Re The Crown in right of Ontario (Ministry of the Attorney General) and Ontario Public Service Employees Union (Clarke)
[Indexed as: Ontario (Ministry of the Attorney General) and O.P.S.E.U. (Clarke) (Re)]
File No. 2004-3263 Ontario Crown Employees Grievance Settlement Board R.H. Abramsky
Heard: January 17, 19 and 25, 2005 Decision rendered: January 26, 2005
INTERIM AWARD concerning motion for interim relief. Motion denied.
G. Leeb, for the union. K Burke, for the employer.
INTERIM AWARD
The Union has moved for interim relief in regard to the Employer's decision not to renew its temporary transfer agreement with the grievor, Ms. Florence Clarke, under which she worked as a classified court reporter in the Milton courthouse, rather than at the Dufferin/Finch courthouse location, her home position. Ms. Clarke filed a grievance protesting the Employer's decision on December 20, 2004. The Union requests that the Board issue an order requiring the Employer to rescind the termination of that agreement, pending the hearing of her grievance contesting the Employer's decision.
The parties agree that I have jurisdiction to decide this motion for interim relief. There was no agreement regarding jurisdiction of the underlying grievance, and the Employer has specifically stated that it is not waiving any of the procedural requirements under the collective agreement.
Background
In May 2001, Ms. Clarke, along with two other classified court reporters, filed a grievance asserting that "we have been forced to perform authorized duties on overtime hours with no overtime pay, contrary to....the collective agreement." Thereafter, on August 20, 2003, the Union filed a policy grievance alleging that "[t]he work associated with the preparation and production of typed transcripts and certifying them as accurate is bargaining unit work to which the collective agreement applies."
The first day of hearing was on July 10, 2003 and since then there have been many hearing dates. Four awards have been issued due to various motions filed by the parties, and there is substantial evidence left to hear. Ms. Clarke has testified a number of times in these proceedings, and her testimony was to continue on December 17, 2004. On that date, however, she was unable to testify because on the preceding day, December 16, 2004, she was advised by her manager, Ms. Bev Thomson, that the Ministry would be terminating her agreement to work in the Milton court house. Effective January 3, 2005, she was to report to work at the Dufferin/Finch courthouse. On December 17, 2004, the parties agreed to have the Union's motion for interim relief heard on January 17, 2004. The hearing then continued on the evenings of January 19 and January 25, 2005.
Facts
Ms. Clarke is a classified court reporter with the Ministry of the Attorney General, and has worked in that position for more than twenty years. Her home position was at 80 The East Mall court house in Etobicoke, and she worked there approximately nine years.
In 2001, due to mold problems at 80 The East Mall location, the Etobicoke court was temporarily relocated to the Finch/Dufferin courthouse, at 2201 Finch Avenue. This relocation was very problematic for Ms. Clarke due to the location of that court in relation to her home in Streetsville, Ontario. She explained that she was a "nervous driver", having obtained her driver's license at the age of 41, and she was afraid to drive on highways. The traffic, the trucks, cars weaving between lanes on Highway 401 was very frightening to her. In addition, she had inquired about public transit from the TTC and was advised that the commute would take approximately 2 1/2 hours each way, which she felt was prohibitive. She discussed her concerns with her supervisor Bobby Kistow and her manager, Rosa Martelli, both of whom were sympathetic. On May 15, 2001, Ms. Clarke requested a temporary transfer to the Milton court. That letter reads, in pertinent part, as follows:
Two weeks ago we were informed that the lease had been signed to accommodate the East Mall Courthouse at 2201 Finch Ave. for a two year period. This news has caused me great stress.
I live in Streetsville and have been commuting back and forth to 80 the East Mall both by Go train and car for the last nine years. To travel every day to this new location at Finch and Weston from where I live would cause extreme duress that I believe would eventually take its toll on my mental well-being. I learned to drive late in life and do not take the highways. My options for routes are Eglinton and Steeles Avenue. I have done Steeles to Finch and Dufferin, and it has taken me over an hour and a half one way, and that is not in rush hour traffic. To get to The East Mall takes me between 30 to 35 minutes by car or Go train. To travel to the new location by public transit from Streetsville would take at least three hours one way.
I have already verbalized my request to be transferred to Milton during this temporary period. Your response has been very positive and I trust that after twenty-two years service with the Ministry that this accommodation will be realized.
On June 26, 2001, Ms. Clarke's request was approved. Manager of Court Operations for the Milton court, Ms. Bev Thomson, testified that the temporary transfer was acceptable to Milton provided that it was "cost neutral" to the Milton courthouse. She explained that the Milton court did not have an operational need for a full-time court reporter, but she was willing to assist by having Ms. Clarke work in Milton while the mold issue was being addressed, provided there was no additional cost for the hours Ms. Clarke was not actually in court. The East Mall courthouse agreed to pay for those hours.
Ms. Thomson stated that she had not seen Ms. Clarke's May 15, 2001 letter and was not aware that the request had been made based on Ms. Clarke's fear of driving on highways. It was her understanding, from Rosa Martelli, the Manager of Court Operations for 80 The East Mall courthouse, that the issue was one of distance and convenience. The Ministry and Ms. Clarke entered into a "temporary transfer agreement", dated September 20, 2001. That agreement states as follows:
- This document constitutes a temporary transfer agreement of Florence Clarke to the Milton Court office, in the capacity of Court Reporter, Ministry of the Attorney General, Court Services Division.
- The term of this temporary assignment will be for 5 1/2 months, effective, September 24th, 2001. The assignment may be extended as operationally required, at the discretion of the employer.
- During the term of assignment Florence Clarke's salary and classification (Court Reporter 11) will remain the same.
- For the duration of the assignment Florence Clarke will be paid by Milton court. (Etobicoke court will pay the difference of classified vs. unclassified).
- The transfer may be terminated by any of the parties upon submission of two (2) weeks written notice.
- Florence Clarke will report directly to Michele Sloski, Supervisor of court Support for program direction and performance management.
- Florence Clarke's home base will be Milton court but may be reassigned on an emergency basis to Oakville or Burlington court.
- Upon termination of this assignment Florence Clarke will be reassigned duties within the Courts Services Division, Toronto Region.
- Upon the relocation of the Etobicoke Court back to the 80 The East Mall site, or an alternate permanent location, Ms. Clarke will return to her home position of Court Reporter 2, Ministry of the Attorney General, Court Services Division, Toronto Region (Etobicoke).
In later documents, the "temporary transfer agreement" was referred to as a "secondment agreement" and it was continued, through various extensions, through January 1, 2005. It was the grievor's understanding that her relocation to Milton would last until the Etobicoke courthouse returned to Etobicoke. She testified that she was unaware that the Ministry, on December 21, 2001, announced that the Etobicoke court would be permanently relocated to the Finch/Dufferin courthouse, effective April 2, 2002. Mr. Bobby Kistow, then Supervisor at 80 The East Mall courthouse, testified that he faxed a copy of this announcement to Ms. Clarke, at the Milton courthouse, but he did not know if she had actually received it. Despite the permanent relocation of the East Mall courthouse, the temporary transfer of Ms. Clarke to the Milton courthouse continued. As noted, Ms. Clarke was unaware of the permanent relocation and, apparently, so was Ms. Thomson. Ms. Thomson testified that she was unaware that the location issue had been decided until she made inquiries into the specific terms of the transfer agreement in the late Fall of 2004. The Toronto region had not advised her of this.
Over the summer of 2004, a number of actions were taken by Manager Thomson in regard to the court reporters and court support staff generally, and to Ms. Clarke specifically, that Ms. Clarke felt were harassment because of her grievance regarding the typing of transcripts. On July 14, 2004, she filed a grievance which alleges a breach of Article 2.1 (Management Rights), 3.2 (Discrimination for union activity) and Article 60.1 (Health and Safety). It was accompanied by a four-page attachment, outlining what, in Ms. Clarke's view, had occurred. The letter lists a number of specific actions by Ms. Thomson and concludes that the "no typing directive and the escalating harassment imposed by Ms. Thomson which I believe to be directly related to my union activities and the arbitration that I have been involved with for the past three years, has now overwhelmed me." It further states that "[t]he continuous and escalating harassing behavior exhibited by Ms. Thomas has put such stress on me that coming to work is very difficult." In fact, Ms. Clarke took a week off due to stress in late June of 2004.
Also in July, 2004, Ms. Clarke wrote to Justice Durno, Administrative Justice for the Superior Courts, that she was "no longer able to prepare and certify my transcripts" because of the policy of the Ministry prohibiting court reporters from typing transcripts during regular work hours. She stated, in part:
Regretfully, being required to type all my transcripts after my regular working day has taken its toll on my physical and mental well-being. After fourteen years, I am no longer able to continue forfeiting my weekends, vacations and a good night's sleep for the sake of preparing transcripts in a timely and accurate manner.
This letter was copied to her manager, Bev Thomson, and a number of other individuals.
As a result of this letter indicating that she was "no longer able to prepare and certify my transcripts", management began to transfer the typing of Ms. Clarke's transcripts to other court reporters. Ms. Clarke would take the record, but another court reporter would be assigned to type the transcript.
On September 15, 2004, a meeting was held as a result of this letter between Ms. Clarke and Ms. Thomson, and a union steward. Ms. Clarke took what was said as a threat to cancel what she referred to as her "transportation accommodation" to the Milton court house. In Ms. Clarke's view, this was the third such threat Ms. Thomson had made and she felt that Ms. Thomson was using these threats as "leverage" against her, given the importance to her of remaining in Milton. From the Employer's perspective, the meeting was to deal with Ms. Clarke's statement that she could no longer prepare transcripts and the impact that was having on her ability to continue in Milton. According to Ms. Thomson, the judiciary had raised concerns in September about Ms. Clarke's ability to prepare overnight transcripts in light of her July letter, and the fact that a number of jury and criminal trials were anticipated in the Fall which would require transcripts on an ongoing basis. On this basis, Ms. Thomson felt that she could no longer continue to keep Ms. Clarke in Milton and advised her of that. During their discussions, Ms. Clarke stated that she could, from time to time, do overnight transcripts, and Ms. Thomson advised her this was new information, compared to her letter of July, and that the Ministry would need medical documentation outlining what she could and could not do. Although Ms. Clarke did not request a medical accommodation, Ms. Thomson took her letter and statement to be, in effect, a request for accommodation. In Ms. Clarke's view, she was not requesting a medical accommodation. She just wanted to be able to type transcripts during the regular work day. As a result of this meeting, no changes were made to Ms. Clarke's assignment, and Ms. Thomson was to prepare a package for the grievor to take to her doctor.
On November 6, 2004, Ms. Thomson provided the medical forms to Ms. Clarke. Ms. Clarke testified that she did not review them and requested, through an e-mail on November 8, 2004, to know why she had to do so and that she would need Ms. Thomson to write to her doctor that she was not allowed to prepare transcripts during regular work hours and that they must be typed after work. The medical package provided to Ms. Clarke for her doctor outlines her duties as a court reporter and specifically mentions that those duties include "provid[ing] certified transcripts of court proceedings on request (note- transcripts are prepared on incumbent's own time)." Ms. Clarke testified that because Ms. Thomson did not respond to this request, she did not have the medical forms completed. On November 29, 2004, Ms. Thomson wrote to Ms. Clarke, again requesting that the medical forms be completed and outlining the process of accommodation. In response, Ms. Clarke requested that a meeting be held.
On December 3, 2004, a meeting took place, at Ms. Clarke's request, to discuss a number of issues, including the accommodation process. Again, there is a dispute regarding what was said. Ms. Clarke and the Local Union President took what had been said as assurance that Ms. Clarke would continue to work in Milton, that there was plenty of work for her there in the New Year. The employer's evidence was that no assurance regarding the continuation of her temporary transfer agreement was provided. The evidence showed that there was significant discussion about the no-typing policy during the meeting. At the conclusion of the meeting, Human Resources Consultant Bill Yaeden, who attended the meeting through a conference call, advised that he would consider what had been said and get back to the parties. As a result, according to Ms. Thomson, the request for medical information was essentially put "on hold."
Then, on December 16, 2004, consistent with paragraph #6 of the original temporary transfer agreement, the Ministry provided two week's written notice that the transfer would be terminated. Ms. Thomson testified that a number of factors led to that decision. She explained that Ms. Clarke's inability to type transcripts was creating a number of operational difficulties. Given the court's workload and the judge's preferences, it was anticipated that she would need to be assigned to trials where it was more likely that transcripts would be ordered, yet they would have to be assigned to someone else, at a time when the overall workload of the court reporters and the Milton courts in general was increasing. A number of court reporters had complained about being unable to keep up with their own transcripts as well as Ms. Clarke's. Although court reporters from other courts could be assigned Ms. Clarke's transcripts, Ms. Thomson was concerned about creating delays. Conversely, if she were transferred out of Superior Court to the Ontario Courts, there were concerns that her hours in court would be insufficient and that the transfer arrangement would no longer be cost neutral.
Ms. Thomson further testified that because Ms. Clarke had stated, on a number of occasions, that she had been transferred to Milton on an "accommodation", which was not Ms. Thomson's understanding, she decided to ask Human Resources to review the terms of the original agreement. Human Resources advised her that the transfer was not a medical accommodation due to a disability and that the initial reason for the transfer — the temporary relocation of the East Mall courthouse — had been decided some time ago. She testified that since the contract was "naturally expiring" on January 1, 2005, and the original basis for it — dealing with a temporary relocation — had been determined, she decided not to renew the agreement.
On December 20, 2004, Ms. Clarke filed a grievance protesting the Ministry's action. The grievance alleges that "the Ministry's decision to terminate my assignment at Milton is contrary to the collective agreement and the Ontario Labour Relations Act." Essentially, Ms. Clarke alleges that Ms. Thomson terminated the agreement in retaliation for her pursuit of the grievance in the Hunt et al. case [summarized Re Ontario (Attorney General) and O.P.S.E. U. (Hunt) (2004), 78 C.L.A.S. 61 (Abramsky)], and her complaints about the no-typing policy. It is clear that Ms. Clarke feels that Ms. Thomson, and the Ministry have punished her, for speaking out forcefully on this issue.
On December 20, 2004, Ms. Clarke sent an e-mail to Ms. Thomson regarding the decision to terminate her transfer to Milton and the manner in which it was done. The content is highly emotional and reveals Ms. Clarke's negative views about Ms. Thomson. The e-mail states that during the meeting on December 16, 2004, Ms. Clarke told Ms. Thomson that "it was because of the way you treated people that you were so disrespected in the building." It complains that "you did not even have the courtesy to wait until the end of the day to give me what you knew would be very disturbing news..." It asserts that Ms. Thomson "instigated" — with the Ministry's encouragement — a "no-typing" policy in Milton "that did not exist in this jurisdiction until I arrived rather than allow me to type during my regular working day."
Ms. Clarke testified about the harm that would ensue if interim relief were not granted. She explained that travelling to the Finch courthouse would be very difficult and stressful for her, for the same reasons she had requested a temporary transfer to Milton in 2001. The drive, given her fears regarding driving, precluded driving on Highway 401, and taking the side streets would take a substantial amount of time as cause stress. In addition, on a personal level, she was concerned about the extra time required to commute, which would significantly impact her family life. She explained that she was used to be home by 6:00 p.m. and that would become impossible if she had to commute to the Finch courthouse. She explained that working at Dufferin/Finch was not what she "had signed on for" when she was hired by the Ministry.
At the hearing, the Union also presented a doctor's letter dated December 27, 2004, from Ms. Clarke's family doctor, written at the request of the grievor's counsel. The letter states that "Ms. Clarke does suffer from a psychological disorder, which she told me about at this most recent appointment of December 21st. She has quite a fear or phobia of driving, in particular on highways." He stated: "For her to drive to Finch and Weston from her Mississauga home would have been overly traumatic for her, as she cannot drive on highways due to panic and anxiety disorder brought on by highway driving." He noted that "public transit to this location would have taken about two hours so this was obviously not feasible." He also noted "[t]his condition may be somewhat amenable to treatment, however we have not discussed this prior to her last appointment." He stated that there are specialists who deal with these disorders, "but the treatment is not always successful and can be lengthy." It was the doctor's opinion that because she must limit herself to smaller roads, "I feel that her working at the Finch and Weston Road location is not possible." In his opinion, "due to this anxiety disorder, she does require an accommodation in the form of a continuation of her assignment to the Milton Court House. The only other viable option may be working in a location closer than the Finch location such as Brampton. However, Milton appears to be an ideal arrangement for her given her medical disability."
The Employer strongly objected to the introduction of this letter without the doctor being called to testify and be subject to cross-examination. At the hearing, the letter was identified in the record, but not admitted into evidence, with the parties to make submissions on the issue in closing argument.
Manager Thomson testified regarding the impact of the Board's ordering Ms. Clarke to remain in Milton, pending a hearing on the merits. They included a number of operational concerns related to Ms. Clarke's inability to type transcripts after hours, including concerns about being unable to continue to assign her to motions court where few transcripts are required, concerns about finding others who could type her transcripts, concerns about that situation impacting a trial. She also testified about the difficulties created by Ms. Clarke's allegations of harassment on her ability to manage. She explained that she felt "immobilized" and "paralyzed" by Ms. Clarke's accusations and the increasing gap between what she intended and Ms. Clarke's interpretation of her actions. She stated that their relationship had deteriorated and that their meetings had become increasingly hostile and "toxic", and that after each meeting there were e-mails from Ms. Clarke, copied widely in the Ministry, accusing her of harassment. She stated that the situation was also negatively impacting her relationship with the Local Union President. After the meeting on December 16, 2004, as Ms. Clarke and the Local Union President left her office, her door was slammed shut and the Local Union President said "what a bitch." Ms. Thomson also testified that it was her view that other employees were very aware of the conflict between Ms. Thomson and Ms. Clarke and were uncomfortable with that situation, including one person who asked that Ms. Clarke not return to Milton.
Decision
1. Jurisdiction
The Employer asserts that the Board has no jurisdiction to order interim relief regarding its decision not to renew Ms. Clarke's secondment agreement. It asserts that determinations of that nature are vested exclusively in management and do not arise from any "right" in the collective agreement, over which the GSB has jurisdiction.
I conclude that the Board does have jurisdiction to order interim relief in this matter. The Board has adopted a consistent body of jurisprudence in this area which broadly interprets the power "to make interim orders concerning procedural matters" as set forth in Section 48(12)(I) of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A. Re Ontario (Ontario Human Rights Commission) and O.P.S.E. U. (Fox) (2001), GSB No. 0507/01 et al. (Stewart). Provided that the relief is not dispositive of the grievance and the union is able to satisfy the two-part test for interim relief, the Board clearly has jurisdiction to order such relief.
In this case, management's right to terminate the temporary transfer agreement is not absolute. It is fettered by the grievor's rights under the collective agreement, including Article 3.2 which prohibits "discrimination or harassment practised by reason of an employee's membership or activity in the Union." Article 2, Management Rights, states that management has the right to manage the business and direct the workforce" including the enumerated specific things, "subject only to the provisions of this Central Collective Agreement...." Therefore management's right to terminate Ms. Clarke's temporary transfer agreement is limited by its obligation not to discriminate on the basis of Union membership or activity. The Ontario Labour Relations Act, 1995 also prohibits discrimination on the basis of Union activity, and that includes the filing and pursuing of grievances. Ms. Clarke's December 20, 2004 grievance alleges, in part, that the termination of the agreement was because of her grievance in relation to the preparation of transcripts and her participation in that proceeding. It is clearly a matter over which the Board has jurisdiction to review the Employer's action and to issue interim relief, if appropriate.
2. Is there an arguable case on the merits?
The case law establishes a two-part test for the granting of interim relief. The two-part test is (1) that there must be an arguable case on the merits of the grievance and (2) the board must balance the potential harm or inconvenience of the parties.
In deciding if there is "an arguable case on the merits", the standard is not a "balance of probabilities" standard but a lesser standard. Re Ontario (Management Board Secretariat) and O.P..S.E. U. (Union Grievance) (1997), GSB No. 1196/97 (Dissanayake, Vice-Chair) at p. 6. In this case, based on that lesser standard, I find that there is an arguable case on the merits. The Union's evidence, if credited at the hearing, would establish that the Ministry's decision was based, in least in part, on Ms. Clarke's activities in support of the transcript preparation grievance
3. Where does the balance of potential harm or inconvenience lie?
I find that this is the truly difficult determination in this matter because I believe that there is harm to both parties. There can be no question that Ms. Clarke would find the commute to Finch/Dufferin quite stressful and significantly more time-consuming than her commute to Milton. It is clear, though, that she would not have to take Highway 401 to get there, or take public transportation. She could drive using a variety of routes, only one of which she has ever tried. Nor is there any evidence that other alternatives, which would limit the amount of driving she would have to do, have been considered, such as car pooling or obtaining a ride with someone. Nevertheless, it is clear that Ms. Clarke would find the commute to the Dufferin/Finch location to be quite difficult and stressful.
As noted previously, the Employer objected to the introduction of the letter from the grievor's doctor dated December 27, 2004, without the doctor being present for cross-examination. It argued that the timing and content of the letter were highly suspicious, that the letter was prepared at counsel's request to support her claims in this proceeding, and that it should not be accepted into evidence without the doctor being called as a witness. In support it cites to Re Abitibi Consolidated Inc. and I.A.M., Lodge 268 (Arnold) (2002), 103 L.A.C. (4th) 160 (Springate). The Union argued that the letter was admissible under the Ontario Labour Relations Act, 1995, and that the only issue was the weight to be given it. In support, it cites to Re Toronto (Metropolitan) and C.U.P.E., Loc. 79 (1992), 25 L.A.C. (4th) 73 (Springate). In the alternative, the Union suggests that an interim order be granted, pending the Union's ability to present the doctor for examination and cross-examination, relying on Re Ontario (Ministry of Labour) and O.P.S.E.U. (Nield) (1996), GSB No. 1471/96 (Roberts), endorsed by the Divisional Court, January 22, 1997.
In the ordinary course, i.e., a regular hearing on the merits, I would not admit the doctor's letter of December 27, 2004 without the doctor being called to testify. As set out in Re Abitibi Consolidated Inc., supra at p. 162, and the cases cited therein, the more recent jurisprudence has "adopted the view that a medical note or report of any consequence should not be admitted into evidence at the request of one party unless the doctor who prepared the document is made available to be cross-examined by the other party if it so requests." The doctor's letter of December 27, 2004 is clearly a medical report "of consequence" and is germane to a central issue in this case.
The type of "proof' accepted in applications for interim relief, however, appears to be of a lesser standard due to the need for expediency. In O.P.S.E. U. (Nield), supra at p. 6, the arbitrator accepted the unsworn declaration of the grievor as sufficient evidence to grant a temporary order for interim relief, "at least where the circumstances are so urgent as to make virtually impossible the submission of better evidence." In this case, the Union tried, without success, to have the doctor testify on January 17, 2004. Further, in Re Ontario (Management Board Secretariat) and O.RS.E. U. (Union Grievance) (1997), GSB No. 1196/97 (Dissanayake), the Board relied on the submissions of counsel where no witness testified about the potential harm. The Board held at pp. 8-9:
[T]he prediction of union counsel, although not tendered as evidence under oath, in my view, was a reasonable and logical prediction of what may occur. In these types of proceedings, no party will be able to "prove" the harm because typically requests for interim relief are made before the harm is done. In each case, in considering the condition of "balance of harm", the Board must attempt as best as it can, to predict what harm may be reasonably expected in the particular circumstances.
Accordingly, in light of the nature of this proceeding, I will admit the doctor's letter into evidence, but for the reasons set forth below, I can only give it minimal weight.
Although admissible, the letter is hearsay and the Employer did not have a chance to cross-examine the doctor. It was also clearly written for this hearing in order to bolster the grievor's claim. I do find that the letter confirms the grievor's testimony that she has a fear or phobia about driving on highways. What I cannot accept is the doctor's conclusion that her working at Dufferin/Finch by taking smaller side streets is "not possible", so therefore "she requires an accommodation in the form of a continuation of her assignments to the Milton Court House" or a closer location than Finch. The phobia he describes is related to highway driving, not driving in general. He specifically states that "she cannot drive on highways due to panic and anxiety disorder brought on by highway driving." In the letter, the doctor does not consider any other alternatives such as carpooling or obtaining a ride with someone, and he simply rejects the length of the commute by public transit as "obviously not feasible." The letter makes no mention of the allegations of harassment made by Ms. Clarke against the manager of the Milton courthouse, nor did he consider, from that perspective, the impact that her staying at the Milton courthouse. In addition, the letter states that "[t]his condition may be somewhat amenable to treatment" although none has been explored. The possibility of treatment undermines the conclusion that she "requires an accommodation in the form of a continuation of her assignments to the Milton Court House." These factors, in my view, undermines the conclusions regarding accommodation reached by the doctor. Accordingly, I find that the doctor's letter supports the grievor's testimony that she has a phobia about highway driving, but it does not establish that the Employer must accommodate her by continuing her temporary transfer agreement to Milton.
It is important to note that this letter was the first indication that the grievor is seeking an accommodation due to a disability as set out in the Ontario Human Rights Code, R.S.O. 1990, c. H.19. The evidence showed that, in the grievor's view, by her stating that she had a fear of driving on highways it was akin to making such a claim for disability, but it is clear that it was not perceived as a disability claim by the Employer. The grievor was never asked to provide medical documentation of her fear, nor did she provide any. In my view, Ms. Clarke cannot be faulted for that since there was no need for medical documentation until she was no longer allowed to work in Milton. Clearly, however, the grievor has now made a claim of disability under the Human Rights Code, based on a phobia of highway driving, and that claim will need to be addressed by the Employer under its accommodation policy. In this regard, I make no ruling on whether the Employer has an obligation to accommodate an employee's commute to work, as opposed to the job itself.
The Employer asserts, in turn, that the Ministry, and Ms. Thomson, would also suffer harm if Ms. Clarke remained in Milton in light of her inability to prepare transcripts after hours as well as because of her grievance and complaints regarding harassment by Ms. Thomson. Ms. Clarke's July 14, 2004 grievance and supporting documentation assert that there has been "escalating harassment imposed by Ms. Thomson..." It asserts that "[t]he continuous and escalating harassing behavior exhibited by Ms. Thomson has put such stress on me that coming to work is very difficult." The evidence shows that Ms. Clarke's feels overwhelmed, has had trouble sleeping, and suffered stress as a result of what has occurred. She took a week off work due to stress in June 2004. The Ministry asserts that it is in light of such allegations and circumstances that the "balance of harm" requires that Ms. Clarke not be returned to Milton on an interim basis. The Ministry asserts that its management actions are continually being viewed as examples of "harassment" by Ms. Clarke and that it would be disruptive and problematic for its manager and Ms. Clarke, as well as other staff, for her to continue there under these circumstances. The Ministry also asserts that it risks potential additional liability and further allegations and problems if the direct contact and conflict between Ms. Clarke and Ms. Thomson were to continue.
In my view, these are legitimate Employer concerns. In Re Ontario (Ministry of Correctional Services) and O.P.S.E. U. (Sammy) (2001), GSB No. 0224/01 et al. (Harris, Vice-Chair), the Board quoted, at pp. 6-7, from a decision on interim relief by Arbitrator Ken Swan in Re William Nielson Ltd. and U.F. C.W. (unreported, July 16, 1993), which, in part, states:
[T]here are other factors which might very well demonstrate inconvenience to an Employer, particularly where elements of additional financial cost, reasonable apprehension of harm to the workplace or other employees, or serious questions of workplace morale arise.
In this case, the Employer asserts that there is a reasonable apprehension of harm to the workplace and its manager in particular, and questions of workplace morale would arise, should the grievor be allowed to remain in Milton under Ms. Thomson's supervision, pending the hearing in this matter.
Normally when allegations of harassment are made, it may be reasonable, where feasible, to separate the parties. It prevents escalation of the situation and avoids additional allegations from exacerbating an already difficult situation. Here, the Employer argues that because the grievor was in Milton on a temporary transfer agreement until January 1, 2005, it was feasible to separate the parties upon the expiry of that agreement. It submits that it was the prudent thing to do.
Yet the grievor wants to remain in Milton where the alleged harassment has taken place and under the direction of Ms. Thomson. She testified that she wants to do that, despite the harassment, because keeping her "travel accommodation" was her "biggest concern." The Union contends that not to grant the requested relief sends the message that if you grieve harassment, and are vocal about it, you are subject to removal from the workplace and given a three-hour commute, which will have a chilling impact on employees. It acknowledges that having a harassment claim made against a manager may be difficult and uncomfortable for the manager, but it asserts that it is not a basis to relocate the accuser. To do so, it submits, is akin to punishing or blaming the victim.
The Union has a valid point in the normal case where an employee is in his home position. Too often, it is the alleged victim who is moved. But Ms. Clarke was not in her home position. She was in Milton on a temporary transfer agreement, which was expiring. In that situation, where there are serious claims of harassment against a specific manager, not returning the grievor there — on interim relief — cannot be seen as punishing the victim. It is, instead, a matter of balancing the harm.
The Union also asserts that the harm raised by the Employer can be contained by having the grievor's immediate supervisor, Elaine Ferry, deal with Ms. Clarke instead of Ms. Thomson. It submits that the Employer's "harm" is really a matter of administrative inconvenience, and that the interactions between Ms. Clarke and Ms. Thomson could be limited. I cannot agree. The evidence showed that there are many issues that would arise in relation to Ms. Clarke's work that Ms. Thomson would have to be involved in should the grievor be returned to Milton. These include accommodation issues, issues about assignments and transcripts and issues regarding work location — all areas of potential conflict.
While the grievor testified that she would treat Ms. Thomson professionally, and the Union argued that the issues were not "personal" to Ms. Thomson but rather related to the Ministry's no-typing policy, the grievor's e-mails after her meetings with Ms. Thomson demonstrate that it was very personal. The e-mails clearly blame Ms. Thomson, personally, for a wide variety of actions including imposing the no-typing policy in Milton.
In contrast, the evidence showed that Ms. Clarke's relationship with the Manager at Finch/Dufferin, Rosa Martelli, was a good one. Also, per Ms. Martelli's testimony in the Hunt et al. case, GSB No. 2001-0534 et al., Ms. Martelli's practice is to allow court reporters to type transcripts during down time. As a result, some of the operational concerns caused by the no-typing policy in Milton combined with Ms. Clark's inability to type transcripts after hours, may not arise or may be lessened at Dufferin/Finch. As set forth in Re Ontario (Ministry of Health) and O.P.S.E. U. (Leeder) (1995), GSB No. 2498/93 et al. (Finley, Vice-Chair), at p. 30:
[F]ollowing the determination that there is an arguable case, [the analysis] is one of "weighing" the potential harm or inconvenience to the parties in a particular situation and granting or denying the interim relief based on the outcome of this exercise, and on the practicalities of the situation. If the potential harm or inconvenience is greater for the employee, then relief would be granted; if it is greater for the employer, it would be denied....
Here, there is clearly potential harm or inconvenience to both parties. I find, however, that, on balance, the harm to the Employer outweighs that to the grievor. In light of the fact that Ms. Clarke was on a temporary transfer agreement to Milton (versus it being her home position) and in light of the operational concerns caused by the her inability to type transcripts after hours, as well as the repeated allegations of harassment that she has made against her Milton manager which have affected her own health and well-being, the potential harm to the Employer of the grievor's remaining in Milton and the real potential for continuing conflict, pending the outcome of this matter, outweighs the burden imposed on the grievor by commuting to Dufferin/Finch.
In so ruling, I do not minimize the grievor's difficulty in commuting to Dufferin/Finch compared to Milton. I know she feels that she is being punished for speaking out. But the issue here, in this request for interim relief, is the balance of harm. For the reasons set forth above, I find that the harm to Ms. Clarke from not awarding interim relief, pending the outcome of the hearing on the merits, does not outweigh, on balance, the potential harm to the Employer should the requested interim relief be granted.
Conclusion
For all of the reasons set forth above, the Union's motion for interim relief is denied.