IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Evans)

Union

and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Sheila Riddell Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Legal Practice Group Counsel

HEARING DATE

June 15, September 17, 2009, January 11, April 23, May 11, May 20, June 10, November 12, 2010, January 28, February 28, April 13, 2011.

Decision

1Darren Evans is a Youth Services Worker with the Ministry. He filed a number of grievances, most of which alleged “personal harassment” as the result of various incidents that occurred at Bluewater Youth Centre over a period of time.

2The hearing into these matters began with the grievor giving evidence regarding the incidents contemplated in the grievances. After four days of his evidence in chief, I met with the parties to discuss possible alternate methods of proceeding. After discussion, the following was agreed:

The Grievor will have one additional hearing date to complete his direct examination.
The parties will make submissions on whether the evidence to date discloses a breach of the Collective Agreement, and if so, whether a remedy beyond a declaration is supported.
The Vice-Chair will issue an interim decision on a without precedent or prejudice basis.
Following the issue of the interim decision, the Union will advise the Board and the Employer as to whether it wishes to continue the arbitration of any of the grievances.
If the Union chooses to proceed, the following limitations on evidence will apply unless otherwise directed by the Vice-Chair:
The parties will complete the cross-examination and re-direct (if any) of the Grievor based on the time restrictions to be set out by the Vice-Chair.
The only other evidence permitted will be an exchange of will-say statements and any supporting documents.
The parties will make final submissions on the grievances.
The Vice-Chair will issue a final decision on a without precedent or prejudice basis.

3It was common ground between the parties that this interim decision regarding the Employer’s motion would not set out all of the evidence to date. It is sufficient that the evidence be highlighted only to the extent necessary to understand my ruling. Although there is no thorough evidentiary review set out in this decision, all of the evidence and submissions were considered in detail.

4In addition to the grievor’s viva voce evidence a number of documents were entered into evidence. Many of these were referred to by the grievor during the course of his evidence. I have also reviewed and taken into account many of these documents.

5According to the grievor’s evidence, the harassment began in 2004. The Board heard considerable evidence regarding Mr. Evans’ various allegations and most involve two or three management personnel. It is fair to say that the grievor was of the view that the management personnel disliked and harassed him with the result of creating a poisoned work environment.

6In 2006, a Forensic Investigation Team was requested to ascertain whether the grievor was harassed. Twelve specific allegations were investigated. A copy of that report was entered into evidence. This document and others were referred to by the grievor during the course of his testimony.

7Toward the end of the grievor’s evidence in chief he testified that he requested and was granted a lateral transfer to Brookside Youth Centre. He said that his wife had an opportunity to take a new job in Cobourg and they have moved and bought a new home. He was of the view that ongoing harassment left him no alternative but to change institutions and that the costs associated with that move are approximately sixty-two thousand dollars, an amount which includes real estate commissions, legal costs, constant travel costs between his two homes, cost of carrying two mortgages as he still has not sold his home in Goderich. It was Mr. Evan’s view that the cause of his move was the ongoing harassment and for that reason the Employer should be ordered to pay these costs.

8For the purposes of this decision it is sufficient to note that the grievor’s grievances are the result of a number of particular incidents. In brief, those situations included:

A refusal of a compassionate leave request;
A scheduled assignment on SIU and sick leave taken after the assignment was not changed;
An ICIT training day wherein an incident involving a pepper ball launcher occurred;
The subsequent requests for incident reports regarding the pepper ball launcher incident;
The grievor’s removal from the ICIT team;
Comments made by a manager to a WSIB employee in response to a query made while investigating a claim;
Use of institutional cell phones;
Employer requests regarding the removal of facial hair.

9Both parties made fulsome submissions regarding this interim ruling. There was a thorough review of the grievor’s evidence to date. It is not my intention to set out these arguments in detail. However, again I want to assure the parties that all of their comments and views have been considered.

10The Employer, in its motion asked this Board to find that on the evidence to date there has been no violation of the Collective Agreement. In the alternative, if any breach has occurred, it is not of the sort that would bring about a finding of significant damages as requested by the grievor. Rather, a simple declaration might be appropriate.

11The Union contended that there has been a course of conduct by various members of management over a sustained period of time that constitutes harassment. It was urged that this conduct represents serious breaches of the Collective Agreement and should bring about significant damages in addition to the losses referred to by the grievor in his evidence.

12After consideration, I am of the view that there have been no violations of the Collective Agreement that would bring about an award for damages as set out by the Union. Further, it is highly unlikely that an award for “replacement of losses” as requested by the grievor would be ordered. I cannot say with certainty there I would find no violation of the Collective Agreement if further evidence is provided. However, it is important to note that I have heard only the grievor’s uncontested evidence and so arguably I have considered the Union’s factual “best case scenario”.

13A number of the grievances before me will most probably fail. For example, two grievances allege unjust or “excessive” discipline. There is no evidence of discipline before me, excessive or otherwise. Neither the grievor’s testimony nor any of the documents reveal an instance of discipline. There has been no suspension, no letter of discipline and no verbal warnings according to the evidence to date. The grievor was of the view that some of the comments found within various Incident Reports constitute discipline. I disagree. The Collective Agreement and the Board’s jurisprudence do not support the grievor’s firmly held conclusions in this regard.

14Another allegation that the Employer violated the Collective Agreement by failing to grant Compassionate Leave would likely not be sustained given the discretionary nature of the provision and the Union’s failure to prove that the denial was in bad faith. In this instance as in others, the grievor contended that because others sought and obtained compassionate leave and he did not, the “differential treatment” constitutes ongoing managerial harassment. Simply put, I have not been persuaded that is the case.

15I am sympathetic to the grievor’s view that he experienced some frustrating and difficult situations while at Bluewater Youth Centre. However, the grievor’s speculations about the Employer’s motives and some of its decisions are insufficient for the finding and remedy he seeks.

16Mr. Evans chose to transfer from Bluewater Youth Centre. He testified that he did so because he felt the workplace was toxic. I accept that he thought he needed to change his place of employment. However, that does not mean that the workplace was poisoned. Neither does it follow that the Employer should be responsible for the cost of the move and other related expenses. Irrespective of whether he moved to Brookside primarily to follow his spouse and family who had recently moved to Cobourg as suggested by the Employer, I do not think the evidence to date supports the grievor’s remedial claim.

17I ask counsel to contact the Board to discuss how to best proceed in this matter.

Date at Toronto this 2nd day of August 2011.

Ontario Public Service Employees Union (Evans) v. The Crown in Right of Ontario (Ministry of Children and Youth Services), 2011 CanLII 60320

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Union