OPSEU (Curado et al) v Ontario (Finance), 2013 OGSB minicounsel 65

GSB#2011-2856, 2011-2857, 2011-2858

UNION#2011-0105-0003, 2011-0105-0001, 2011-0105-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

OPSEU (Curado et al)

Grievors

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE GRIEVORS

Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Labour Practice Group Counsel

HEARING

April 8, 2013.

DECISION

1The parties agreed that this proceeding was to be conducted pursuant to the expedited procedure set out in article 22.16 of the collective agreement. At the hearing held in London, Ontario on April 8, 2013, the parties did not present any viva voce evidence. Instead, I met informally with each party and was informed about their respective concerns and positions. Additionally, I was provided with several documents relating to the issues in dispute, together with the authorities each party relied on in support of their position.

2This proceeding arises from three (3) grievances filed Mr. Richard Curado, Mr. Steve Rogers and Ms. Moria Cowan, all dated August 17, 2011. The grievors are Tobacco and Fuel Inspectors. From 2009 to 2010, they were part of a pilot project that involved the inspection of tobacco farms (Raw Leaf Project). As a consequence of learning that criminal activity, involving illegal drugs and weapons, had occurred on one (1) of the farms inspected, the grievors came to believe that their work on the pilot project was unsafe. As a consequence, they initiated a work refusal on July 4, 2011.

3In substance, the grievors complained that they were harassed by the Employer, as a result of their raising concerns about workplace safety. They cited the following as instances of harassment:

(i) At a meeting held on July 6, 2011 to discuss the work refusal, the Employer representatives seemed disrespectful, dismissive and insensitive to the grievors’ health and safety concerns. The grievors noted that the Employer representatives would “roll their eyes and sigh loudly” when the grievors spoke and that they seemed preoccupied with their blackberries during the meeting. They claimed that one (1) of the Managers present told them “not going to happen”, when she was presented with several proposals to resolve the issue. The grievors maintained that similar behavior was exhibited by this same Manager at a subsequent meeting of August 22, 2011. Representatives of the Joint Health and Safety Committee were in attendance at the meeting, as was an Inspector from the Occupational Health and Safety Branch of the Ministry of Labour. From the perspective of the grievors, the Manager in question “continued to trivialize the safety concerns of the Inspector and spent much of the meeting glaring at the grievors in a manner they interpreted as intimidating”;

(ii) The grievors further noted that the Inspector from the Ministry of Labour issued an order to the Employer on November 17, 2011 to develop and maintain a workplace violence program by December 31, 2011. A second order was issued that the Employer provide employees with information and instruction on the contents of the policy and program. A deadline of January 20, 2012 was set for compliance with this latter order. The grievors emphasized that the Employer did not ultimately comply with the above orders until October 31, 2012. I note that the Employer had received an extension to that date in early May, 2012. The grievors believed that this delay in complying with the Inspector’s orders reflected a lack of sensitivity, on the part of the Employer, to the serious health and safety concerns they had raised;

(iii) The grievors alleged that since the filing of their complaint, they have been isolated and disadvantaged at work. The grievors referenced the following matters, which were also cited in the particulars provided to the Employer:

• Work opportunities that would normally be available in their area have been moved to other areas, rendering these grievors ineligible for the competition;

• Opportunities for acting management positions have been denied;

• The grievors are not informed or not invited to regional meetings of the Fuel and Tobacco Inspectors;

• The grievors had been granted permission to attend a meeting of the Non-Smokers Rights Association, however this permission was withdrawn with some considerable inconvenience to the Association;

• The grievors were informed that they would not be considered for positions similar to the pilot project that led to the initial complaint; and

• The grievors have been “routinely and pointedly isolated and ignored” by members of the management team.

4Counsel for the Union submitted that the Employer’s treatment of the grievors constitutes harassment under the provisions of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1 and a violation of the collective agreement, most notably articles 2 and 9. Her argument is well captured in the following excerpt from the Union’s statement of particulars:

“It is further the Union’s position that, within the context of the serious workplace violence issues that were present in the workplace at this time, this derision had the effect of making the grievors feel dispensable, and that their physical safety was of no consequence to the Employer. This created an oppressive atmosphere and relationship with the Employer.

It is the Union’s position that, taken as a whole, this constitutes a course of vexatious comment and conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome,………………………

Moreover, it is the Union’s position that the meeting of July 6, 2011, taken in isolation, had a sufficiently harmful effect to the grievors’ dignity, feelings and mental health so as to constitute harassment under the Occupational Health and Safety Act, and in violation of the Collective Agreement.

These incidents have had a serious and severe harmful effect on the grievors. It has undermined their confidence in their Employer and their confidence in their ability to perform their duties…………………………………”

5At the hearing, the Union asked for an award of the following remedies:

(i) To be placed permanently in an Enforcement/Investigations/Compliance position in another Ministry within the OPS with comparable salary and work location;

(ii) A formal letter of apology from the Ministry outlining the Ministry’s complacency and continued demonstration of behavior that contravenes the Occupational Health and Safety Act, the collective agreement and Ministry of Revenue Strategic Priorities;

(iii) An additional amount of credits equal to their current allotment with an expiry date of one year from the date of the award; and

(iv) A five thousand dollar ($5,000.00) donation made on behalf of the Ministry of Revenue to a registered Anti-Bullying Program in Ontario.

6The Union provided the following authorities in support of its position: Toronto Transit Commission v. Amalgamated Transit Union (Stina Grievance) (2004), , 132 L.A.C. (4^th) 225 (Shime); Ghosh v. Domglas Inc. (No. 2) (1992), 1992 HRTO minicounsel 11, 17 C.H.R.R. D/216.

7Counsel for the Employer, in response, made the following submissions:

(i) The Orders issued by the Ministry of Labour were of a “limited” nature. Counsel noted that the Employer complied with same, and that the Inspector determined that the work refusal initiated by the grievors was not warranted;

(ii) Counsel argued that the conduct attributed to the Employer representatives at the meeting of July 6, 2011 fell well short of what could properly be viewed as harassment. He observed there were no allegations that these representatives engaged in screaming, throwing things or the use of profane language. On his analysis, their conduct that day was more benign. Counsel suggested that at the meeting the parties simply had a difference of opinion over the validity of the work refusal. He submitted that being dismissive of another party’s position does not equate with harassment. Counsel further emphasized that there was no adverse impact on the grievors from what occurred at the meeting held on July 6^th;

(iii) Counsel submitted that, even when taken at its highest, the concerns expressed by the Union do not represent harassment under either the collective agreement or the Occupational Health and Safety Act. He maintained, in this regard, that an objective standard should be applied in assessing the grievors’ complaints and that harassment should not be given an “overly broad application”. Counsel stated that harassment is a serious allegation and, accordingly, should not be used to characterize every difference of opinion, discontent, or general unhappiness in the workplace. From his perspective, to do so would be to trivialize those cases where substantial workplace abuses have occurred. He added that the workplace could become paralysed if every slight or subjective inference of abuse was deemed to constitute harassment. Counsel maintained, as well, that it is important to distinguish between an aggressive management style and true harassment. He noted that the authorities recognize that “not every supervisor is a good one, but not all bad supervisors are abusive”. Counsel argued that the Grievance Settlement Board has established a high threshold for purposes of finding the presence of harassment. In his view, that threshold was not satisfied by the grievors so as to support a finding of harassment under the terms of the collective agreement. Counsel also submitted that there is no provision in the Occupational Health and Safety Act requiring the Employer to keep the workplace free of harassment. Rather, the obligation thereunder is to provide for a policy to address harassment complaints;

(iv) Counsel argued that the Union failed to establish the existence of any serious health consequences resulting from the alleged harassment. It was his submission that minor tension, stress, or irritation is an insufficient foundation for an affirmative finding of harassment. He referenced the lack of any related medical evidence in this instance;

(v) Counsel also referenced the six (6) examples relied on by the grievors to establish that they have been isolated or disadvantaged at work. It was his submission that the examples do not represent harassment but, rather, an appropriate exercise of management rights for legitimate operational purposes. On this point, I was told that it made business sense to run the Raw Leaf program out of the Hamilton Office, once it became permanent; and

(vi) Lastly, counsel submitted that the remedies claimed are extraordinary and that no basis exists to award any of them. He noted as follows with respect to this submission: several of the Managers complained about have left the London Office; it is unlikely that the grievors will work in the Raw Leaf program going forward and, accordingly, there is no need to provide them with positions outside of the Ministry; both an apology and the donation requested are punitive in nature; and there is no basis for an award of additional credits, as there is a lack of evidence to show that the grievors lost work time as a consequence of the alleged harassment.

8The Employer provided the following authorities in support of its position: Cara Operations Ltd. (c.o.b. Toronto Flight Kitchen) v. Teamsters Chemical, Energy and Allied Workers Union, Local 647 (Palmieri Grievance) (2005), , 141 L.A.C. (4^th) 266 (Luborsky); United Food and Commercial Workers Union of British Columbia, Local 1518 v. 55369 BC Ltd. (c.o.b. Shopper’s Drug Mart No. 242), [2007] B.C.C.A.A.A. No. 130 (Larson); OPSEU (Sager, Shelley et al.) and Ministry of Transportation, GSB No. 2000-0377 (Mikus); OPSEU (Hunt et al.) and Ministry of the Attorney General, GSB No. 2001-0534 (Abramsky); and Investia Financial Services Inc., [2011] OLRB Rep. September/October 549 (McLean).

9On the information provided to me, I have no doubt that the grievors had a genuine concern for their safety while working on the pilot project. I also accept that it was their perception that certain of the Employer representatives, both at the meeting of July 6, 2011 and later, appeared insensitive to, and somewhat dismissive of, the serious issues raised. The conduct complained of did not serve to promote good labour relations. I have not been persuaded, however, that this conduct amounted to harassment, as defined in the authorities provided to me. I agree with the submission of counsel for the Employer that there is a relatively high threshold which must be met in order to establish the fact of harassment. I am satisfied that the information presented by the grievors in this instance falls short of that threshold. I also consider it more likely than not that the “disadvantages” described by the grievors resulted from the exercise of the Employer’s management rights under the collective agreement. I am unable to conclude that the exercise of these rights was inappropriate or improper. It follows from the above that the grievors are not entitled to any of the remedies claimed.

10In summary, I find the Union has not established that the grievors were harassed by the Employer contrary to either the collective agreement or the Occupational Health and Safety Act. The grievances, accordingly, are dismissed.