GSB#2008-3753

UNION#2008-0502-0019

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Louis)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Susan Munn Ministry of Government Services Labour Practice Group Counsel

HEARING

May 14, 2012.

Decision

1This grievance alleges that the grievor was subjected to racial discrimination at the hands of her co-workers. She says that she reported the situation to her manager, her director and to human resources personnel, but no action was taken. The Union says that there were violations of articles 2, 3 and 9 of the Collective Agreement.

2The Union has closed its case. The Employer introduced a motion to non-suit the grievance, and the parties argued their respective positions.

3The standard to be applied in determining a non-suit motion is set out in Re Allin GSB 2008-1407 (Dissanayake) at paragraph 10, which reads in part as follows:

. . . Thus the instant 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 the balance of probabilities, if its witnesses are believed and the benefit of any inferences to be drawn are ruled in the union’s favour.

4Vice-Chair Dissanayake reached that summary after reviewing the Board’s decisions in Re Whan GSB 2003-3446 (Dissanayake) and Re Gareh GSB 1998-1665 (Brown). There are other observations from the cases that are helpful. These include that the test is whether some evidence exists to support the claim that requires an answer or explanation from the other side, viva voce evidence as well as documentary evidence must be considered and where a non-suit motion is granted a written decision with reasons will follow. However, where it is dismissed, no reasons will be given.

5The grievor gave evidence as to the facts set out above and her physician testified as to the impact on her health.

6Having regard to all of the evidence given to date, and the submissions of the parties, I am satisfied that the employer’s non-suit motion must fail. The union’s evidence is sufficient to prove 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.