forward and the fact that the parties had settled these earlier grievances by way of Minutes of Settlement. Vice-Chair Abramsky also noted that this board has consistently recognized the importance of giving effect to final settlements between the parties. She held that: “Once a matter is settled, the expectation is that the matter is resolved and will not reappear in some different guise”.
In Waraich, Vice-Chair Watters relied on the reasoning in Dale et al when he decided to exclude evidence that related to grievances settled in earlier Minutes. He stated further that he reached his decision “in large part, to ensure and promote the sanctity of final settlements.” In excluding the evidence, Vice-Chair Watters made it clear that it was not evidence as of the date of the Minutes of Settlement, but rather it was the evidence alleged as the basis of the grievance. The evidence after the grievance was filed was admissible. I agree that if evidence is to be excluded because the events have been the subject of a settlement, then it is the date of the grievance which provides the bright line, not the settlement date.
Union counsel has argued that Dale et al and Waraich are distinguishable because in those cases the evidence was being tendered to prove the merits of the later grievance. In contrast, the union wishes to adduce the evidence for a limited purpose, to support the union’s theory that the grievor has suffered more because of the alleged harassment and discrimination at OCDC, because of the previous harassment and discrimination at L’Orignal. The trouble with this is that the Ministry was not willing to admit to the allegations when it signed the Minutes of Settlement on June 22, 1998 and it is not willing to admit them now. In fact, the Minutes expressly deny any admission of liability. Moreover, the terms of the Minutes go beyond the usual practice of the parties by including very strong language that no underling facts of the grievances will ever be “referred to in any other administrative, quasi-judicial or legal proceeding.”
Thus, having carefully considered this matter I have come to the conclusion that it would be inequitable and prejudicial to the employer in this case to defend the allegations of discrimination and harassment with regard to L’Orignal Jail so long after they have occurred, but primarily because they were the subject of Minutes of Settlement. The parties to Minutes of Settlement must be able to rely on the terms, which they have negotiated in good faith. Further, it would not be fair to require an employer to preserve evidence indefinitely to defend itself against the possibility of having to refute allegations, which were the subject of Minutes of Settlement. Finally, I note that Dr. Koch’s evidence included information from the grievor as to his experience at L’Orignal, which she relied on in forming her opinion, and which was properly admitted for that purpose and not for the truth of its contents.
The employer’s motion is hereby granted and evidence of events at L’Orignal before December 8, 1997, the date of the grievance, is not admissible.
THE UNION’S MOTION FOR A COMPLIANCE ORDER
On October 6, 2004 the union’s motion for an interim relief order was granted. It provided in part:
The employer shall make its best efforts to accommodate the grievor in a suitable position, consistent with the medical opinions provided, within 30 days of this order. If the employer is unable to place the grievor in a suitable position within 30 days, the grievor shall be placed back on the payroll, and the employer shall continue to make its best efforts to accommodate the grievor. This interim order shall expire when the decision on the merits is issued.
The employer was unable to find a suitable position within the 30 days and, therefore, placed the grievor back on the payroll. On January 26, 2005 a letter was sent to Mr. Ranger from the Human Resources Consultant for the Ministry, notifying him that a temporary assignment had been identified in the Ottawa Centre Probation and Parole Office. There was a meeting with the grievor on February 14, 2005 to discuss the position and at that time the Ministry requested a medical note that approved that the grievor could return to work. The grievor’s doctor responded by letter March 17, 2005 confirming that the grievor could return to work immediately and recommending that he do so on a gradual basis. He began working Tuesdays and Thursdays for the first three weeks. He was to continue through the working hardening three days for the next three weeks, four days for the next three weeks, and then full-time thereafter.
The Ministry responded to the grievor on March 21, 2005 confirming receipt of the medical information and confirming other details such as the location of the employment and the hours of work. Thus the grievor began work in the Ottawa Centre Probation and Parole Office in the week of March 28, 2005. Although the grievor was working in the capacity of administrative support, he was to remain being paid as a correctional officer. On April 14, 2005, two weeks after returning to work, in a meeting with the Area Manager, the grievor was informed that he would be paid for the days that he worked only. This was confirmed in writing on April 15, 2005 in a letter to the grievor signed by the Area Manager. The reduction in pay without notice to the grievor meant he was forced to borrow money from friends to cover his normal living expenses.
The first thing the union is seeking is a compliance order so that the grievor receives full pay for the period of work hardening. Mr. Leeb argued that by not paying the grievor full-time pay the employer had breached the order of October 6, 2004. In the alternative, the union sought an interim relief order that the grievor be paid for 40 hours a week at the Correctional Officer rate for the same period of time of the work hardening period.
The union also seeks an order requiring that the Ministry to give 30 days notice of any contemplated change in the grievor’s employment and/or compensation. The union reserved its right to seek aggravated or punitive damages at the end of the case based on how the grievor had been treated during this work hardening period.
Mr. Leeb argued in support of the motion that the October 6 order was intended to keep the grievor at an appropriate pay rate in the interim while the case was being heard on the merits. Further the order was clear that the Ministry was required to accommodate the grievor into a suitable position and if not within the 30 days then put him back on the payroll. The order was designed to ensure that his dignity and health were preserved. Counsel stated that it was virtually a slap across the head to the grievor who had been working for a number of weeks before he was told that he would only be paid for the actual days worked. Counsel argued in sum that the orders requested were well within the power of the board and particularly important because of the lack of good faith that had been shown by the employer in dealing with the grievor. Counsel relied on the cases cited to the board for the previous interim relief application.
Counsel for the employer argued that essentially the union was asking that the grievor be paid when he was not working during the work hardening period. The employer had maintained the grievor on full pay between the time that a position was identified until he actually began work. Ms. Murji said that the grievor was paid in the way that every other employee is paid when they return to work on a work hardening scheme. There was no obligation to pay the grievor for the days not worked. She noted that some employees use vacation and/or sick credits to make up the loss. With regard to the lack of notice, counsel took the position that it was not necessary when it was obvious that he would be paid only for the work he actually did once returning to work. Toward the end of her submission, Ms. Murji stated that the grievor had 22 days of vacation in his bank, which he could have used to supplement his pay. The grievor would have also been entitled to sick time within several weeks of returning to work. Therefore, he also could have used sick time to supplement the lost income.
With regard to the union’s second, alternate argument, counsel submitted that it would not be an appropriate interim order and that there was no jurisdiction to make such an order. Further, while the grievor had made allegations of harassment and discrimination, nothing as of yet had been proven. She noted that the employer has a duty to accommodate and that this duty had been satisfied. With regard to the third request of the union that an order be issued requiring 30 days advance notice of any change to the employee’s compensation and/or employment, counsel argued that the board had no authority to thwart the employer’s responsibility to direct and manage the workplace.
Counsel for the employer relied on the following cases in support of her submission: Versa Services Ltd. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees Union, Local 647 (1994) 1994 CanLII 18586 (ON LA), 39 L.A.C. (4th) 196 (Brown); ONA v. Orillia Soldiers Memorial Hospital (1999) 1999 CanLII 3687 (ON CA), 169 D.L.R. (4th) 489 (Ont. CA); OPSEU (Dupuis) and Ministry of Northern Development and Mines (2001) GSB 0409/00 (Dissanayake); Haydaway Motor Inn and British Columbia Government and Service Employees’ Union (1995) 1995 CanLII 18395 (BC LA), 51 L.A.C. (4th) 351 (Lang); Royal Crest Life Care Group Inc. and CUPE, Local 1712 (1993) 1993 CanLII 16720 (ON LA), 38 L.A.C. (4th) 250 (Carrier); Stelco Inc., Hilton Works and United Steelworkers of America, Local 1005 (1995) unreported case (Gray).
DECISION - UNION’S MOTION FOR COMPLIANCE ORDER
Having carefully considered the submissions of the parties I have decided that the employer has not breached the board’s order of October 6, 2004. The order required the employer to make its best efforts to accommodate the grievor in a suitable position within 30 days of the order. If the employer was not able to find the grievor a suitable position within that time frame, it was required to put him back on the payroll and continue to make its best efforts to accommodate the grievor. In making that order, the board noted:
In effect what the union has asked for is interim accommodation, and there is never an absolute guarantee that accommodation will be achieved. The employer’s duty is to accommodate to the point of undue hardship. Therefore the order here has to recognize that obligation and its limits. The grievor is also obliged to cooperate in the accommodation process.
As part of that accommodation process the employer was able to identify a temporary assignment for the grievor at an OAG 8 level. Since the grievor had been off work for some time, his doctor recommended a work hardening program and so the grievor returned to work on a gradual basis until he reached full-time hours. I accept the submission of the employer’s counsel that the grievor was treated as any other employee returning to work after a sick leave. He was, therefore, paid for the work he did.
Counsel for the employer submitted that it should have been obvious to the grievor that he would only be paid for the actual work he did once returning to the Ministry. It certainly was not obvious to the grievor and he should have been informed before he returned to work. Although I am not satisfied that this amounts to a breach of the interim relief order, it was not handled well. Better communication at the beginning of the process of returning the grievor to work would have prevented the grievor’s discomfort and this emergency motion. He would have made a claim for the lost wages at the conclusion of the care.
Counsel for the employer remarked towards the end of her submission that the grievor could have used his vacation days to make up the lost wages during the work hardening period. Also, within several weeks he would also have earned sick credits, which he could have used. It is highly unfortunate that the grievor was not told this when he was first being advised of the temporary assignment. It is also highly unfortunate that the grievor didn’t think to ask when he was informed on April 14 that he was only going to be paid for the days he worked. Union counsel stated that had he known this was a way of the grievor maintaining his wages he would not have brought this motion.
Thus in conclusion I find that the employer has not breached the October 6, 2004 order, and it would not be appropriate to issue another interim relief order for the lost wages in the circumstances. I agree with counsel for the employer that in this case any such order would be premature and is better addressed in closing argument. I also note, for the record, while counsel for the employer argued against the union’s request for an order to require the employer to give the grievor 30 days notice of any new position or any change in compensation, counsel stated that the employer will give such notice to the grievor. Employer counsel also acknowledged that the order of October 6, 2004 remains in effect until a decision on the merits of this case is rendered and that the employer has an ongoing duty to find a suitable position for the grievor if possible.
For the reasons noted above, the union’s motion is hereby denied.
Dated at Toronto this 29th day of July, 2005.