GSB#2010-1756

UNION#2010-0616-0027

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Labelle)

Union

• and -

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

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Caroline Cohen Ministry of Government Services Labour Practice Group Counsel

HEARING

May 10, 2011.

Decision

1This award deals with the preliminary objection of the Employer to the content of the grievance before me. Specifically, it takes the position that the Union has attempted to expand the scope of the grievance by adding allegations against a co-worker of the grievor and harassment by Deputy Superintendent following an incident involving alleged improper handling of an inmates mail.

2The grievor, Carolle Labelle, filed the following grievance dated September 3, 2010:

I grieve that I have been discriminated against, harassed and bullied by management in the workplace. I also maintained that the actions of management have adversely affected my health. I therefore grieve under articles 2, 3 and 9 of the collective agreement as well as Bill 168it and any other articles, policies and legislation that may apply.

3At a meeting on September 15, 2010, the allegations of harassment in the grievance were discussed and summarized in a letter from the Employer as follows: the refusal by the Employer to transfer two inmates who had threatened the grievor; forcing her to work in an area where these inmates were housed; harassment by former Acting Deputy Superintendent Doug Houghton through various letters and e-mails.

4In preparation for the hearing, the Union forwarded a document containing the particulars it intended to rely on and the remedies it intended to request from the Board. The first two paragraphs stated that the proceedings arose from an individual grievance which alleged that the Employer harassed the grievor by permitting a co-worker to bully the grievor and through the direct actions of management staff. Paragraphs 3 to 35 relate to various allegations of bullying and harassment by Rose Beauchamp which, it was said, management failed to remedy. Those allegations began in 2008 and continued to February 2011 when the grievor went off work on sick leave.

5Paragraph’s 36 to 79 deal with the allegations of harassment by management. It is entitled Subject # 2 – Threats by Inmates and Management’s failure to Protect and Accommodate the Grievor.

6Paragraph’s 80 to 89 are entitled Subject # 3 – The inmates Mail Incident and deals with a work performance issue that resulted in a letter of counseling in March of 2011.

7Ms. Cohen, for the Employer, takes the position that these new particulars are entirely unrelated to the issues raised in the grievance. They were never properly advanced through the grievance procedure and the Employer has not had an opportunity to respond to them.

8Ms. Letton, for the Union, takes the position that the grievance alleges harassment and discrimination and states that the Employer’s actions have affected her health. The Employer’s failure to deal with their issues has had a direct effect on her health and the Employer has been aware of that for some time. It is a component of the harassment the grievor has complained about and is not unrelated to the facts giving rise to the original grievance.

REASONS FOR DECISION

9Since there is so little time before we are scheduled to reconvene the parties have asked for a quick response. For that reason I have not repeated all the submissions or referred to all the cases law presented at the hearing. I have, however, fully read and considered them in arriving at my decision to allow the Union to proceed with the particulars of the incidents involving Ms. Beauchamp.

10The Employer has been aware since 2008 that the relationship between Ms. Beauchamp and the grievor has been problematic and, in the grievor’s view, has failed to respond in an appropriate manner. The particulars, which have yet to be proven, show that in the grievor’s opinion the Employer has discriminated against her by refusing to recognize the difficulties her relationship with Ms. Beauchamp have had on her ability to do her work. While I agree it does not seem to have been part of the discussion at the Step 2 meeting, the particulars appear to indicate there has been much discussion in the past and some attempts to resolve the problem with no success. In my view the particulars about the Employer’s approach to the problems between the grievor and Ms. Beauchamp are not entirely unrelated to the grievance but are a component of the grievor’s allegations and can form part of the Union’s case.

11Similarly, the issue of the improper handling of an inmate’s mail, on its face, appears to be a distinct issue of work performance which, in the normal course of events would not be grievable. Only if the grievor can show that the Employer’s actions were the result of discrimination or harassment does it become an issue under her grievance. In order to answer that question, I will have to hear the evidence.

DECISION

12For the above reasons the Employer’s request to strike section 1 and 3 of the Union’s particulars is denied. We will reconvene the hearing on the dates already set.