GSB#2007-3819, 2008-2730

UNION#2008-0368-0021, 2008-0368-0112

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Birkhof)

Union

• and -

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

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Jackie Crawford and Laura Josephson Ontario Public Service Employees Union Grievance Officers

FOR THE EMPLOYER

Laura McCready and Antoinette Karner Ministry of Government Services Centre for Employee Relations Employee Relations Advisors

HEARING

June 24, 2013

Decision

1This grievance of Mr. Gary (Scott) Birkhof was referred to mediation/arbitration in accordance with Article 22.16 of the Collective Agreement between OPSEU (The Union) and The Ontario Crown, Ministry of Community Safety and Correctional Services (M.C.S.C.S., The Employer). There was no challenge to my jurisdiction to hear and rule on the matter. Further, the Parties requested the decision be issued on a without precedent or prejudice basis, and without extensive reasons.

2There are two grievances before me filed by Mr. Birkhof:

1. January 28, 2008 – Mr. Birkhof complained that he was improperly denied “the opportunity to apply for the Driver’s job”.

2. September 12, 2008 – Mr. Birkhof alleged harassment and discrimination, in particular, with respect to comments made by a member of the management team at the Lindsay Correctional Facility.

He seeks monetary and related relief in respect to these allegations.

3With respect to the first grievance, Mr. Birkhof advised that he was discouraged from bidding on a posting for a Driver’s position because a superintendent had told him the job could entail occasional inmate contact as backup to another corrections officer. After the posting had closed he was given to understand that the superintendent had been mistaken. Mr. Birkhof was then occupying an accommodated position in a (non-physical) desk job due to a work-related hand injury. In particular, he was restricted from physical contact with inmates.

4Having considered the submissions of the Parties, I am not satisfied that Mr. Birkhof, in view of the nature of his injury and consequent restrictions, would have been qualified to perform the Driver’s duties whether or not the job did require inmate contact. Furthermore, the comment of the Superintendent, even if mistaken, was not sufficient in itself to deprive Mr. Birkhof of his right to bid the job. Additionally, it did not establish a new right, extraneous to the collective agreement and individual to Mr. Birkhof himself, which might be said to have been violated. Finally, the wage rate for the Driver position was identical to that he was receiving in his accommodated job.

5Accordingly, I find no basis upon which to sustain this grievance. It is, therefore, dismissed.

6The second grievance related, again, to a comment made by a member of management. On this occasion, Mr. Birkhof felt offended and demeaned when told that the accommodated desk job or position he was then occupying was really a “non-job” or “no job at all”.

7I am sympathetic to Mr. Birkhof since the comment was ill-advised and inappropriate; however, it was an isolated incident and there was no evidence of ongoing harassment by this individual. It might better have been made the subject of a complaint pursuant to the Employer’s Workplace Harassment and Discrimination Policy and process.

8Furthermore, there was no evidence offered that, aside from feeling offended at the time, Mr. Birkhof suffered any ongoing psychological trauma; neither did he seek treatment.

9In the circumstances, while the comment was inappropriate, it was an isolated incident and insufficient to attract a declaration against the Employer or monetary relief for the Grievor.

10Having heard and considered the submissions of the Parties, I conclude that the grievance is denied.