Ontario Public Service Employees Union (Halfyard) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2010 CanLII 28607

GSB#2001-1778, 2002-2925

UNION#2001-0225-0004, 2002-0122-0035

Under

Before

BETWEEN

Ontario Public Service Employees Union (Halfyard)

Union

and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Owen V. Gray

Vice-Chair

Mr. John Brewin Counsel Ryder Wright Blair & Holmes LLP

Mr. George Parris Counsel Ministry of Government Services

January 25 and 26, 2010.

1The grievance in this matter is dated December 20, 2002 and reads as follows:

Statement of Grievance

That the employer is in violation of the WDHP & Art. 3 of the Collective Agreement in that the employer has caused me to be subjected to (physical, mental, verbal and sexual) harassment.
That the employer has failed to provide me with suitable accommodation as req’d under the C.A. & the HRC based on my family status.
That the employer has not provided me with a healthy & safe workplace in breach of Art. 9 of the C. A.
Any other article that may apply.

Settlement Desired

Apart and in conjunction with full redress; unspecified at this time.

2The employer objects that some of the subject matter of this grievance (“the current grievance”) was settled by the parties’ settlement of a previous grievance and that, in any event, the entire grievance is untimely.

3The union disputes that the subject matter of the current grievance was settled. It admits that the grievance was filed after the time specified in the collective agreement, but asks that the time for filing the grievance be extended. That request is based in large part on allegations about the state of the grievor’s health, and its impact during the period between the events complained of and the filing of the current grievance on her ability to recognize that there was a basis for that grievance. The union was not in a position to address that aspect of the request in evidence on the scheduled hearing dates, due to the state of the grievor’s health.

4In the circumstances, the parties agreed that I should deal first with the objection that the subject matter of this grievance was settled in part by the parties’ settlement of the previous grievance. I was given the current and previous grievances, the document by which the previous grievance was settled and the union’s particulars of the allegations of fact on which it relies in the current grievance.

The Previous Grievance and Its Settlement

5The grievor had been working at the Walkerton Jail as a correctional officer for just over two years when she filed the previous grievance on January 4, 2001. That grievance read as follows:

Statement of Grievance

Employer(s) have failed to provide accommodation for me as requested and as required based upon family status under the Collective Agreement and the Human Rights Code and any other applicable legislation.

Settlement Desired

Employer accommodate me as requested and required based upon family status under the Collective Agreement and the Human Rights Code.
Any and all credits used/lost as a result of alternate arrangements BE RESTORED TO ME.

The grievor booked off sick the day she filed this grievance, and did not return to work at the Walkerton Jail thereafter.

6On May 30, 2002, the parties signed a Memorandum of Settlement (“the settlement”) settling that grievance on the following terms:

Wendy Halfyard, Correctional Officer, Walkerton Jail Grievance dated January 4, 2002 [sic] – Accommodation/Human Rights Code

Management agrees to provide the grievor with a 3-month temporary assignment at Bluewater Youth Centre as a Records Clerk with additional duties as assigned by the Officer Manager. During the period of this assignment the grievor will retain her current classification and salary.
In the event of a labour dispute occurring during the term of this 3-month assignment, management acknowledges that the time period working under Essential Services Agreements will constitute a hiatus in the temporary assignment.
At the conclusion of the aforementioned assignment, Management agrees to provide the grievor with a six-month temporary assignment as a Correctional Officer at the Bluewater Youth Centre provided the grievor has successfully completed the Young Offender Conversion Training. The period of time spent attending the Young Offender Conversion Training will be considered a hiatus in the temporary assignment. This assignment may be renewed for a further six month period on agreement of the grievor and the Superintendents of Bluewater Youth Centre and Walkerton Jail.
The grievor acknowledges that any and all expenses incurred as a result of terms 1, 2, or 3 are the responsibility of the grievor.
Competition # CS 4121-01 for a Records/Accounts Payable Clerk will be deferred until the grievor has completed her 3-month temporary assignment in the Records Department at Bluewater Youth Centre.
Management agrees to consider and where required provide workplace accommodation in accordance with existing policies, procedures and legislation.
Management agrees to reinstate the Short Term Sick Plan credits and Vacation top up used in association with this period of absence up to the date of signing. For further clarity, in the event this memorandum is signed on March 15, 2002, 50.5 STSP and 12.625 Vacation credits will be reinstated.
The above noted grievance is withdrawn.

7The grievor went to work at Bluewater Youth Centre at the end of May 2002, in accordance with the settlement. She booked off sick on July 17, 2002, and has remained absent since. There is evidently an outstanding dispute with the Long Term Disability benefits plan administrator about the grievor’s entitlement to benefits for the period since December 2002. That dispute is not before me.

The Nature of the Current Grievance

8The union’s particulars indicate that the alleged “harassment” for which the grievor seeks remedies in the current grievance includes conduct the grievor experienced at the Walkerton Jail prior to January 4, 2001, as well as conduct by management at Bluewater Youth Centre during and after the period she worked there. The focus of the objection with which this decision deals is on the claim with respect to harassment that allegedly occurred at the Walkerton Jail prior to the filing of the previous grievance.

9The union’s particulars with respect to the alleged harassment at the Walkerton Jail say that a member of the jail’s management, described here as “Mr. X,” engaged in harassment of the grievor by various means including, but by no means limited to, his denials of her requests for accommodation and the manner in which he addressed them. The union has provided the following particulars of that alleged harassment.

… the Grievor began at Walkerton Jail on November 2, 1998. In her previous experience in the Ministry, she enjoyed the work and had excellent relations with her co-workers generally. She looked forward to coming to work.
It was different at Walkerton, almost entirely because of [Mr. X] and the failure of the administration to respond to her concerns about [Mr. X]’s behaviour towards her. Ultimately it took a toll on her health, as [Mr. X] and management knew or ought to have known it would.
Within the first week of the Grievor beginning work at Walkerton, [Mr. X] acted inappropriately towards her. In keeping with the practice at her earlier work locations, the Grievor handed in her vacation selection for the next year to [Mr. X] in the managers’ office. He immediately picked up the paper and embarrassed her by saying, “What the fuck do you think you’re doing? You just can’t pick your fucking vacation days here.” His words and tone were humiliating and disturbing.
Over the next two years, [Mr. X] would come on to her floor every shift on which she worked, without any institutional reason for doing so. Sometimes there would be other staff there, sometimes not. Sometimes he would talk with her within earshot of the inmates and other staff about personal and other inappropriate matters. By his conduct towards her it would seem as if his purpose was to intimidate, harass, humiliate and embarrass her. On several occasions in this period he would ask her what her age was. She would reply that it was her business. He always replied that he could find out. There was no operational reason for his inquiry about her age. He would yell at her about her requests for relief from night shifts. He spoke in a way that was obviously intended for other staff and inmates to hear, accusing her of undermining the institution. He would criticize her work in front of others for things that other staff did without evident criticism.
Once [Mr. X] persistently and repeatedly asked the Grievor for the name of her ex-husband, stating he would get it from records if she didn’t tell him. She told him that his conduct and threat to use his access to the records for personal matters was an abuse of authority. Despite this he persisted.
For most of the time that Ms. Halfyard was at Walkerton she was the only female correctional officer trained to do escort duties. [Mr. X] refused to have another female correctional officer trained though CO Joyce Zeigler was available and willing. The result was that Ms. Halfyard was often called in outside her regular hours to do escort duty of female inmates, cutting seriously into her family and off-duty time. Usually the duties involved a 4.30 a.m. call-in. [Mr. X]’s failure train Ms. Zeigler was either intentionally aimed at the Grievor or was negligent. Either way it was a breach of Article 9.
At Christmas time and on New Year’s Day one year, [Mr. X] asked the Grievor for a kiss. She said no. He persisted until finally she told him to “fuck off”. From the Grievor’s observation no one else was asked for a kiss nor did this seem to be the practice at the institution.
During lunch the Grievor occasionally would inadvertently find herself in the lunch room alone with [Mr. X]. He would proceed to tell her intimate details of his relationship with his wife and comment on her relations with her partner. [Mr. X] told her that his wife wouldn’t sleep with him and that she hated him. He would make comments such as the Grievor “was not good enough” for her partner. Ms. Halfyard began taking her lunch at her desk, the only correctional officer to do this.
On another occasion he would say that the Grievor sounded like his wife. In front of two officers, Ken Fitzgerald and another officer named Ron Amburn and inmates on the lower floor of the Jail, [Mr. X] told the Grievor her breasts were too small and reached towards her with his hand in an attempt to poke her breast with his finger. She jumped back, the only way she could avoid him touching her on the breast.
Another day the Grievor had to pass through a door half blocked by [Mr. X]. As she waited for [Mr. X] to clear the door and while they were in close proximity, he looked her up and down from head to toe. When she went past him he looked at her breasts then gave her a direct and piercing look in the eye, conduct which disturbs her to this day.
On one shift [Mr. X] came onto the Grievor’s floor, went into the cell of an inmate [M.L.] contrary to policy and loudly woke the inmate up, for no apparent reason other than to put the inmate into a negative mood. Later [Mr. X] returned to the floor and got into a yelling match with the inmate. The inmate spit at [Mr. X] and the Grievor. There was no operational reason for [Mr. X] even to be on the floor. The Grievor drew the conclusion his actions were intended to disturb and threaten her through the inmate.
At another occasion [Mr. X] said belligerently to the Grievor, while making threatening gestures, that if she were a man, he would hit her.
On one occasion the Grievor applied for leave of absence without pay to look after her son, as she was entitled to do under the terms of the Collective Agreement. Apparently [Mr. X] had no experience with this. He yelled at her, saying among other things, that she “couldn’t fucking do that”, that she was affecting the entire institution. In fact it caused no problems for the institutions as there were casuals available to take her shifts.
To some extent he acted in an harassing way with other staff. He was consistently demeaning and inappropriate in his conduct towards the Grievor. Some of these actions were personal and eventually sexual in its [sic] tone and content. Some was in response to her repeated requests for relief from night shifts. He invariably denied her requests, often in a demeaning and harassing way that added to her distress.
[Mr. X]’s persistent refusal to facilitate her requests for accommodation were in and of themselves a breach of the Collective Agreement and the Human Rights Code, in the submission of the Union. [Mr. X]’s part in the refusal to accommodate was also part of the pattern of harassment by [Mr. X] of the Grievor. This includes the letter she received on January 2, 2001, referred to in Paragraph 19 above.
[Mr. X] knew or ought to have known his conduct as described above had or would have a negative effect on the Grievor’s health. The Superintendent knew in general of [Mr. X]’s conduct towards the Grievor because she told him about it. He was also aware of and contributed to the persistent refusal to accommodate her. He too knew or ought to have known that these things had or would have a damaging impact on the Grievor’s health.

10I need not set out here the union’s particulars of alleged harassment of the grievor by management at Bluewater during and after her employment there: the employer does not suggest that those are inarbitrable as a result of the settlement of the previous grievance.

11The union alleges that while the grievor was working at the Walkerton Jail she began suffering “symptoms of physical, emotional and mental ill-health” including “anxiety and a sense of stress, low mood, panic attacks, loss of memory, stuttering, heart palpitations, headaches, exhaustion and other related issues.” It says that she knew of these symptoms at the time, “but did not realize or even consider that the symptoms were in any way linked to the harassment and failure to accommodate” until after she was diagnosed as having a serious mental disorder that her treating physician told her, in December 2002, was “caused by the situation at her workplaces.” That opinion triggered the grievance, it says, and the remedial claim for “replacement of all loss of income, all expenses and substantial general damages, with interest, along with such other remedies as the Board deems appropriate.”

The Parties’ Positions

12The employer argues that it is clear from the particulars that the denials of accommodation that were the subject of the previous grievance were denials by Mr. X. It submits that the complaint made in the previous grievance must be taken to have covered both the denials themselves and all conduct “reasonably linked” to the denials, including the manner in which Mr. X handled the requests. Employer counsel conceded that, apart from allegations about Mr. X’s response to requests for relief from night shifts, the allegations in paragraphs 25, 26, 28, 29, 30, 31, 32 and 33 of the union’s particulars are not “reasonably linked” to the denial of accommodation that was the subject of the previous grievance.

13In his argument employer counsel made reference to a Re Enbridge Gas¹ award of arbitrator Burkett’s in which he quoted² a passage from Parry Sound³ that quoted Justice Brooke’s observation in Re Blouin Drywall⁴ that grievances should be liberally construed:

Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions and this whether by way of declaration of rights or duties, in order to provide benefits or performance of obligations or a monetary award required to restore one to the proper position he would have been in had the agreement been performed.

The employer argues that in determining what was settled in May 2002, the previous grievance should be liberally construed.

14The union’s position, quite simply, is that it is apparent on its face that the only adverse treatment for which the previous grievance sought relief was the employer’s failure to accommodate the grievor and not any other aspect of the manner in which management treated her, either in response to her requests for accommodation or otherwise.

Decision

15In debates about the scope of grievances, distinctions are made between the nature and scope of the alleged conduct complained of, on the one hand, and, on the other, the nature and scope of the remedies claimed in respect of that conduct (which was the issue in Re Blouin Drywall) or of the legal arguments that will be relied upon to establish that that conduct breaches an express or implied term of the collective agreement (which was the issue in Parry Sound). Arbitrators do and should interpret written grievances liberally and non-technically, so as to address the true nature of the dispute that is being advanced by the grievance. That is not, however, licence to transform the dispute that has been advanced into something materially different.

16Written grievances are frequently framed in vague terms. The parties’ understanding of a grievance filed in writing evolves when they subsequently discuss it. What is then said about the grievance to those responding to it is pertinent to an assessment of the scope of the grievance going forward.⁵

17When explanations of vaguely worded grievances are sought and provided, the grievances often take on a different complexion from what the responding party initially perceived through the lens of its own experience of the context in which the grievance arose. In any particular case it may be debated whether such a discussion merely clarifies the grievance or transforms it into something materially different. When the discussion occurs promptly after the events on which the grievance focuses, however, the difference may have little practical consequence. A responding party who objects that a filed grievance does not embrace all of the conduct complained of in the subsequent discussions must consider whether there is any real advantage to be gained by obliging the grieving party to split what it sees as one grievance into two, particularly if, in the circumstances, the time limit for filing the second is likely to be extended if objections to timeliness are raised and an application to hear the two together is likely to be granted.

18Accordingly, it would not have been particularly surprising if the grievor’s allegations of harassment by Mr. X – either just the harassment that occurred in the context of her requests for accommodation or all of the alleged harassment – had emerged in the course of the parties’ discussions of what was written in the grievance filed January 4, 2001, nor if the union had then contended that the grievance embraced and sought a remedy for that alleged conduct as well. While that would have been a debatable proposition, particularly as to the harassment not directly connected with requests for accommodation, it would not have been particularly surprising if the employer had agreed to deal with the grievance on that footing. That these things would not have been surprising does not, however, define the previous grievance for purposes of determining what was settled by its withdrawal.

19There is no evidence that the union or the grievor ever said anything to the employer to suggest that redress was being sought in the previous grievance for anything other than the mere fact that accommodation had not been provided. Employer counsel stated that any such statements would have occurred in the grievance process and would therefore be inadmissible. Although a major purpose of the grievance process is to facilitate settlement of grievances, another is to clarify what the grievance is about. Although evidence about settlement discussions in the grievance process is usually inadmissible, evidence about what was said about the scope of a grievance during such discussions may be admitted to assist in the resolution of a dispute about the grievance’s scope.⁶

20In any event, if those who negotiated the settlement for the employer thought that the claim they were settling was broader than what appeared on the face of the written grievance, they could and should have made that clear in the terms of the settlement. A settlement agreement can be worded so as to expressly release the employer from liability for matters other than those apparently raised by the grievance being settled. As the settlement agreement in issue here is worded, however, its only preclusive effect flows from its provision that the grievance be withdrawn. As a result, and although the time limits in the collective agreement may do so, the settlement agreement does not preclude a grievance about conduct other than any alleged failure to provide accommodation for family status needs prior to January 4, 2001. I am not persuaded that this preclusive effect extends to claims for redress for harassment by a member of management, even harassment that occurred in the course of his receiving, commenting on or responding to the grievor’s requests for accommodation.

21That is not to say that the settlement of the previous grievance can have no effect on the current grievance. It is the conduct complained of in the previous grievance that defines what was settled by its withdrawal, not the claims for consequential relief that may have been made. If the previous grievance had only asked for a declaration that the grievor’s rights had been breached by the alleged failures to accommodate, and an arbitrator had granted that remedy, the grievor and the union could not thereafter have pursued another grievance for any other remedy for the same failures to accommodate. Similarly, the withdrawal of the grievance pursuant to a settlement substituted the settlement’s terms for anything that was or could have been claimed as a remedy for the employer’s alleged failures to accommodate the grievor.

22Accordingly, to the extent that the current grievance may be said to claim compensation for alleged adverse health consequences of the conduct complained of in the previous grievance – that is, the alleged failures to accommodate as opposed to the allegedly harassing behaviour that accompanied them – such compensation cannot be awarded in these proceedings. Having not yet heard expert and other evidence about the nature and cause of the grievor’s illnesses, it is difficult to know whether this distinction will be difficult to draw or, indeed, would make any appreciable difference to the remedial relief to which the grievor would otherwise be entitled if the claim survives the timeliness issue and is proven on its merits.

23In short, the only effect that the settlement of the previous grievance has on my jurisdiction with respect to the current grievance is the effect identified in the previous paragraph. The effect of the timeliness issue remains to be assessed, as do the questions whether, in what manner and on what terms that issue will be addressed on a preliminary basis.

Dated at Toronto this 21st day of April, 2010.

Footnotes

Re Enbridge Gas Distribution Inc. and CEPU, Local 975 (2006), 2006 CanLII 93290 (ON LA), 150 L.A.C. (4th) 225, [2006] O.L.A.A. No. 128 (Burkett)
Ibid., paragraph 6.
Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157
Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (Ont. C.A.) at p. 108
This was also so in the proceedings in Parry Sound, as appears from paragraph 60 of that decision, which is the last part of the quote from it in Re Enbridge Gas, supra, fn. 1.
see, Re Alcan Rolled Products Co. and U.S.W.A., Loc. 343 (1996), 1996 CanLII 20444 (ON LA), 56 L.A.C. (4th) 187 (Gray) at pp. 194ff and the awards referred to there.