GSB#2013-2274, 2013-2275, 2013-2405, 2013-3009

UNION#2013-0526-0076, 2013-0526-0077, 2013-0526-0079, 2013-0526-0135

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McGann)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Gail Misra

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 25, 2014

Decision

1Mr. Dag McGann, a Flexible Part Time Courtroom Registrar at the 393 University Avenue Court House, filed four grievances. OPSEU Grievance No. 2013-0526-0076, dated July 24, 2013, alleges that the Employer has breached Articles 2, 3, 22, 60, and Appendix 32 of the collective agreement, and as well alleges that the Employer has violated the Occupational Health & Safety Act, and the Workplace Harassment and Discrimination Policy. The issues in this grievance arise out of an email sent to the Grievor by one of his co-workers, and the actions that management took in response to the Grievor’s complaint about that email. Among other things, the Grievor asserts that the co-worker’s email defamed him; that the Employer is seeking to constructively dismiss him; that because he is a Christian, the Employer is encouraging and promoting false allegations and accusations against him; and is failing to accommodate his needs. By way of remedy, and among other things, the Grievor is seeking a number of findings of violation of the collective agreement; additional staff training; new processes; an apology from the co-worker and Employer; and punitive and aggravated damages of $100,000 or more.

2OPSEU Grievance No. 2013-0526-0077, dated July 30, 2013, alleges that the Employer has breached Articles 2, 3, 22, 60, and Appendix 32 of the collective agreement, and as well alleges that the Employer has violated the Occupational Health & Safety Act, and the Workplace Harassment and Discrimination Policy. The issues in this grievance arise out of email exchanges between the Grievor and his supervisor, Mr. Michael Fernandez, between July 22 and 23, 2013. Among other things, the Grievor alleges that his supervisor abused his power to assign and direct employees by requiring the Grievor to work in one or more courtrooms, which he describes as an isolated area, and that the Grievor’s accommodation needs cannot be met as well in that environment. The Grievor claims that he is being isolated because he is a Christian man, and because he is a union steward. He further claims that the Workplace Discrimination and Harassment Policy has been violated because his supervisor has not answered all the questions the Grievor has posed in his emails. By way of remedy and among other things, the Grievor is seeking a number of findings of violation of the collective agreement; orders that the Employer inform staff of a variety of things the Grievor believes they should be told; and, punitive and aggravated damages of $100,000 or more.

3OPSEU Grievance No. 2013-0526-0079, dated August 30, 2013, alleges that the Employer has breached Articles 2, 3, 22, and Appendix 32 of the collective agreement, and as well alleges that the Employer has violated the Occupational Health & Safety Act, and the Workplace Harassment and Discrimination Policy. The issues in this grievance arise out of an incident in which the Grievor overheard a conversation between two supervisors in which he alleges that comments disrespectful of a bargaining unit member were made. The Grievor complained to Ms. Barbara Krever, Manager, Court Operations, but was dissatisfied with how Ms. Krever suggested he address the issue through his immediate superiors. The Grievor alleges that based on this event, his supervisor, Mr. Fernandez, cannot be trusted and is not providing transparent disclosure of the assignment of hours of each Registrar so that the Grievor, and others, are unable to verify whether they are being treated equally in the allocation of hours of work. By way of remedy, and among other things, the Grievor is seeking findings of violation of the Occupational Health & Safety Act and the Workplace Harassment and Discrimination Policy; orders that the Employer post information in a certain format; and, punitive and aggravated damages of $200,000 or more.

4OPSEU Grievance No. 2013-0526-0135, dated October 8, 2013, alleges that the Employer has breached Articles 2, 3, 22, and Appendix 32 of the collective agreement, and as well alleges that the Employer has violated the Occupational Health & Safety Act, and the Workplace Harassment and Discrimination Policy. This grievance is about a Letter of Counsel dated October 1, 2013 that the Grievor received from Ms. Krever following exchanges between the Grievor and Mr. Fernandez, his supervisor, on September 5, 2013. While the letter stated that it was not disciplinary in nature, and would not be placed on the Grievor’s corporate file, he alleges in part that the letter is disciplinary in nature; that it violates the terms of the collective agreement; and that it was given to him because he is a Christian man, and a union steward. By way of remedy and among other things, the Grievor seeks findings that there was bias by the manager in favour of the supervisor; that there were multiple instances of defamation of the Grievor’s character in the Letter of Counsel; that the Employer is constructively dismissing the Grievor; and, he is seeking punitive and aggravated damages of $300,000 or more.

5The parties referred these grievances to mediation/arbitration in accordance with Article 22.16 of the collective agreement. At the outset of the hearing the parties agreed that I had the jurisdiction to deal with these matters, and asked that I issue a decision in accordance with Article 22.16.

6The Employer made a preliminary motion that the Board ought to dismiss the grievances on the basis that the particulars provided by the Grievor and Union do not disclose a prima facie case for any violation of the collective agreement. The Union argued that there were facts that would support findings of breaches of the collective agreement in respect of each grievance, and that therefore the motion should be dismissed.

7There was no dispute between the parties regarding the test the Board is to apply in considering a prima facie motion. A prima facie motion may succeed if the facts asserted in support of a grievance, if accepted as true and provable, are not capable of establishing the elements to substantiate the violation alleged. (Re Difederico, 2008-0868 (Dissanayake); Re Couture et al, 2008-3329 (Dissanayake); Re Liantzakis, 2012-3997 et al (Tims))

8Having carefully considered the submissions of the parties, reviewed the Grievor and Union’s particulars in respect of each of the grievances, and considered the jurisprudence of the Board, I find that the particulars, even if accepted as true and provable, do not disclose a prima facie case for the Employer to meet in each of the four grievances. I note that no evidence or argument was made on the human rights aspect of the allegations.

9Accordingly, the Employer’s motion is upheld, and the four grievances are dismissed.