GSB#2008-3994

UNION#2008-0205-0161

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Deprophetis)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Danny Kastner Paliare Roland Rosenberg Rothstein LLP Barristers & Solicitors

FOR THE EMPLOYER

George Parris Ministry of Government Services Labour Practice Group Counsel

HEARING

February 10 & 11, April 21, June 4, July 5, October 7, 2010.

Decision

1Mr. Steven Deprophetis, ("grievor") has filed a grievance dated November 28, 2008. He has been employed as an Employment Standards Officer ("ESO") since March 1992. In essence, the grievance alleges that Ms. Mili New has subjected him to a pattern of harassment and discrimination on the basis of disability since she assumed duties as his manager in June 2008. This decision relates to a non-suit motion made by the employer at the conclusion of the union's case.

2In its recent decision in Re Allin et al, 2008-1407 (Dissanayake), following a review of the authorities, at para 10 the Board described the test that applies in non-suit motions as follows:

"... the ... motion must be upheld if the union has failed to adduce evidence sufficient to support its claim. In assessing sufficiency, the Board must determine whether the union has proven its case on a balance of probabilities, if its witnesses are believed and the benefit of any inferences to be drawn are ruled in the union's favour."

3The union's evidence consisted of testimony by the grievor and a number of exhibits. Therefore, the disposition of this motion depends on whether that evidence meets the standard described in Re Allin.

Grievor's testimony in chief

4The grievor testified that the primary function of an ESO is to adjudicate claims which have not been settled through the intervention of an Early Resolution Officer. The ESO has options on how to proceed in adjudicating a claim. He may decide the claim based on the documentation alone, or following a teleconference with the parties. However, the grievor testified that he preferred to conduct a fact-finding meeting with the claimant and the employer. At a fact-finding meeting, the parties can be represented by legal counsel, although often they represent themselves. The parties may also bring witnesses or submit statements from witnesses. He testified that the process "is the same as here", referring to the hearing before the GSB. He said that it was as "an informal process, where I allow them to tell their story. I sit as facilitator and ask questions and they provide me with documents and evidence". At the end of the meeting, he would render a decision with reasons. If the employer indicates that it would not comply, an order to pay is issued. The grievor testified that once his decision is certified in court, it becomes enforceable, subject to the right of appeal to the Ontario Labour Relations Board.

5According to the grievor, until 2008 the province-wide performance standard was that an ESO should complete 120 files in a fiscal year. In 2008 it was changed to 140. The grievor admitted that in the fiscal year March 2008 to March 2009, he failed to meet that standard. When asked why, he said that in that period he had family issues and medical issues, and added "my position is also that I cannot meet standards when I am being harassed".

6When asked what his medical issues were, he replied that he had difficulty keeping awake while driving and that he also experienced "physical issues, pain, dizziness, eye irritation and general discomfort". He said that these symptoms coincided with his mother's diagnosis with breast cancer in May 2007.

7The grievor testified that until 2007 he attended at his designated office in Hamilton only 2 or 3 times a week. After 2007 his attendance at the Hamilton office declined further because he had less administrative support in the office. Since spring of 2007, unless he had to attend a meeting or training, he worked at home. He said, "That was the arrangement from the time I started. My job description says that I had discretion. There was never any checking as to when I came or left. You get your cases and you complete them as effectively and efficiently as you can." When asked where he obtained authority to work from home, he replied that at the time of hire he was told "we will give you your cases. You have an assigned office with facilities and administrative support. How you choose to use those is at your discretion." He said that while some ESOs preferred to work in the office regularly, others worked exclusively at home or wherever they chose.

8The grievor testified that in 2007 he volunteered to serve on the "ESIS backlog project". He was surprised when his manager at the time, Ms. Bonnie Suhr, informed him that it would entail daily attendance at the Hamilton office. He explained to Ms. Suhr that it made no sense because the work is web-based and can be done from anywhere. He asked whether Ms. Suhr could "accommodate me at the St. Catharines Office'. Ms. Suhr refused, stating that it would result in additional costs. Union counsel asked "you said "accommodated", What was it that you requested?" The grievor replied, "The terms of reference for the project said nothing about having to attend at the Hamilton office. So can I be accommodated in St. Catharines. When she said "no", I said that I won't charge any expenses. She still refused. Then I said that since you are changing the terms of reference I won't continue on the project. Then she said that it was no longer voluntary, that now it is work assigned". The grievor testified that Ms. Suhr then asked him whether he had any other reason for wanting to work at St. Catharines. He explained that he wanted to be close to his sick mother, that he had difficulty keeping awake while driving to Hamilton, and that because the area where his work station was located in the Hamilton office was noisy he had difficulty concentrating. Ms. Suhr agreed at that point that the grievor could work out of the St. Catharines office. Since then he attended at Hamilton only once or twice a week at the most, and did most of his work at St. Catharines or at home.

9The grievor testified that he had attributed his fatigue issues to aging. However, his family physician referred him for testing by a specialist. The testing was done, but he was not informed of the results. While the doctor mentioned of hiatus hernia and a breathing blockage, he was not told that he suffered from anything other than stage 2 hypertension.

10The grievor testified that until June 2008 he continued to work at St. Catharines or at home, with only occasional attendance at the Hamilton office. When Ms. New replaced Ms. Suhr in June 2008, she scheduled individual meetings with every ESO in the Hamilton office. When she met with the grievor on July 16, 2008, she told the grievor that she had looked at some of his decisions and that he was using words too sophisticated for the audience. She provided him with a ministry manual on "How to write". The grievor testified that he found that strange because the manual did not apply to "legal writing" and no other ESO had even seen it. He told Ms. New that he disagreed with her, and that his audience was intelligent.

11At this meeting, Ms. New also told the grievor that she had discovered that he was not attending at his designated office in Hamilton regularly, and told him that he should be there at least two days a week. The grievor pointed out to Ms. New that he was a "field officer" and did not attend at the Hamilton office unless he had a fact-finding meeting scheduled. According to the grievor, Ms. New commented "Well Steven, we never get to see your beautiful face", and repeated that she expected him to attend the Hamilton office at least two days a week. The grievor testified that he did not know what to make of it, because Ms. New was a friend and a former colleague.

12According to the grievor, Ms. New also told him that another ESO who had more seniority had asked for the work cubicle which the grievor was occupying and that he should switch cubicles with her. The grievor told her that former Acting Manager Mr. Rick Hughes had assigned that cubicle to him and that the other cubicle had no window and was in a noisy area which would make it uncomfortable for him. When Ms. New insisted, the grievor said "Well, if it pleases you, then I'll do it". Ms. New responded, "That's not going to please me. What pleases me is my son".

13According to the grievor, during this meeting he told Ms. New that lately he had significant trauma in his life and that he also had some health issues. Ms. New commented to the effect "so you say". The grievor understood from that comment that Ms. New was not believing what he said. He asked Ms. New whether she wanted more details about his problems. She responded, "anything you say will be confidential". The grievor proceeded to relate information about some "family and personal matters", which he testified were "not completely known in the office at the time". When he told Ms. New that he had hypertension, she responded that she also suffered from hypertension, and said that now she was the manager of this posh office, and commented, "Isn't that lovely". Ms. New did not respond when the grievor told her that he also suffered from "breathing blockage" and mentioned "hiatus hernia". When the grievor mentioned that his mother had passed away after a year long battle with cancer, Ms. New responded that her mother who lived in the UK also suffers from a serious illness, and that she visits her from time to time. From this conversation the grievor felt that Ms. New was trivializing his problems by suggesting that she had dealt with similar problems successfully.

14The grievor testified that he also mentioned to Ms. New that his daughter had been diagnosed with MS at age 16. Ms. New commented that another ESO, who she named, also suffers from MS. The grievor testified that he was distressed that Ms. New, who had assured him that any information he provided would be kept confidential, had divulged to him another ESO's illness. He felt that Ms. New was belittling the challenges he faced.

15Ms. New also informed the grievor that "a prosecution initiative" is to be introduced and inquired whether he would be interested in being its "lead". He initially told her that he was not interested because he did not believe that necessary resources would be made available. However, when Ms. New assured him that she would take care of that, he agreed. The grievor felt that by saying "all these disconcerting things", Ms. New was attempting to get him to agree to be the lead of the prosecution initiative.

16The grievor testified that Ms. New suggested that he should consider taking a leave of absence without pay to deal with the challenges he faced. He responded that he could not afford to do that. At the end of the meeting, Ms. New advised him that there was no formal accommodation in place for him based on his disclosure, and that she was "free to ignore that disclosure". He felt that she was doing that for malicious and nefarious reasons. She also repeated that she expected him to attend at the Hamilton office at least twice a week. The grievor replied that he would try his best to do that. The grievor testified that when he left the meeting on July 16, 2008, he expected that he would be named the lead of the prosecution initiative. However, during a program meeting held at Vineland in August 2008 it was announced that another individual had been appointed. The grievor testified that he was not particularly upset about that.

17The next event was in August 2008, when Ms. New sent an e-mail requesting a meeting with him to discuss a complaint she had received from a claimant. The grievor testified that he could not understand why he had to come to Hamilton to have that discussion, when it could have been dealt with by e-mail. When they met, Ms. New informed him that a claimant had complained that he had taken an excessive period of time to render the decision. The grievor explained to her that the particular file comprised of five complaints, that the claimant kept raising new issues, and that he had to wait for responses from the employer, and that in any event the decision had been rendered. Ms. New responded that if the decision had been rendered, then that was the end of the matter. The grievor testified that he could not understand why Ms. New had to question him, because a copy of the decision would have been in the file, and "it was well known in the office" that this particular claimant had filed a previous claim raising the same issues and had caused much disruption in the office.

18In October 2008 Ms. New announced that she would be conducting performance reviews for all ESOs. The grievor was given a date and time in October. Then he was advised that due to a conflict in Ms. New's schedule that appointment has to be cancelled, and he was given an appointment for November 27th 2008. The grievor testified that he happened to be in the Hamilton office at the time of his original appointment and was surprised to see that Ms. New was meeting with another ESO. The grievor testified that at the performance review meeting on November 27, 2008, Ms. New "accused him" of not attending the Hamilton office two days a week as directed, and told him that she was now directing that he attend the Hamilton office "five days a week, nine to five", and that if the grievor wished to leave early, he had to obtain her permission. She also stated that before the grievor closed a file, it must be approved by Regional Program Coordinator ("RPC") Mark Shurwin. He was told that these requirements were imposed because he had ignored her direction that he attend the Hamilton office two days a week, and because of his "lack of performance". When the grievor asked what she meant by "lack of performance", Ms. New explained that she had reviewed his work on ESIS and his Bell Canada calling card receipts. She stated that when she examined the times the grievor had swiped his card in and out, she could not account for eleven days in August. The grievor felt that she was suggesting that he had done no work on those eleven days. He told her that if she wanted to know what he did on those days, she should have asked him in August, and not wait until November, and suggested that she should get a IT person to investigate what work he did on the eleven days by examining his computer. Ms. New responded that that was unnecessary and that she was satisfied that the grievor was not managing his time properly. The grievor told her that he believed that the eleven days in question included some vacation he took, and also coincided with work he did on a complicated case involving hundreds of pages and significant legal research. Ms. New did not respond to his explanation, but told him that he had failed to meet the target of completing 140 files during the fiscal year under review, and that she was most concerned that he was denying 47 percent of the claims he decided. She told him that his rate of denials was "way too high and had to come down". She proceeded to review some specific claims the grievor had denied, and stated that they were wrongly decided. The grievor told Ms. New that she was wrong and not him. Ms. New closed the meeting stating that the grievor would be receiving a performance appraisal in which all of the concerns discussed would be documented. The grievor testified that he pleaded with Ms. New not to do that, that micro-management was unnecessary, and that he would try to do better. However, the same day, the grievor received an e-mail from Ms. New, with a mid-year performance appraisal and an ESIS file closure report. The e-mail included the following:

I am confirming the strategy that we will now adopt to resolve some of the performance issues that we have discussed today.

As of tomorrow 28th November 2008 you are expected to attend the office every day between 9-5, each file will be QA'd by the RPC before closure. Please advise Mark when the files are ready for closure, he will in turn advise you when you can mark it as closed in ESIS.

Confirm with me before attending any premises of employers/employees.

19During testimony the grievor reviewed some of the negative assessments and comments set out in the performance appraisal and explained why he felt that those were not reasonable. He was particularly critical of Ms. New's position that he had not followed procedure that required that files be closed once the decision had been rendered. He testified that a file can only be closed when all of the work on it is complete. After a decision is rendered, he had to send it to the parties by Express Post, and obtain and file confirmation that it has been delivered. If it is not deliverable, he had to search for the party and serve it. He did not close a file until it was confirmed that the decision had in fact been received by the parties because until then the work on the file was not complete. The performance appraisal also set out that a quality assurance review had revealed that the grievor had not followed proper policy and procedure in the manner he dealt with four specific claims. The grievor disagreed with Ms. New's criticism and explained why it was appropriate to act as he did in each case.

20With regard to the expense claim, the grievor testified that he included all of the information required to approve an expense claim, but the Director of Operations, Mr. Don Hall, requested more information. He provided that information also. Yet, the claim remains unpaid. He included the denial of the expense claim in the instant grievance because he saw it as part of Ms. New's harassment.

Grievor's testimony in cross-examination

21The grievor agreed that since 2008, Administrative Assistant Ms. Elena Lazar was responsible for checking all expense claims for accuracy and completeness, and that if any information was missing she would contact the employee. When employer counsel suggested that Ms. New would testify that she had no involvement with the denial of his expense claim, the grievor replied that all he knew was that management approval was required for all expense claims. He agreed that he did not know whether the authority to approve expense claims had been delegated to the Administrative Assistant, and that no one had told him that Ms. New was responsible for the denial of his expense claim.

22The grievor agreed that he first raised with Ms. Suhr his concerns about commuting to Hamilton on April 5, 2007, after she directed him to attend at the Hamilton office five days a week to work on the backlog initiative. He testified that Ms. New at the time was the manager in charge of the backlog initiative, and that she supported his position that he could perform that work at the St. Catharines office. However, Ms. Suhr would not agree.

23The grievor agreed, when confronted with e-mails he had sent to Ms. Suhr, that in order to convince Ms. Suhr that he should not be required to work at the Hamilton office, he gave her only four reasons. First, that the area where his work station was located at the Hamilton office was noisy, and it was difficult to concentrate. Second, that he had "family obligations to retrieve my children who attend out of bounds schools." Third, that he had "elderly and sickly parents who require care and assistance on a regular basis and being in close proximity to them is essential". Fourth, when he spent significant time in the Hamilton office he tended "to develop eye strain, soreness, irritation, head aches, dry mouth and a general lethargic feeling", and that he had "a distinct feeling I may have been suffering from a form of sick building syndrome". The grievor confirmed that after he submitted these reasons, Ms. Suhr compromised, and agreed that he could work two days at Hamilton and three days at St. Catharines. The grievor testified that he did not know what restrictions on his ability to do the duties of an ESO, if any, resulted from his illnesses. Nor did he provide the employer with any medical evidence that he had any such restriction. The grievor agreed that up to the time of the filing of the instant grievance on November 28, 2008, he had not been medically diagnosed with any illness, and that he did not provide Ms. New any medical evidence supporting a need for accommodation. He testified that he did not feel that was necessary since he was being accommodated as a result of Ms. Suhr's agreement that he could work 3 days at St. Catharines.

24The grievor agreed that at the meeting on July 16, 2008, Ms. New told him that no formal accommodation was in place for him, but denied counsel's suggestion that she also told him that if he had a need for accommodation he should provide medical substantiation. He agreed that at the time, no medical diagnosis had been made that he suffered from any illness and that the information he had provided was based solely on a "self-diagnosis". When asked why he did not provide "medicals" on July 16, 2008 when Ms. New directed him to report to the Hamilton office daily, the grievor replied "Because I thought she was doing it for malicious reasons". The grievor testified that while Ms. New may have intended to do so, he did not recall her asking for medical substantiation for accommodation at the performance review meeting on November 27, 2008 either.

25Employer counsel referred to a medical note dated February 3, 2010 from the grievor's doctor which reads:

This patient has a medical condition which restricts his travelling time to no more than 50 kilometres daily, although exemptions could be made for certain emergencies. This restriction has been in place since December 2008 to the present time and will continue until further notice. Steven has been accommodated at the St. Catharines office since 2008.

The grievor agreed that this note covered a period subsequent to the filing of the instant grievance, and that this was the only medical substantiation he had provided to the employer at any time.

26The grievor testified that when he received the performance appraisal he felt betrayed, that it was not sincere, and that Ms. New had been "enormously unfair and offensive to say the least". He disputed all of her negative comments as "exaggerated, false, untrue and a fabrication". He testified that he was particularly distressed about Ms. New doing a case by case review of his work, by her conclusion that some cases were wrongly decided, and by her criticism that he had denied 47 percent of the claims. He testified that he spoke to Acting Director, Mr. Dino Mozzon about his concerns and told him that it was an attempt by Ms. New "to harass and interfere with my statutory obligation to decide cases".

27The grievor agreed that as an ESO, it was a regular part of his job to do investigations, demand production, execute search warrants, issue tickets if orders to pay are not complied with, and to prosecute under the Provincial Offences Act. He was aware that RPCs review random files handled by every ESO for quality assurance. Counsel pointed out that in the performance appraisal it is explicitly stated that the irregularities in the four files were revealed as a result of quality assurance. The grievor stated that he did not know whether that was true, because Ms. New had told him that she went through his files personally. He stated that quality assurance is usually done for training purposes, but that in this case it was done "as a punitive measure". He agreed that while Ms. New had told him that in the future all of his files had to be reviewed by a RPC before closing, that never happened and that his files were reviewed for quality assurance like any other ESO's files.

28Employer counsel asked the grievor what he meant when he testified that Ms. New had taken the position that he had no formal accommodation in place, "for malicious and nefarious reasons". The grievor explained that he had described to Ms. New his medical issues. Yet she told him that she was trying to determine whether "any" accommodation was needed. From this it was clear to him that she did not believe what he told her. When counsel asked whether it would have been different, if Ms. New had requested medical substantiation for the illnesses he had mentioned, the grievor asked why Ms. New should make such a request when the previous manager did not. He said, "I can't see how a new manager can say "I don't care what the other manager did, I want to do it my way". She had made up her mind irrespective of what I had to say".

29When questioned with reference to documents filed in evidence, the grievor agreed that during the relevant period the production standard of 140 files per fiscal year was applicable to him and that he had not met that standard. However the grievor testified as follows "But they keep changing. I don't pay attention to these numbers. Also it depends on the type of file. What I got were mostly priority cases. They have to take that into account. The set target assumes regular files." Counsel asked whether he told management that he could not meet the target because of the type of files assigned to him, the grievor replied, "I did not because I don't care about the type of files assigned to me. I always try to do my best. They should take that into account".

30Employer counsel suggested to the grievor that Ms. New did not at any time tell him that he had to meet certain numbers of claims allowed or denied. The grievor agreed and said that what she told him was that his denials were "too high and had to come down". Counsel reviewed with the grievor one of the files Ms. New had discussed during the performance review meeting, where Ms. New was critical of him because he considered that claim to be settled despite the absence of a settlement in writing. The grievor testified that Ms. New was wrong because the procedure manual did not require a settlement to be in writing. When asked whether he reviewed the manual after the meeting, he replied "I probably did". When counsel said, "If you found that Ms. New was wrong, you would've shown the manual to her", the grievor replied, "she gave me no options". When counsel stated that the manual has not been put in evidence to show that Ms. New was wrong, the grievor agreed, but added "The manual did not say what she said. I hope my lawyer puts it in".

31With regard to the proper procedure on when to close a file, the grievor stated that it was his position that a decision is not "rendered" until he receives confirmation that the decision had in fact been received by the parties. The following exchange occurred: Question: "So if an employer is out of the country and had not received your decision, then you haven't rendered the decision"? Answer: "yes". Question: "And if he never receives it, the decision is never rendered?" Answer: "Yes. Maybe I misunderstood it."

32The grievor agreed that an ESO is required to carry out duties "in accordance with the ESA and current policies and procedures as set out by the Director of Employment Standards". Counsel asked the grievor how a manager can ensure that ESOs comply with that requirement without reviewing their work and pointing out areas of concern. The grievor replied that a manager is entitled to do that, but stated that Ms. New went beyond that. He said "She can give her opinion. But she told me that her opinion was right and mine was wrong. First of all, to be right, she must point to a number or page in the procedure that I didn't follow. She didn't do that. She just said that I didn't follow procedure". When counsel suggested that the grievor could have researched the procedure manual or the Act, and proved that Ms. New was wrong, the grievor replied that he tried to explain that he was right, but Ms. New was not interested.

DECISION

33I note here that during cross-examination employer counsel challenged the grievor's testimony at various points and put him on notice that employer's testimony would be to the contrary. However, in accordance with the standard applicable to non-suit motions, for the present purposes I accept the grievor's version of facts as true.

34It should also be noted that the instant grievance does not allege a failure to accommodate per se. The Board was advised that the grievor had filed a separate "accommodation grievance". Following discussions as to whether that grievance should be heard together with the instant grievance, the parties agreed not to do so. Therefore, the human rights aspect of the instant grievance is limited to an allegation that Ms. New discriminated against the grievor on the basis of disability by challenging an accommodation that he had arranged with his previous manager, before allowing that arrangement to stand.

35The grievor has made a number of allegations which he claims constitutes an improper exercise of management rights by Ms. New intended to harass him. The grievor alleges that Ms. New discriminated against him because of his disability by challenging an accommodation allowed by his previous manager, and that this also formed part of her pattern of harassment. The grievance also encompasses a distinct allegation that Ms. New contravened administrative law principles by interfering with the grievor's judicial authority under the Employment Standards Act.

36In Re Gareh, 1665/98 (Brown) the Board discussed the test to be applied in deciding a motion for non-suit, and how it differs from the decision-making process the Board engages in after the completion of the whole case. The Board at p. 7 wrote:

In the case at hand, I must decide the motion for non-suit as well as serve as the trier of fact. At this stage, my task is to determine whether the evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence.

It is not logically possibly to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether I could rule that the union has proven its case on the balance of probabilities, if its witnesses are believed and it is granted the benefit of all reasonable inferences. The decision-making process on a motion for non-suit cannot ignore the standard of proof, but this process entails an application of that standard which differs markedly from the way it would be applied after both parties had closed their case. At that point, in determining whether the union had proven its case on the balance of probabilities, I would scrutinize the credibility of witnesses, and I would not draw inferences so as to resolve doubts in favour of the union, because the benefit of doubt should not be granted to the party bearing the onus of proof.

37Two principles emerge from the foregoing passage. First, it is the evidence, and not the allegations, that must be "sufficient" to lead the Board to rule in favour of the union. Second, in determining the sufficiency of the evidence in a motion for non-suit, the applicable standard of proof continues to be "on a balances of probabilities". The difference is that in non-suit motions the credibility of the witnesses are not assessed and their testimony is accepted as believable. In addition, any reasonable inferences arising from the evidence are drawn in favour of the union.

38In support of his allegation of harassment and discrimination, the grievor has adduced evidence with regard to the following: Ms. New questioning him about not regularly attending at the Hamilton office; trivializing and/or not believing his information about personal and health problems he was facing and challenging the arrangement Ms. Suhr had agreed to; questioning him about a claimant's complaint about delay; criticizing his work performance and issuing a negative performance approval; and the denial of his expense claim.

39In this decision I have reviewed the union's evidence on each of those allegations in considerable detail. That evidence reveals that the grievor considered himself to be a very competent and hardworking conscientious, ESO. As such he did not consider it necessary or appropriate for the manager to closely monitor or supervise his work. He felt that his previous manager trusted him to diligently and efficiently carry out his duties without the need for close supervision. He resented the fact that Ms. New did not extend to him that same flexibility or trust. He felt that she was "micro-managing" him. This is highlighted by his testimony to the effect that Ms. New could not ignore how the previous manager managed him and to do it her own way. He testified that "different managers could not have different rules on how to manage". The grievor also strongly believed that he had followed procedure correctly and that Ms. New was wrong in criticizing him. He also felt that before directing him to do something differently, Ms. New was obliged to point out that his way was contrary to a specific provision in the procedures manual. He was convinced that she was fabricating criticism of his work for malicious and nefarious reasons.

40The grievor testified that he followed procedure correctly as set out by the Director, and that it was Ms. New who was wrong. However, his own testimony indicates that he followed procedure only so long as he agreed with them. For example, as the evidence set out at para.29 above indicates, he did not consider the performance standard of 140 completed files per year to be fair, because it did not take into account the complexity of particular files. He felt that as long as an employee was doing his best, numbers should not matter. Therefore, he did not pay attention to numbers set out by management.

41While I have no reason to doubt that the grievor believes that Ms. New was motivated by malicious and nefarious reasons, his belief is not a sufficient basis for me to draw the inference that Ms. New harassed or discriminated against the grievor. His subjective belief, however strongly and sincerely held, is not proof that he was targeted by Ms. New for harassment or discrimination. There is no doubt that Ms. New and the grievor disagreed on how some functions are to be carried out. Assuming for the moment that I agree that in fact the grievor had followed the procedure as laid out by the Director, and that Ms. New was wrong in her criticism of the grievor's work performance, that still would not be sufficient evidence of harassment or discrimination. Nor is there any evidence that the various illnesses the grievor was suffering from, i.e. his disability, had anything to do with how Ms. New treated him. The evidence could at most lead to a conclusion that as a manager Ms. New had no understanding of the proper procedure as laid out by the Director. That would go to her competence as a manager, but is not evidence that she targeted the grievor for harassment or discrimination. In this regard I note that there is not an iota of evidence that there was any history of conflict or bad blood between Ms. New and the grievor. To the contrary, the grievor testified that they were former colleagues and friends. The evidence is that upon assuming duties as manager, Ms. New met individually with all ESOs to discuss their work performance, not only the grievor. When she met with the grievor, she told him that she had noticed that he was not regularly attending at his office in Hamilton and asked him for an explanation. She was not convinced following the discussion that sufficient grounds existed for exempting the grievor from the normal requirement that employees must attend their own office. There is no evidence that Ms. New allowed any other ESO such an exemption either. The evidence that a new manager wanted to find out why one ESO was not complying with the normal requirement of attending one's designated office on a regular basis is not evidence of harassment or discrimination. While a more lenient and trusting manager may have accepted the grounds offered by the grievor, particularly his self diagnosed ailments, does not make Ms. New's conduct malicious or nefarious. This is more so because after "challenging his accommodation", as the grievor put it, Ms. New ultimately did not take away his exemption. He was allowed to continue with the arrangement the previous manager had agreed to.

42The grievor's concept of proper management is demonstrated by his testimony about Ms. New's meeting with him about a complaint a claimant had made that he had taken too long to issue his decision. In his mind, that was part of Ms. New's pattern of harassment. However, there is no evidence that the grievor was in any manner sanctioned as a result of the complaint. All Ms. New did was inquire into it. When the grievor explained that the claim in question was complex and involved significant legal research, and that he had issued the decision within 9 months, Ms. New went no further. This evidence, when objectively viewed, simply cannot give rise to any suggestion of harassment. In fact, it would have been dereliction of management responsibility if Ms. New had ignored a complaint lodged by a claimant without making any inquiry. The evidence also indicates that the grievor did not consider that he was obliged to follow management policies or directives if he was of the opinion that they were unfair or made no sense. However, it is the employer's right to give directions to employees. As long as such directions are not contrary to the collective agreement or some other law, it is not open to an employee, and indeed it is not open to this Board, to overruled the employer, based on fairness or what makes sense.

43I also conclude that the union has not adduced sufficient evidence that could reasonably lead to a conclusion that there was any harassment/discrimination on Ms. New's part, in the manner she carried out the grievor's performance appraisal. Appraisals were done for all ESOs by Ms. New. There is no evidence that the grievor was the only ESO who had negative assessments. There is no doubt that the grievor strongly disagreed, and it is fair to say felt insulted, by Ms. New's negative assessment of his performance. In almost every case, the disagreement stems from the different interpretation or understanding between them as to what the proper procedure was. The mere proof that Ms. New's interpretation of procedure was incorrect and the grievor's was correct, by itself would not satisfy the onus the union has to prove its allegation of harassment. That would necessitate an inquiry into Ms. New's motivation in making incorrect criticism. However, the difficulty with the union's case is that there is no evidence to establish that Ms. New's interpretation/understanding was wrong to begin with. While reference was made to a "procedure manual", it was not introduced into evidence. Therefore, there is no evidence, as to what the manual stipulates on any of the disputed procedures, or that Ms. New's criticism was inconsistent with its provisions. The only evidence I am left with is that Ms. New and the grievor had different understandings of what the procedure ought to be. That is not a sufficient or reasonable basis to draw the inference the union wishes me to draw.

44The same reasoning applies to the denial of the expense claim. While the grievor testified that he submitted "all information required for approval", there is no evidence as to what information he submitted or what was required to be submitted by policy. Assuming that Ms. New was responsible for the denial of the claim, (which the employer denies) therefore, there is no evidence which would allow a conclusion that she was not justified in denying the claim, leave aside that she did it for some malicious reason.

45Whether the grievor sought accommodation based on a disability and whether Ms. New complied with the employer's duty to accommodate is the subject of a separate grievance which is not before me. I find, however, that the evidence as to the interaction between the grievor and Ms. New with regard to his illnesses, particularly her questioning of the grievor about not attending the Hamilton office regularly, is not a sufficient basis for concluding that Ms. New harassed the grievor or discriminated against him because of his disability. What it does suggest at the most is that Ms. New did not treat the grievor's description of his health issues based on a self-diagnosis seriously, and that at the time she was not convinced that his health issues (or his other personal issues) warranted a continuation of the arrangement he had with his previous manager. As a manager, she was entitled to satisfy herself that continuation of the arrangement was justified. It cannot been seen as harassment or discrimination.

46The union relies on the evidence on the alleged "interference with judicial authority" of the grievor as supporting its harassment allegation. In addition, the union claims that Ms. New acted contrary to administrative law principles relating to natural justice. I have concluded that the union has not established a prima facie case on either basis. The grievor testified that the meetings he held with claimants and employers to be comparable to hearings before the Grievance Settlement Board. Union counsel conceded that an ESO is not the same as a Vice-Chair of this Board. However, he submitted that just as it would be improper for the chair of this Board or an administrator to express concern about a Vice-Chair's ratio of grievances allowed/dismissed, it was improper for Ms. New to have done so in relation to the grievor's decisions.

47While the union asserted that the grievor exercised "judicial authority", no legal authority was cited, and no legal submission made, in support of that proposition. The evidence does establish an ESO decides the merits of claims under the legislation. However, the evidence also is that an ESO may decide a claim in one of many different ways. The decision may be based on a teleconference or even on documentation only. A significant part of an ESO's job is to investigate. An ESO takes initiatives such as obtaining and executing search warrants, and seizing documents. He visits employers' and claimants' premises to meet with them. He issues tickets or fines, and acts as prosecutor. The grievor testified that he considered himself to be a "field officer". These duties, which the grievor admitted under cross-examination were a regular part of his job, are not typical of judicial or quasi-judicial positions. Indeed, they are inconsistent with such positions. In the absence of any legal authority, I am not in a position in the circumstances, to find that an ESO exercises "judicial authority" in the traditional sense that phrase is understood.

48In the circumstances therefore, I find that if the Director of Employment Standards has set out particular procedures that ESOs are expected to comply with in their decision-making process, it would be appropriate for a manager to point out any non-compliance. To illustrate, if the procedure requires that no settlement is to be accepted unless it is in writing, it would be appropriate for a manager to raise with a ESO a non-compliance. I do find it problematic, however, that a manager would direct an ESO that his rate of denials is too high and had to come down. I agree with the union that such a direction would force the grievor to decide cases differently than he otherwise would and that insisting on quotas of claims allowed and denied, can preclude determination of each claim on its merits.

49My agreement with the union, however, that Ms. New's criticism and directions in this regard were inappropriate, does not assist the union. The union has not been able to point to any law, legislative or common law, that may have been contravened as a result of Ms. New's direction. While the evidence may establish that Ms. New gave improper directions in exercising her managerial authority, that does not lead to a finding, in the absence of some evidence, that in doing so she acted maliciously to harass the grievor. Nor does the evidence lead to a finding that she violated any legal right the grievor had, under the collective agreement, legislation or common law. Again, the evidence would only go to her competence as a manager.

50It follows from the foregoing findings that the union has failed to make out a prima-facie case in support of the grievance, which the employer is required to defend against. Therefore, the motion for non-suit succeeds and the grievance is dismissed.