GSB#2010-1747

UNION#2010-0225-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bonneveld)

Union

• and -

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

Employer

BEFORE

Felicity Briggs

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Lisa Compagnone Ministry of Government Services Legal Services Branch Counsel

HEARING

June 27, 2012 & May 7, 2013

SUBMISSIONS

September 20, 2013

CONFERENCE CALL

September 26, 2013

Decision

1Albert Bonneveld was a fixed term Cook 2 at the Walkerton Jail. In the fall of 2010 he filed a grievance that alleged the Employer discriminated against him due to his age by failing to schedule him extra shifts that arose as the result of a co-worker’s sick leave.

2In the Employer’s written response to the grievance the following was said, in part:

On Thursday January 06, 2011 at 1630 hours I met with you in my office to discuss your grievance. At our meeting you stated that last summer there was a period of 4-6 weeks where a M.T. was off work for medical reasons. You then stated that you were offered no hours to cover shifts during this period and that a colleague of yours, S.V., was provided with the extra shifts. I then informed you that I would investigate the matter and provide you with a written response of my findings.

As a result of my investigation into this matter I was able to confirm the following:

1. M.T. was off on medical leave from April 13^th thru to May 7^th (14 shifts).

2. In the 2010 calendar year you worked the following shifts:

January – 3 shifts in Walkerton, 1 shift in Owen Sound

February – 3 shifts in Walkerton, 1 shift in Owen Sound

March – 2 shifts in Walkerton

April – no shifts

May – 1 shift

June – 2 shifts in Walkerton, 1 shift in Owen Sound

July – 1 shift in Owen Sound

August thru to December – no shifts

In the 2009 calendar year you worked a total of 9.5 shifts, 4 of which were at the Owen Sound Jail.

In closing as a result of the information I was able to obtain and confirm through my investigation into this matter, in addition to information obtained during our meeting our January 6, 2011, I find the Employer did not violate any articles under the current collective agreement including Article 3.

3A hearing date into this matter was scheduled for June 27, 2012. In preparation for the hearing the Employer wrote to the Union on January 26, 2012, March 21, 2012 and May 18, 2012 asking for “fulsome written particulars of the grievance and all arguably relevant disclosure as soon as possible so that the Employer can understand the allegations against it and prepare for the grievance accordingly.

4The particulars were provided to the Employer on June 13, 2012 and stated:

• These particulars are in regard of an individual grievance filed by the Union on behalf of Mr. Albert Bonneveld on September 8, 2010 and currently before Vice-Chair Felicity Briggs.

• The parties are and were at all material times bound to a collective agreement, and the grievor is an employee in the bargaining unit covered by the collective agreement.

• As is particularized below, this grievance claims that the Employer has violated the collective agreement, particularly Arts. 2 and 3.2 in that it has exercised its management rights in a discriminatory manner and has discriminated against the grievor on the basis of his age and in its failure to schedule the grievor appropriately. The grievance also claims that these acts constituted a violation of the Human Rights Code R.S.O. 1990, c.H-19.

Background

• The grievor is employed by the Employer as a cook on a fixed term basis, classified as a Cook 2. He works at the Walkerton Jail, and prior to its closure worked shifts at the Owen Sound Jail.

• The grievor is sixty-nine years old.

Retirement and Rehiring

• On December 31, 2004, the grievor retired.

• At the time of his retirement the grievor was asked if he wished to receive part-time work and to return to the Walkerton Jail as an unclassified (as fixed-term employees were then known) cook.

• The grievor replied that he would like to receive some hours.

• Superintendent Dan Smith informed the grievor that the four hour shifts on Tuesday and Friday mornings would continue to be assigned to another unclassified cook, Ms. S.V. The grievor did not object to this.

Illness of MT

• Mr. MT is a classified cook (Cook 3) at the Walkerton Jail.

• In early 2010 Mr. T. went off work on sick leave estimated to be one of four to six weeks.

• Upon learning of Mr. T’s impending sick leave, in or around the end of February 2010, the grievor contacted Mr. Albert Henderson, Operational Manager, Shift Supervisor and Training Co-Ordinator, and informed Mr. Henderson that the grievor would be available to work during Mr. T’s sick leave, and that the grievor would like to work some of those shifts. Mr. Henderson responded that he would see what he could do.

• Several weeks later, once Mr. T. had begun his sick leave on April 13, 2010, the grievor visited Mr. Henderson to inquire again as to whether it would be possible to work some of the hours necessary to back-fill Mr. T’s absence.

• Mr. Henderson replied that the first two weeks were “looked after”. The grievor stated again that he would like to be assigned to some of the hours.

• After Mr. T. returned to work on May 7, 2010, the grievor again visited Mr. Henderson to ask why the grievor had not been assigned any hours to back-fill Mr. T’s absence.

• Mr. Henderson replied that he had been ordered by Supt. Smith to provide hours to the grievor only if Ms. S.V. would exceed 40 hours per week.

• Several days [sic] the final conversation with Mr. Henderson, the grievor went to see Supt. Smith. Supt. Smith, who denied giving such an order to Mr. Henderson, stating that the only order given to Mr. Henderson had been that Ms. S.V. was not to reach overtime hours.

• Over April and May 2010, the period of Mr. T.’s absence, the grievor was not called for any shifts, while Ms. S.V. was called for many shifts.

Ongoing

• On a continuing basis, Ms. S.V. has been called for more shifts than the grievor.

• The grievor is substantially older than Ms. S.V.

• On at least one occasion, other younger members of the kitchen staff have been assigned overtime hours while the grievor has not been called in to work, for which there was no bona fide business reason.

Conclusion

• The Union and the grievor state that these facts demonstrate a breach of the collective agreement in that the Employer discriminated against the grievor on the basis of age.

• The Union and the grievor seek as a remedy:

a) A declaration that the Employer has violated the collective agreement;

b) An order that the Employer cease and desist from such breaches; and

c) An order that the grievor be made whole.

• The Union and the grievor reserve the right to provide such further and other particulars as may be necessary.

5The Employer informed the Union that it would be raising a preliminary argument that there is no prima facie case at the June 27, 2012 hearing. The Union requested and was granted an adjournment with instructions to clarify its position to the Employer regarding the Employer’s motion. Further, the Union was to set out its disclosure request.

6In its disclosure request, the Union asked the Employer for:

• Payroll and scheduling information for all kitchen staff employed at the Walkerton Jail from 2007 until the closure of the facility; and

• Any and all correspondence between managerial and/or supervisory staff at the Walkerton jail relating to the scheduling of the grievor from 2007 to the closure of the facility.

7The Employer took the position that the particulars provided by the Union fell short of supporting a request for disclosure. Accordingly, it was not obliged to provide the requested disclosure. However, rather than taking further hearing time “about such pedestrian matters”, the Employer provided “the attendance/scheduling information for kitchen staff employed at the Walkerton Jail from 2007 to December 2011.” This disclosure information was provided in November of 2012.

8In a letter to Union counsel dated April 30 2013, the Employer said, “I should note that close to a year ago the Union reserved its right to provide additional particulars and raised it as a possible defense to any motion to dismiss. However, the Union has still yet to provide any such particulars.”

9Further particulars were not provided subsequent to that correspondence.

EMPLOYER SUBMISSIONS

10Ms. Compagnone, for the Employer, submitted that on a without prejudice basis and for the purposes of its motion only, the Employer was prepared to accept the Union’s particulars as proven fact. However, the particulars as set out do not establish a prima facie case.

11According to the Employer, despite ample time given to the Union to furnish particulars, the pleadings do not show differential treatment or a nexus between the alleged differential treatment and the alleged disadvantage. Indeed, according to the Union’s own alleged facts, it was the Employer who asked the grievor to work occasionally beyond his retirement. This is difficult to reconcile with an allegation of age discrimination.

12Mr. M.T., the full time Cook was absent due to sick leave for four and a half weeks. While the grievor specifically asked for work during this time he was informed that the first two weeks of the leave were already scheduled. According to the particulars he was then told by Mr. Henderson that he would “see what he could do”.

13The Employer suggested that it is noteworthy in this case that the Union reserved its right to provide more particulars but never did – even after the Employer provided the scheduling disclosure requested by the Union. It could have provided details about how many shifts Ms. S.V. worked. Instead, the Union failed to set out how many shifts or hours Ms. S.V. worked during this time. Indeed, the Union had an onus to establish that her hours worked increased during this time but it failed to do so. There was merely a statement that Ms. S.V. was called in for many shifts. This assertion is insufficient given that we know from an earlier pled fact that Ms. S.V. worked every Tuesday and Friday morning and the grievor never objected to this scheduling.

14The allegations set out in the Union’s “ongoing” section are also lacking in material facts. The Employer urged that it is not enough for there to be general assertions such as “Ms. S.V. has been called in for more shifts than the grievor” or that the grievor is “substantially older” than Ms. S.V. While it was alleged that “at least once” younger kitchen staff worked overtime rather than calling the grievor in to work, this assertion was without any foundation in terms of who or when. These details were never provided even following the Employer’s disclosure. The statements in this section of the particulars are really conclusions and cannot be considered as facts.

15The Employer asserted that in order for the grievor and the Union to establish a prima facie case of discrimination it must be shown that the two groups are similarly situated. That is to say, is there any fact that proves the grievor and others were equally available for the period at issue. Simply put, in the Employer’s view, there are no facts to prove such an allegation.

16Ms. Compagnone noted that the Employer provided the Union with four years of scheduling. If that scheduling revealed any material facts that would have assisted the grievor, that information should have been particularized and it was not.

17Turning to the arbitral jurisprudence, the Employer submitted that there are four principles for this Board to consider. First, the particulars must have provided the “who, what, when and where” of the allegations and not merely conclusions. Second, absent those particulars the grievor must be dismissed because there is no prima facie case. Third, the test to determine if a prima facie case exists is if the facts are capable of establishing the necessary elements to substantiate the violation alleged. Finally, the Union must have shown in its particulars that there has been discrimination.

18In reviewing those four principles the Employer noted that the Union failed to provide the necessary “who, what, when and where” of this matter. It did not set out who worked the shifts at issue or even which shifts were scheduled on any particular day. Further, the Union did not establish whether all of the unclassified cooks were equally available. It simply asserted that the grievor made his own desire to work some of the available shifts known. There is no evidence that the grievor and other Cooks who were scheduled to work are similarly situated. That information is certainly insufficient facts to set out a prima facie case of discrimination.

19Ms. Compagnone suggested that the Union is asking this Board to infer a nexus between the failure to schedule the grievor to part time shifts and his age. Such an inference cannot be drawn. Speculation and possibility of discrimination is not enough.

20Finally, the Employer asked to Board again to recall that according to the particulars it was the Employer who approached the grievor about continuing to work beyond his retirement. The fact of this invitation is completely contrary to concept of age discrimination.

21The Employer relied upon a number of cases including Re Ministry of Labour & Chyczik PSGB#001/00 (Maeots); Re Ministry of Correctional Services & OPSEU (Ross) GSB#2690/96 (Herlich); Re Ministry of Finance & OPSEU (Klonowski et al) GSB#1799/99 (Fisher): Re Ministry of Government Services & OPSEU (Couture et al) GSB#2008-3329 (Dissanayake); Re Ministry of Government Services & OPSEU (Wong) GSB#2010-0756 (Dissanayake); Re Peel Law Association v Pieters 2012 ONSC 1048; Re Ministry of the Attorney General & OPSEU (Cooray) GSB# 2010-1510 (Herlich).

UNION SUBMISSIONS

22Mr. Brewin, for the Union, submitted that the bar must be set low for the grievor in order that he be allowed to move to the next step of the process which is the calling of evidence. In the event that the Union has insufficient evidence to win its case, the Employer may elect to bring about a motion for non-suit. However it would be wrong for this Board to dismiss the grievance at this stage of the proceedings.

23It was conceded that in the event that particulars as set out do not come close to revealing a breach of the collective agreement granting a no prima facie motion is appropriate. However, it was urged that this is not such an instance. Indeed, at this point in the proceedings, the particulars must only raise the possibility that age was a factor in the denial of work to the grievor.

24The Union urged that the purpose of particulars is to indicate to the other side the general direction of the case. It is a preliminary outline of the case that the other side must meet.

25It was noted that the Employer never asked the Union for further particulars after it received the Union’s facts. This is, no doubt, because it was in receipt of all of the facts that it needed in order to litigate this grievance. It cannot now come before this Board and claim insufficient information has been provided. While it may be true that the Union did not set out the dates of the shifts worked by Ms. S.V., there was no need because the Employer already had that information. It was in possession of the shifts that were worked by all of the Cooks.

26The Union also conceded that there has to be some disadvantage but in this case, that disadvantage was set out in the particulars. The grievor was not scheduled to work while others were and received overtime.

27Mr. Brewin urged that the facts as set out by the Union give rise to the inference that a possible reason the grievor was not scheduled to work was because of his age. There were no bona fide operational reasons for the scheduling. The Board can infer that the grievor was denied the available work which was given to younger workers because of his age.

28In the matter at hand, it was suggested that the process must go further to allow the Union to call the evidence of the schedules to establish that there was no business reason for not scheduling the grievor. The Union might elect to call management witnesses to give evidence regarding the scheduling decisions.

29In the facts as set out in the particulars, there appears to be differential treatment of the grievor which caused him a disadvantage. At the very least, the Employer owes the grievor an explanation. Given the age disparity and the fact that there is no other reason for the differential scheduling, it is at least possible that the grievor was discriminated against on the basis of his age which is a violation of the collective agreement.

30Particular attention should be paid to the amount of evidence that was reasonably available to the Union and the grievor in this matter. The grievor cannot possibly know why the Employer chose not to schedule him. Given that the particulars reveal a reasonable possibility that the grievor was discriminated against because of his age, he should be allowed to have this hearing continue. To refuse him that opportunity to explore the evidence would be wrong according to the Union.

31The Union relied upon Re Ministry of Finance & OPSEU (Greenbank et al) GSB#2003-2771 (Mikus); Re Ministry of Community Safety and Correctional Services & OPSEU )Pinazza et al) GSB#2002-0840 (Herlich); Re Ministry of Attorney General & OPSEU (Evangelista) GSB#2009-1091 (Harris); Re Ministry of Municipal Affairs & OPSEU (Dhanju) GSB#2004-1101 (Dissanayake); Re Windsor Board of Education and Federation of Women Teachers’ Associations of Ontario (1982), 1982 CanLII 5080 (ON LA), 3 L.A.C. (3d) 426 (Gorsky); Re Toronto Hospital and Ontario Nurses’ Association, [1992], O.L.A.A. No. 1198 (Marszewski); and Re Base-Fort Patrol Ltd. V. Alberta (Human Rights Commission) 1982 CanLII 1246 (AB QB), [1982] A.J. No. 687, 143 D.L.R. (3d) 334.

EMPLOYER REPLY SUBMISSIONS

32In reply, the Employer contended that there is no obligation upon it to ask for further particulars and its failure to do so is meaningless and certainly cannot be to its disadvantage. The Union was informed with considerable notice of the Employer’s intention to raise this motion. It had every opportunity to provide further facts if it chose to do so.

33Regarding the Union’s contention that it did not have to set out the facts because the Employer already know them, it was urged that this is simply not correct. The Employer – when faced with this grievance – is not obliged to undertake a fact finding mission and find out matters such as who was available and who was not or which days needed to be scheduled and which did not. The Union bears the onus to prove its case and it should have set out the facts upon which it intends to rely in its particulars and it failed to do so.

34Finally, this Board cannot draw the inference suggested by the Union. To do so would reverse the onus onto the Employer.

FURTHER WRITTEN SUBMISSIONS

35Subsequent to our hearing day, the parties requested the opportunity to make further submissions regarding an Ontario Court of Appeal decision in Re Peel Law Association v. Pieters 2013 ONCA 396. Both parties provided written submissions and a conference call was held to ensure that both parties had every opportunity to address the matter raised in this decision.

36The focus of these submissions was regarding the appropriate test to apply in considering whether discrimination has taken place. In its decision, the Court of Appeal reviewed the following statement made by Divisional Court. It was said, at page 53:

The Divisional Court set out the following test for discrimination. The Court said:

In order to prove a prima facie case of discrimination there must be evidence to support the following findings:

(a) a distinction or differential treatment;

(b) arbitrariness based on a prohibited ground;

(c) a disadvantage; and

(d) a causal nexus between the arbitrary distinction based on

a prohibited ground and the disadvantage suffered.

37The Court of Appeal noted that it was unclear from where this test was derived but found that it was not a test that was traditionally applied by human rights tribunals. Further, the Court found that the test as set out above, could not stand. It was said, beginning at para 59:

i. While the word “nexus” is perfectly acceptable, I think it is preferable to continue to use terms more commonly used in the jurisprudence developed under the Code. All that is required is that there be a “connection” between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a “factor” in the adverse treatment.

ii. I do not think it acceptable, however, to attach the modifier “causal” to “nexus”. Doing so seems to me to elevate the test beyond what the law requires. The Divisional Court’s requirement of a “causal nexus” or a “causal link” between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct rather than on intention and direct cause.

iii. I conclude that Divisional Court erred in law by applying an incorrect and stricter test of discrimination in this case. This error necessarily affected the Divisional Court’s analysis of whether the evidence could reasonably satisfy the test for discrimination.

38It was the Union’s view that the absence of the word “causal” from the test for discrimination weakens considerably the Employer’s view of this matter. The Union also focused on the Court of Appeal’s comments at paragraph 72 which stated:

i. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondent’s state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondent’s evidence is often essential to accurately determine what happened and what the reason for a decision or action were.

39The Union, in its written submissions reminded the Board that in this case the work sought by the grievor was given to a much younger person without any explanation offered by the Employer. It was urged that the failure to offer an explanation when asked is, in itself, circumstantial evidence that age was a factor. Further, it was suggested that it is a reasonable inference that the discriminatory ground of the grievor’s age was a factor in the Employer’s decision to deny him the work, contrary to the collective agreement.

40The Employer submitted that the absence of the word “causal” from the test for discrimination had no impact on the Employer’s case in this instance. There still must be a connection between the effect and a prohibited ground. In the case at bar, according to the Employer, there are insufficient material facts set out in the particulars to lead to a finding of discrimination and therefore the grievance should be dismissed. The Court of Appeal accepted that “connection” and “nexus” can be used interchangeably.

DECISION

41The Board’s jurisprudence stands for the proposition that in order for a no prima facie case motion to succeed, the asserted facts – which are assumed to be true – do not establish the necessary elements to substantiate the alleged violation of the Collective Agreement. In this case, the Union must have shown in its particulars that the Employer, by its failure to assign the grievor certain shifts of work, discriminated against the grievor because of his age.

42When the submissions are considered in totality, it is apparent that the parties were not disparate in their view of the test to apply in determining whether a motion for no prima facie case should succeed. However, they were apart on whether the Union has met the test in this instance.

43After consideration of the facts and submissions in this case, I am of the view that the Employer’s motion must succeed. I cannot find that the particulars establish the necessary elements to substantiate that the Employer has discriminated against the grievor because of his age as alleged by the Union.

44At paragraph 56 in the Court of Appeal Decision in Peel Law Association (supra), the Court was reviewing with favour comments made in an earlier matter. It was said:

Lang, J.A., in this court’s decision in Shaw, at para. 14, said the following three elements were required to establish a prima facie case:

1. That he or she is a member of a group protected by the Code;

2. That he or she was subjected to adverse treatment; and

3. That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.

45Applying that test to the facts at hand, I am of the view that the Union has only established the first factor. I accept that the grievor is a member of a protected group. As a sixty-nine year old employee, he is entitled to be protected from discrimination based on his age.

46The second and third elements as set out above are not established in the particulars as provided by the Union. Turning first to the matter of adverse treatment, it is to be remembered that the sick leave of M.T. was only fourteen shifts over a twenty-five day period according to the Employer’s response to the grievance. While the particulars set out that the grievor made it known that he would be prepared to work some of those shifts, I do not think that the fact that he did not work any of the fourteen shifts was evidence of adverse treatment.

47According to the particulars, during this period Ms. S.V. worked “many” more shifts and the grievor was not asked to work any. No more specificity than that is provided. I first note that the most number of sick leave replacement shifts that Ms. S.V. could have been assigned was fourteen. Therefore, “many” shifts can be no more than fourteen.

48Further, in this regard I must agree with the Employer that given the disclosure provided to the Union, the lack of “who, what, when and where” is troubling. At the time that the scheduling information was given to the Union, it knew the Employer was going to proceed with a no prima facie motion. If the disclosed information assisted the Union in its case, it could have and should have been set out in further particulars. In the facts of this case, it is not sufficient for the Union to say the Employer knew what the work schedules revealed.

49Moreover, the fact that the grievor did not work any shifts in April and May of 2010 is not necessarily out of the norm for this grievor. According to the Employer’s response to the grievance, the grievor worked only 5.5 shifts in all of 2009 at the Walkerton Jail. The number makes clear that there were quite a few twenty five day period when the grievor did not work. There was no mention of a grievance being filed during this time regarding failure to schedule work. This evidence reveals that the arrangement between the Employer and the grievor is that he worked occasionally. While it appears that he had worked eight shifts at the Walkerton jail during the first three months of 2010, it still could not be said that he was working on a regular or frequent basis at any time. Certainly there is no evidence to suggest otherwise in the particulars.

50It was said that the grievor made it known that he was prepared to work some of the sick leave replacement shifts. While that assertion is accepted as true for the purposes of this motion, there is nothing in the particulars indicating that the grievor and other part time Cooks were equally available during this period. That lack further adds to the difficulty in finding that the grievor has been subjected to any adverse treatment.

51As set out above, the third element in determining if a prima facie case has been made out is whether it was the grievor’s gender, race, colour or ancestry was a factor in the alleged adverse treatment. It is not necessary to consider if this element is present given my finding regarding adverse treatment. However, it is perhaps useful to comment that in my view there is nothing in the particulars that leads to a finding that the grievor was discriminated against because of his age. I accept that Ms. S.V. and other Cooks are younger than the grievor. But the fact that every other Cook is younger than the grievor is not, in and of itself, proof of discrimination.

52The Union stated that the grievor is “substantially older” than Ms. S.V. and that other younger members of the kitchen staff have been assigned overtime work. Again, assuming both of those assertions to be true for the purposes of this motion, they do not establish that age was a factor in the assignment of part time work.

53According to the particulars every other part time cook was younger or substantially younger than the grievor. Assignment of shifts to others in a classification – all of whom are younger – is not, in and of itself, discrimination.

54In Re Couture et al (supra) Vice Chair Dissanayake noted “a prima facie motion would succeed if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged”. This grievance alleges that the Employer has discriminated against the grievor because of his age by virtue of its scheduling of part time work. The particulars do not establish a finding that the Employer has violated Article 3 of the Collective Agreement.

55The Union urged that this Board should be very cautious about granting preliminary motions such as this. I do not disagree. However, caution alone cannot create a prima facie case where one does not exist.

56The motion is upheld. The grievance is dismissed.