GSB#2008-3694

UNION#2009-0546-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Williams)

Union

• and -

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

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Kevin Dorgan and Suneel Bahal Ministry of Government Services Labour Practice Group Counsel

HEARING

April 27, September 20 and October 21, 2011.

Decision

The Proceedings

1In this matter the Union alleged that the Employer caused various breaches of the collective agreement in holding a “Staff Learning Day” on December 4, 2008. The issues narrowed to the single allegation that the Employer was in violation of the Human Rights Code in its treatment of the grievor, hereafter Sharon Williams, in regard to her participation in the Staff Learning Day. At the close of the Union’s case, the Board invited submissions on whether there was a case for the Employer to answer. This decision deals with that issue. In the result, the grievance is dismissed, as the Union did not make out a prima facie case.

The Evidence

2The grievor was a caseworker with the Ontario Disability Support Program, part of the Ministry of Community and Social Services. She was employed at the 1140 Burnhamthorpe Road office at the material time. Effective in or about December 2007 the grievor’s hours of work were accommodated to assist her in caring for an adult child. Her hours of work were set at 7:30 a.m. to 4:00 p.m.

3The Central West Region of the Ministry sponsored an annual Staff Learning Day. In 2008 it was scheduled to take place on December 4, 2008 at the Mississauga Living Arts Centre. It is a mandatory session. The grievor’s manager was Dave Schottmann. On Monday November 17, 2008 he sent the following email to his staff:

Hi Everyone,

According to the attached memo, A communication to all staff will also be sent in the near future. I am not sure if this happened as I did not notice a memo to all staff.

Anyway, as in previous years the Staff Learning and Recognition day is a mandatory event and as we do not require office coverage you should all plan to attend.

What I will require ASAP is any dietary requirements you have.

For those traveling by bus, I need to know which bus pick up location you will use.

Thanks,

Dave

4The grievor, who was a Union Steward at the time, replied on November 19, copying Carole Durrant, another Steward and LERC Co-chair and Lorne Woodhouse, the Local Union President. The reply was as follows:

Dave,

Can you please advise management’s travel and time plan? That is, all staff who are traveling from further than1140 may be either leaving or returning in excess of their 7.75 hours – depends on the hours of the bus travel.

Also, for staff who are headquartered at 1140 Burnhamthorpe, can you please advise what management is approving for travel – that is, if people are expected to attend to their office and then get to the meeting location, and how management will be arranging transportation for those who do not wish to drive their personal automobiles.

Thanks,

Sharon

5The grievor testified that she got no response to this email. She also said that on December 2 staff received an email generally describing the event. Also that day, two managers called staff to a meeting known as a “huddle”. At that time management made a number of announcements pertaining to the event, including a change of working hours from 9:00 a.m. to 5:00 p.m. Also, staff at the Burnhamthorpe office were asked to report to the office before and after the event. The grievor said that the latter requirement was said to be “the Union’s fault”.

6On December 3, 2008, one-half hour before the grievor left for the day, she sent the following email to five representatives of the Employer and copied it to two Union Stewards:

Subject: Travel – Collective Agreement

We have conferred with our Local 546 pres on the above item. We are writing only because persons were advised yesterday that without exception scheduled hours of work had been changed for this Thursday.

We are advised of the following:

That a change of work hours (shift scheduling) can be effected, under Article 5, with 120 hours of notice. Otherwise, “he or she shall be paid time and one half (1 ½) for the first eight hours worked on the changed shift…”

Persons who have accommodated hours are accommodated under Human Rights Legislation, not the collective agreement, and therefore the above does not apply.

Regards,

Sharon

7The grievor testified that she was getting desperate about the change in her hours and included the last paragraph to remind someone that she had accommodated work hours. She hoped that Ms. Braybrook, the human resources consultant copied on the email, would follow up. The grievor was asked in her examination-in-chief why she did not just ask directly about her accommodated hours. Her reply was that her accommodation was a private matter, not to be disseminated. She also said that just prior to sending the email she had spoken to Laura Correa, who was also a recipient of the email. She had a very brief conversation with Ms. Correa in the hallway when the grievor told her she had accommodated hours. Ms. Correa told her to contact her manager, Dave Schottmann. The grievor sent Mr. Shottmann the following email at 3:56 p.m., minutes before she left for the day:

Dave,

I will attend tomorrow as instructed. I will be traveling by public transportation, as no transportation was arranged for this address. If however, the weather is bad, which it may be, I will not be walking outside. My intent is to email you in the morning for instruction if I need to.

Regards,

Sharon

Ps the previous email was because mgmt rescheduled the hours of work for tomorrow, and there are prescribed conditions for this. Otherwise they have to pay time and a half for the whole shift. Sure they don’t want to do that. S

8The grievor had no further communication with members of management. The following day she attended the event, which ran late. By the time she returned to the office and left work it was 5:11 p.m. She said she was not able to leave the event discretely and feared retribution if she did so. She said that the whole process caused her considerable stress.

9In her cross-examination the grievor agreed that the information at the “huddle” included advice to speak to your manager if there were any questions about the event’s requirements. She said that she wrote the emails above to Mr. Schottmann because he was seldom on-site and she spoke to Laura Correa who was on-site. It was the grievor’s evidence that those communications were a request that her hours at the event be accommodated in accordance with her previous ongoing arrangement. She believed that the email of December 3 was “exceedingly clear”. She also testified that she saw Mr. Shottmann at the event but did not speak to him because she had written to him. She said, “At some point one accepts that he has chosen not to talk to me.” She also said, “Had Dave had a change of heart I was there waiting to hear it.” When asked why she did not speak to Mr. Schottmann directly she said, “I had written to him and been extremely clear. I had mentioned Human Rights legislation. It is not my job to educate management about Human Rights. It was my job to remind them there was an agreement [on my hours] and that needed to be honoured.” In short, she never tried to call Mr. Schottmann or speak with him at the event. She relied on the emails set out above.

10The Union closed its case following the grievor’s evidence. The Board asked for submissions on non-suit. The parties agreed that the Employer would first call one witness, Nadia Mustillo, the Central West Regional Program Manager. She provided a copy of the script which was provided to all managers in the Region. It was read at the “huddle” at the Burnhamthorpe office. It is as follows:

• We/I want to clarify travel arrangements for the Staff Development Day on December 4

• As you know, the event will be held at the Living Arts Centre.

• Activities for the day will begin promptly at 9:15 am and will end promptly at 4:00 pm.

• For staff working a flex work schedule, your hours of work on December 4 will be changed to 8:30 am – 4:45 pm. The agenda for the day includes one hour lunch.

• Staff are expected to begin the day by arriving at the office (1140) at 8:30 am. This means that you will be traveling directly to the Living Arts Centre from the office.

• Approved travel choices include the following:

1. You may choose to drive your own car (this is up to you). If so, you can travel directly from the office to the Living Arts Centre and then return to the office when the activities conclude at 4:00 pm. Mileage will be paid for the round trip from 1140 to the Living Arts Centre and return.

2. The Ministry vehicle is also available for some staff to travel together from 1140 to the LAC and return.

3. For those who do not wish to drive their own vehicle, you can take the Burnhamthorpe Road bus from the office to the LAC and return. The trip will take approximately 15 minutes. You will be reimbursed for the bus fare through the normal expense claim process.

• Regardless of your travel choice, since activities end at 4:00pm, there should be sufficient time for all staff to return to the office (1140) after the event, and from there finish the day and go home.

• Given the timing of the day’s events, travel from staff homes directly to the Living Arts Centre will not be authorized unless there are special circumstances that you have discussed with, and have been approved by your manager prior to December 4.

• Please see your manager if you have any issues of questions regarding this information.

The Submissions of the Parties

11The Employer submitted that the email of November 19 was responded to by way of the “huddle” meeting on December 2, 2008. The evidence was said to establish that the grievor heard Jackie Watts say employees were to speak to their manager if there were any issues or questions. The Employer submitted that the grievor never clearly spoke to her manager regarding the proposed hours and her ongoing accommodation. It was an essential element of her claim that she communicate her concerns to Mr. Schottmann. Not having done so, the Employer cannot be liable for the purported breach of the Human Rights Code.

12The Employer submitted that if all of the facts asserted by the grievor are true, the essential elements of her claim are not made out. It submitted that the Union did not discharge its onus of establishing a link between the grievor’s family status and the decision to change the hours. Without notification to the Employer from the grievor that she could not comply with the change in hours, management was entitled to change the hours. Nothing in the emails provided the necessary notification.

13The Employer relied upon the following authorities: OPSEU and Ministry of Government Services (Union) 2010-0405 (Abramsky); OPSEU and Ministry of Government Services (Couture) 2008-3329 (Dissanayake); McGill University Health Centre v. SHGM, 2007 SCC 4, [2007] 1 S.C.R. 161 (S.C.C.); Veillette v. Canada Revenue Agency, [2010] C.P.S.L.R.B. No. 26 (Paquet); Byfield v. Fresh Start Foods, [2009] O.H.R.T.D. No. 765 (Scott).

14The Union submitted that the grievor’s emails were cast in broad terms in order to have general application to her and to others. The Union said that it has made out a prima facie case. The grievor had an accommodation for her work hours which was unilaterally changed by the Employer. She tried to communicate with management but did not get a proper response. It said that there was a legitimate business need to change the working hours that day. However, where that change clashes with an established accommodation, the onus is on the Employer to communicate with the affected employee.

15Here the grievor tried to communicate her needs to no avail. It said that the script used at the “huddle” did not identify accommodated schedules as a category of concern. Also, it was not appropriate to refer employees to managers other than the manager reading the script.

16The Union also submitted that it is premature to find no violation of the Code without hearing what actions the Employer undertook to discharge its duty. It unilaterally changed the hours of work knowing that the grievor’s hours were modified as a family status accommodation.

17The Union relied on the following authorities: Policy and Guidelines on Discrimination Because of Family Status, Ontario Human Rights Commission, March 28, 2007; Ontario Human Rights Commission v. Simpsons-Sears, 1985 SCC minicounsel 79, [1985] 2 S.C.R. 536 (S.C.C.); Catholic District School Board of Eastern Ontario and OECTA (Elderkin Grievance), (2008), 176 L.A.C. (4th) 193 (Newman); OLBEU and LCBO (French Grievance), [2002] ).G.S.B.A. No. 32 (Marszewski).

18In reply, the Employer reiterated that the evidence supports a finding that it was prepared to remove any barriers created by the change in hours. However, it was the grievor’s obligation to clearly ask, which she did not. It was also submitted that Mr. Schottmann was the appropriate contact, since he was her manager and knew the details of her accommodation.

Reasons for Decision

19The event in question was a one-day, annual affair. The Employer may be taken to know that some employees might be unable to comply with the changed hours. Indeed, it anticipated such a possibility and invited anyone with any issues or questions to speak to their manager to resolve them. The grievor testified that she clearly brought her concerns to her manager’s attention, but the evidence was to the contrary.

20A review of the grievor’s emails reveals that they are general in scope and intended to apply to the whole bargaining unit. They were from the grievor, a union steward, and were copied to the LERC Chair and the Local President, and others in management. There is nothing in those emails that can be taken as the grievor’s personal request to her manager that she be exempted from the event’s changed hours.

21The duty of accommodation is an ongoing obligation and changes as circumstances change. In my view it was not unreasonable for the Employer to make such a time change for a special event provided it was willing to accommodate those for whom such a seemingly benign rule had a negative effect. It invited dialogue. Dialogue is the hallmark of accommodation, and dialogue requires the Union, Employer and employee to candidly and clearly communicate with each other. There is no explanation on the record as to why the grievor did not see fit to make a clear request to her manager to leave the event early. What is clear is that she did not do so and had no intention of doing so. She relied on her general emails.

22The grievor understood her obligation, as is clear from her formulation set out in her evidence summarized above. It was to remind the Employer that she had an accommodation agreement that needed to be honoured or temporarily adjusted in the circumstances. She failed to do so. In Byfield, supra, the Human Rights Tribunal held that an employee is obligated to state clearly their request for accommodation. In my view that is an essential element of a claim that there has been a breach by the Employer of its duty to accommodate. The evidence is that there was no clear request. Lacking that essential element, the Union has failed to make out a prima facie case.

23The grievance is dismissed.