GSB#2008-0868

UNION#2008-0205-0039

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Difederico)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Alick Ryder Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Counsel

HEARING

November 13, 2009.

Decision

1This decision deals with a motion for dismissal brought by the employer on the grounds that the union has not made out a prima facie case. The employer agreed that for the purposes of this motion only the Board should accept the facts as outlined in the union’s particulars, and supplemented at the hearing.

2The grievor, Ms. Sylvia Difederico is employed at the Hamilton Court House in the unclassified service as Record Management Clerk. She was first hired into the unclassified service in 1987. In 1991, and again in 1992, she unsuccessfully applied for postings. On December 7, 1992, the grievor was also advised that her unclassified contract would end effective December 21, 1992. She grieved the two job competitions, and also filed a grievance alleging unjust dismissal. All three grievances came before the Vice-Chair Ken Petryshen. On February 9, 2007, Vice-Chair Petryshen issued his decision (“Petryshen decision”) dismissing all three grievances. However, the employer called the grievor back to the present position effective April 25, 1994, and she has remained in that position.

3The union claims that the Petryshen decision damaged the grievor’s reputation. She felt very upset and vulnerable as result. It was in these circumstances that the events leading to the instant grievance occurred. An employee at the Hamilton Court house (hereinafter “x”) approached management with an e-mail she had received from an unknown person. The content of the e-mail indicated that its author had familiarity with the Hamilton Court House and had been sent from a private computer. It contained very derogatory statements about numerous religious groups.

4Upon review of that e-mail, management concluded that its author may be one of its employees. Following an internal fact-finding process which included interviewing x, it appeared to management that the Workplace Discrimination and Harassment Policy (“WDHP”) may have been violated. Ms. Lisa Feld, an external investigator, was retained to investigate. Ms. Feld was provided a list of names of employees, based on management’s interview with x.

5Ms. Joanne B. Spriet, Director of Court Operations sent the following memorandum dated January 14, 2008 to all staff in the Hamilton Court Services Division.

A disturbing incident was recently brought to my attention whereby an email was found to be in circulation in the Hamilton area that contained derogatory messaging targeted at various groups, contrary to the provisions of the WDHP Policy.

The Ministry is extremely concerned about this incident. It is important for all staff to be aware that there is zero tolerance in the Ministry and in the OPS for any kind of discriminatory behaviour in its workforce.

An investigation has been initiated and we are acting quickly to address this issue. However, I am disappointed that this sort of behaviour, which is offensive and disrespectful to various groups that comprise the workforce at the Hamilton Courthouse, has occurred.

We are concerned about the employees who may have been exposed to this email messaging and may be experiencing distress. I would encourage these employees to approach their managers to discuss available support resources.

We intend to resolve this matter internally, and as soon as we have the results of our investigation, we will be taking steps to deal with those who were involved.

In closing, I want to stress that all staff are expected to comply with the WDHP Policy and all employees are required to read the Policy which can be found intranet site – Worksmart at: (http://intra.worksmart.mag.gov.on.ca/hrb/labour_relations/wdhp_employee_info.asp)

It is important to note that the Policy covers behaviours based on prohibited grounds (such as sexual orientation, sex, race and ethnic origin), including employment-related discrimination or harassment that occurs outside of the workplace.

If you have questions on the Policy you should approach your manager for clarification. Further, should anyone have information regarding this latest email incident, they are required to come forward to their manager as soon as possible.

Thank you for your anticipated co-operation in this matter.

6It is reasonable to conclude that the grievor’s name was included in the list provided by management to the investigator Ms. Feld, because on March 24, 2008, Ms. Feld wrote the following e-mail to the grievor:

My name is Lisa Feld. I have been retained by the Ministry to conduct an investigation under the WDHP regarding an email that was circulated last year. I would appreciate the opportunity to meet with you to conduct an interview on Tuesday April 1 at 12pm. You are entitled to bring a representative with you to the meeting if you wish. I understand a private room at the John Sopinka court house will be available, or we could meet somewhere else if it is more convenient. Please contact me via return email, or call me at my office 416-307-0003 to confirm the appointment.

7The grievor replied inquiring about Ms. Feld’s credentials, and seeking other information about the investigation. The grievor was advised by Ms. Feld to direct her inquiries to Ms. Leslie Sawyer, WDHP Advisor. On April 23, 2008, the grievor e-mailed Ms. Sawyer as follow:

Dear Ms. Sawyer, I received this very disturbing e-mail from Lisa Feld. I have requested from her the name of the person or persons responsible for giving her my name, and also the name of the person whom she represents in the Ministry. I await your response to this very serious matter, as Lisa had mentioned in her email if I had further questions regarding this matter I am to contact you.

8The grievor had no response from Ms. Sawyer. She did not attend the interview scheduled for April 1^st with Ms. Feld. She was not forced to attend, nor did the employer take any action as a result of her failure to attend.

9Ms. Feld proceeded with her investigation, but was unable to identify the author of the offensive e-mail. On June 16, 2008, Ms. Spriet sent the following memorandum to all staff at Hamilton Court Services Division:

Further to my earlier memorandum to all Divisional staff in Hamilton, I wanted to update you on developments with respect to our investigation into the inappropriate and discriminatory email that was circulated to staff at their home email addresses.

We conducted a thorough investigation into this matter using the services of a professional external investigator. Although we are not successful in identifying the author of the email, it was important to us to fulfill our obligations to you under the Workplace Discrimination and Harassment Prevention Policy (WDHP Policy) not only in principle but also in a very practical sense. Our actions in initiating this extensive investigation process demonstrate our continued commitment to the Policy and to our duty to provide you with a workplace that is positive, respectful and free from discrimination and harassment in all its forms.

I appreciate that investigations of this sort may give rise to concerns on the part staff. Therefore, we would encourage anyone who is experiencing any such difficulties to approach their manager or contact the Employee Assistance Program via their website: http://www.fgiworld.com/

On a more positive note, I would like to take this opportunity to express my appreciation to those staff who participated in, and gave their full co-operation to, this investigation process. It was reassuring to see that our staff were not only willing to participate but were also extremely supportive and committed to our efforts to address this offensive and discriminatory act. I would like to extend my personal thanks to those staff who participated in the process, including those staff who accompanied the participants in accordance with the WDHP Policy.

10Counsel for the union, submits, based on the foregoing facts, that the employer had exercised its management rights under article 2 of the collective agreement to “point the finger” at the grievor. He submits that the employer did so, in retaliation for the grievor’s filing of the three grievances that resulted in the Petryshen decision. He relied on article 3.2 which provides, “There shall be no discrimination or harassment practised by reason of an employee’s membership or activity in the union.” Union counsel stated that he was not questioning the employer’s right to conduct a WDHP investigation, or to interview the grievor as part of it. However, submits counsel, the employer would, and should, have known that as a result of the grievances filed by the grievor, and the resulting Petryshen decision, “a cloud had been placed over the grievor’s reputation”, particularly in the eyes of the managers. In those circumstances, submits counsel, the employer had an obligation to remove that cloud as soon as practicable by making a statement to indicate that the grievor was not the author of the offensive e-mail. The employer did not do that. Instead, it informed all staff of the e-mail, describing it as “a disturbing incident”, that it contained “derogating messaging”, and that there is “zero tolerance” for such behaviour. Counsel submitted that the memorandum was an unusual “public act”, and that the inclusion of the grievor’s name in the list provided to Ms. Feld indicated that she was one of those targeted as the author of the e-mail.

11Union counsel referred me to a “Standards of Conduct” document, which had been created following discussions between management and the employees in the Court Services Division as an aid to improving the work environment.

It reads:

As employees of the Court Services Division in Hamilton, we have a responsibility to provide a courteous and respectful working environment to both our clients and co-workers. To meet this goal requires a commitment to ethical behaviour and a high caliber of professional conduct. Accordingly, staff and management are committed to the following (enforceable) principles:

1. Performing our duties on behalf of the citizens and government of Ontario with honesty and integrity.

2. Fostering a positive, supportive, team approach in their workplace.

3. Dedicated to providing the highest level of customer service and to fulfill our duties in a diligent, competent, and courteous manner.

4. Fulfilling our responsibility to colleagues by fostering and maintaining working relationships based on mutual respect, dignity and cooperation.

5. Maintaining an environment, which is fair, equitable and free from all forms of discrimination and harassment.

6. Displaying professional conduct and maintain relationships which are fair, impartial and free of impropriety in all our dealing with those currently of formerly under the ministry of authority, their families and associates.

7. Respecting the civil, legal and human rights of our co-workers and clients.

8. Maintaining confidentiality of information acquired through our employment, consistent with relevant legislation and protocols.

9. Promoting the principles and support the practices of achieving a safe and healthy work environment.

10. Agreeing to look beyond past conflicts and past relationships and are committed to a new start of looking forward.

11. Open, honest and direct communication between staff and management in order to build trust, cohesive, and to enhance conflict resolution.

12. Agreement to treat one another with respect, courtesy, sensitivity and politeness an all interpersonal communication and interaction.

13. Agreement to be sensitive to differences in personality and work-styles.

14. When attempting to resolve conflict and/or issues between staff, staff will undertake to use an interest-based approach to conflict resolution.

15. Management is committed to using its best efforts to respond to internal workplace challenges (e.g. conflict, workload issues) in a timely manner.

16. Sharing of appropriate information and knowledge between staff and between management and staff is essential. An informed workplace can improve teamwork, morale and productivity.

17. Staff recognizes and appreciates the challenges of working efficiently and productively within an open concept work environment. To this end, staff will strive to reduce noise levels in the workplace, by limiting personal phone calls, chatter, and discussions unrelated to work issues.

Counsel conceded that the “Standards of Conduct” document was not a binding document agreed to between the union and the employer. However, he submitted that the employer’s treatment of the grievor was directly in contravention of the commitments it had undertaken in bullets 1, 2, 4, 5, 12 and 16 of the document.

12The union’s particulars provided to the employer pursuant to a Board order are as follows:

1. The grievor is an unclassified employee of the Court Services Division of the Ministry of the Attorney General in Hamilton where she was first hired in March 1987.

2. The grievor has been unsuccessful in a number of grievances contending inter alia¸ that her management in Court Services treated her unfairly in the competition grievances respecting positions which had been converted to the classified services in 1991 and 1992, including her own unclassified position. Subsequent to these grievances, the grievor was wrongly terminated from her employment.

3. On January 14, 2008, Joanne B. Spriet wrote a memo to all staff in the Court Services Division in Hamilton stating that the Workplace Discrimination and Harassment Prevention (WDHP) Policy had been breached. The memo stated that “a disturbing incident was recently brought to my attention whereby an email was found to be in circulation in the Hamilton area that contained derogatory messaging targeted at various groups, contrary to the provisions of the WDHP Policy”.

4. The memo of January 14, 2008 implied that a staff person was responsible and that an investigation had been initiated.

5. Joanne B. Spriet and others in the Court Services Division at Hamilton engaged the services of Lisa Feld of ADR Chambers to conduct the above investigation and provided her with the grievor’s name as a person within the scope of the investigation.

6. On March 24, 2008 Ms. Feld emailed the grievor requesting her attendance at the interview in a manner likely to infer that the grievor had acted improperly. The grievor responded with an email to Ms. Feld requesting information as to the manner in which the grievor’s name was implicated. Ms. Feld referred the grievor to Leslie Sawyer of MSG who has not responded.

7. By letter dated June 16, 2008 Ms. Spriet advised staff at Court Services Division in Hamilton that the investigation had been conducted without identifying the author of the original email.

In addition, I am enclosing

i. Memo of Joanne Spriet dated January 14, 2008;

ii. Lisa Feld email dated March 24, 2008 to the grievor;

iii. Lisa Feld email dated March 30, 2008 to the grievor;

iv. Grievor’s email to Lesley Sawyer dated April 23, 2008;

v. Memo of Joanne Spriet dated June 16, 2008.

13In a subsequent letter dated November 9, 2009, to employer counsel, union counsel articulated the union’s position as follows:

You have known for some time now that Grievor makes the assertion that your client has improperly exercised its management’s rights under Article 2 of the Collective Agreement to discriminate and harass the Grievor contrary to Article 3.2 of the Collective Agreement. Your client has punished her for exercising her right to pursue the grievances outlined in the decision of the GSB dated February 9, 2007. The Standards of Conduct have also been referred to and we reserve the right to rely on them.

14In support of his motion, Counsel for the employer submits that even accepting all of the facts asserted by the union, there is no evidence whatsoever that the employer took any discriminatory or harassing action against the grievor. Therefore, it is a non-issue whether the employer acted out of an anti-union motivation.

15Counsel submits that the employer is committed, and is obligated, to enforce the WDHP. Therefore, when it became apparent that an employee may be responsible for authoring an e-mail that was in violation of that policy, it had a duty to act. Counsel conceded that Ms. Spriet’s memorandum on January 14, 2008 was strongly worded. He submitted that in the face of the offending e-mail, a strong message to all staff was warranted, and quite appropriate. He submitted that there was nothing in the facts relied upon by the union suggesting that the grievor was penalized or targeted in any manner. Her name was included, along with seven other names, for possible interviews. This list was prepared on information provided by the employee who had received the e-mail. Moreover when the grievor raised issues with the request to attend an interview with the investigator and refused to attend, the employer did not discipline or take any other action against the grievor. The alleged facts do not disclose that the grievor was penalized at all.

16Given the manner in which the grievance has been framed, in order to establish a prima facie case, the facts asserted by the union must establish that (1) the employer conducted itself in the exercise of its management rights in a manner discriminatory or harassing of the grievor, (2) that such conduct was motivated in whole or in part, because of the grievor’s filing of grievances some 17 years ago. I find that the union has not made out the first element of articles 3.2 above, so that the second element becomes moot.

17If, as union counsel suggests, the grievor’s reputation had been tarnished as a result of the Petryshen decision, there is nothing to suggest that the employer was in any way responsible for that. For example, there is no allegation that the employer posted it at the workplace, or took any other steps to draw it to the attention of the staff.

18During his submissions, union counsel alluded to Ms. Spriet’s memorandum dated January 14, 2008, and the e-mail from the investigator to the grievor requesting her to attend an interview. He also particularly relied on an omission on the part of the employer to exonerate the grievor, following the investigation.

19However, I find nothing discriminatory or harassing of anyone in Ms. Spriet’s memorandum or Ms. Feld’s e-mail. The former conveys that the employer treats derogatory statements about religious groups seriously, and is strongly worded. It is addressed to all staff, and does not single out anyone as a suspect. I cannot see how anyone reading this memorandum could have reasonably concluded that the “finger was pointed” at the grievor, as the union suggests. Ms. Feld’s e-mail is nothing more than a request to attend an interview. There is no suggestion that the grievor is suspected. Treating “the Standards of Conduct” as employer policy, I find that the employer has done nothing inconsistent with its provisions.

20For purposes of this motion, I assume as a fact that the grievor’s reputation had been tarnished as a result of the Petryshen decision. However, what is lacking is evidence that the employer was aware of that. Union counsel submitted that the employer “knew or ought to have known that.” That is not a reasonable assumption in light of the evidence. A review of the Petryshen decision indicates that the three grievances were dismissed on the grounds that her allegations were not supported by the evidence. There is no suggestion in the decision that the grievances were frivolous, or that it was an abuse of the process. There is simply no disparaging comments about the grievor. The grievor had the legal onus in each of the grievances. It would be absurd for anyone to think any less of a grievor’s reputation merely because the grievor failed to discharge that onus. It is certainly not reasonable to assume, in the absence of any evidence, that the employer ought to have known that the grievor’s reputation had been damaged as a result of the dismissal of her grievances by the Board.

21In any event, even if the employer is taken to have been aware of that, I do not agree that it had a duty to take affirmative action to publicise that the grievor was not the author of the offensive e-mail. There may have been some validity to that argument, if the employer had “pointed the finger” at the grievor. However, I have found that simply did not happen. There is not an iota of evidence to that effect. Moreover, this WDHP investigation was inconclusive. The culprit was not identified. And that was exactly the information conveyed in Ms. Spriet’s memorandum dated June 16, 2008. Given the inconclusive result of the investigation, the employer would not have been in a position to declare the grievor or any other individual as “exonerated.” All it could do, as it did, was to inform that the author of the offensive e-mail could not be identified.

22The facts relied upon by the union do not establish a prima facie case, that the employer took any negative action against the grievor, leave aside any act of a discriminatory or harassing nature. When a possible violation of the WDHP involving derogatory statements about religious groups was brought to its attention, the employer was under an obligation to treat it seriously. In fulfilling that obligation, the employer conducted an investigation. It did so without disparaging or accusing the grievor or any other individual. When the investigation failed to identify the author of the offensive e-mail, the employer informed all staff of that.

23The union’s case is that the employer had exercised its management rights in such manner as to infringe the grievor’s rights under article 3.2. In order to succeed, the union has to adduce some evidence that the grievor’s article 3.2 rights were affected. For reasons I have set out, the alleged facts do not make out a prima facie case that the grievor’s collective agreement rights were in any way affected by the employer’s conduct.

24Accordingly, the employer’s motion is upheld and the grievance is dismissed.