GSB#2012-1012
UNION#2012-0506-0018
Additional Grievors in attached list
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Brydges et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Counsel
HEARING
October 15, 2014
Decision
1The Board is seized with 39 individual grievances filed by Transportation Enforcement Officers employed at the employer’s Durham and Halton District offices. The grievances are worded as follows:
Statement of Grievance: The employer’s “New Year New Outlook” presentation violates article 3 of the collective agreement, the Human Rights Code and any other applicable articles or legislation that may apply.
Settlement Desired: The employer cease and desist; the Employer publicly acknowledge that the presentation contravenes the collective agreement and the Code; the employer implement appropriate communication to be provided by an external consultant and selected jointly by the employer and union; an investigation to determine any emails containing the presentation or anyone that supported its distribution.
2The parties agreed that the grievances be heard together. Prior to the date of hearing the employer gave notice to the union that it would be presenting a motion for the dismissal of the grievances for failure disclose a prima facie case. The motion was argued on October 15, 2014 and this decision determines it.
3The particulars of the union are as follows:
Further to our emails and telephone conversation I am writing to provide particulars regarding the Union's case. The Union has relied on statements from the Grievors as well as the documents attached.
The Union explicitly reserves the right to raise further details and rely on additional documents, facts or evidence. I will give you an opportunity to review any additional material prior to introducing it into evidence.
- In or around January 2012, Jabeem Khan, Regional Manager of the Central East Region, delivered a power point presentation entitled “New Year New Outlook” to her staff. These staff included the following grievors:
Andrew Brydges , Jason Brydges, Marsha Boileau, Michael Carr, Douglas Davey, Paul Grapham, James Gray, Lori Letterio, Ron Marchant, Glenn Murray, Jordon Whynot, Bradley Wiebe, Philip Wilkinson, Darren Woodcox
All of the above Grievors are Transportation Enforcement Officers with the Ministry of Transportation.
The presentation contained graphic imagery of poverty in the developing world and compared this imagery with “trivial” problems in the developed world. For example, the third slide asks “If you think your salary is low, how about her?” accompanied by a photo of a child.
The fifteenth slide asks “Why do we complain?” Ms. Strachan, when she received this slide felt this was a direct comment on interaction with the Union, and grievances, as well as health and safety complaints, filed by the members.
The sixteenth slide states “Let’s Have New Expectations!”. Ms. Strachan, when she viewed this slide, again, felt it was a direct comment on interactions with the Union and grievances, as well as health and safety complaints, filed by the members.
Further, Ms. Strachan noted that 2012 was a bargaining year, and felt that the presentation was a tool to disincentivize the Union from bargaining an advantageous agreement. She felt the presentation was calling her, as well as other members “lazy” and insinuating that they demanded too much.
The Grievors felt that the presentation was condescending and presumptuous. Mr. Jason Brydges characterized the presentation as the employer telling him that he was “lucky” to have to a job, and that he may not be doing it very well and he should do it better in the new year.
Mr. Brydges also felt that the presentation was condescending in that it seemed to say they had no appreciation for their privileges, as well as implying that any problems they had were trivial, such as the thirteenth slide, which asked if “someone gave you adidas instead of nike”).
Mr. Brydges felt that Ms. Khan had no insight into his life and any problems that had arisen in the months prior to the presentation. In that time, Mr. Brydges had experienced serious family problems, including the diagnosis of his father and uncle with cancer, his sister in law vehicle accident, and the passing away of family members. Mr. Brydges felt that this presentation deeply trivialized his very real problems.
The Grievors felt that this presentation had no place in the workplace and was an inappropriate motivational tool.
On or around January 16, 2012 Rob Gagne, who was at the time a regional manager, forwarded the presentation to the staff of the entire Northern Region. This email was copied to Tony Foster, the Director and Regional Operations, and Ms. Kahn.
This presentation was freely emailed around by both management and staff. The following grievors received the presentation by email
Mike Anderson, Daniel Bosher, Anas Bijabhai, Jacqueline Bush, Jennifer Coit, Douglas Currie, Erik Eustace, Jim Fenton, Robert Grabar, Tyeone Greenidge, Louise Kemp, Jason Leeman, Joanna Louks, Richard McConnell, Guitri Mohammed, Ryan Nicals, Lisa Pulver, Lyle Reid, Adriano Sanna, Corrine Santangelo, Dennis Singh, Suzanne Steblaj, Edie Strachan, Michael Wozniak, Anna Zeeman
On or around January 27, 2012, at around 2.33 pm, Rob Fleming, the Assistant Deputy Minister sent an email to all MTO Enforcement staff. This email states that he is “confident that local management never intended to offend staff and did not anticipate the negative impact that the material could have in the workplace”.
On the same date at around 3.05 pm Ms. Khan sent out an email. This email states that staff “misinterpreted” the intent of the presentation and offers apologies “if it was taken out of context and not received in the manner it was genuinely intended to.”
This email goes on to state that the presentation was to “broaden all of our perspectives”. This was also perceived by the Grievor’s as condescending.
It is the position of the Union that showing this presentation violated article 3.1 of the Collective Agreement and Section 5 of the Ontario Human Rights Code. The presentation is exploitative and insensitive and portrays people of colour as objects of pity rather than as full participants in society.
It is further the position of the Union that showing this presentation violated article 9 of the Collective Agreement, insofar as it was vexatious and should have reasonably been known to be unwelcome to those who saw it.
Finally it is the position of the Union that showing this presentation violated Article 3.2 of the Collective Agreement insofar as it sought to and had the effect of shaming union members for seeking to uphold the collective agreement through grievances, and seeking to improve the collective agreement at bargaining.
4Recognizing that the union had reserved “the right to raise further details and rely on additional documents, facts of evidence” in the preamble to its particulars, the Board inquired from union counsel whether the union would be relying on any additional facts or documents. She responded that the union would not be relying on any additional facts, but entered into evidence the employer’s Workplace Discrimination and Harassment Prevention Policy (“WDHP policy”) and a document entitled “New Year … 2012 New Outlook … Central East Region RUS Operations”, (“The presentation”) which consisted of paper copies of the power point presentation referred to in paragraph 1 of the particulars.
5Employer counsel noted that these are individual grievances. Therefore, each grievor is obliged to present particulars, if accepted as true, would be capable of establishing a violation of some provision of the collective agreement or a statute. Counsel noted that the only grievors specifically mentioned in the particulars are Ms. Strachan and Mr. Brydges. The union alleges that the presentation violated article 3.1, article 9 and article 3.2 of the collective agreement and section 5 of the Ontario Human Rights Code. However, the particulars do not set out the facts which could possibly be the basis for a finding that any of the individuals who have grieved were personally denied rights under any of those provisions. Ms. Strachan states that it was a collective bargaining year and sets out that she felt that the presentation was used as a tool to “disincentivize” the union from bargaining an advantageous agreement. However, apart from that bold statement about how she felt, nothing is said about how Ms. Strachan’s rights to full union participation was impacted by the presentation. Nor do the particulars even set out how the union itself would be impacted in relation to its ability to negotiate with the employer as a result of the presentation.
6Employer counsel noted that while the particulars assert violations of article 3.1 and section 5 of the Code, it does not say which grievor was discriminated against and on what prohibited ground. She submitted that even assuming that the union’s assertion that the presentation depicted people of colour as “objects of pity rather than as full participants in society” and that the presentation was condescending, insensitive, had no place in the workplace and inappropriate as a motivational tool is true, that could not possibly lead to a conclusion that any of the grievors had been denied their rights under the collective agreement or the Code.
7With regard to the allegation that article 9 was violated, employer counsel argued that the particulars only make the bold assertion that the presentation was vexatious and unwelcome. They do not state how the health and safety of any of the grievors was affected by the presentation.
8Counsel submitted that the particulars at best may be capable of establishing that the grievors found the presentation to be offensive and condescending and was not an effective motivational tool. That, however, could not possibly lead to a finding that any of the grievors were denied their rights under the provisions of the collective agreement or the Code relied upon. Numerous authorities were cited in support of the employer’s motion.
9Union counsel reviewed the images and captions in the presentation and submitted that it contained graphic portrayals of impoverished people, most of who are coloured people in developing nations. She suggested the presentation was inappropriate because it trivializes and “bohemianizes” those people, and holds them as objects of pity. Comparing them to employees of the Ministry, the message is that the employees should be happy with what they have, and should stop complaining.
10Counsel submitted that the union is not required to particularize how each of the grievors were impacted. It has asserted that the presentation created a poisoned work environment based on race, and under the collective agreement and the Code every employee is entitled to be free from negative stereotypes based on race. She submitted that it would be a step backwards in human rights law, for example, to hold that it would be acceptable to stereotype women negatively in a presentation, as long as there are no women in the audience. While the union has not identified a prohibited ground with regard to each grievor, on its face the presentation was racially insensitive and violated article 3 and s. 5 of the Code.
11Counsel noted that the presentation was made at a mandatory work related meeting. It refers to wages earned by the employees, as compared to what they produce. The message conveyed was that these grievors “are paid too much, produce too little and complain too much”. This presentation was made during a collective bargaining year. Union counsel argued that to constitute a violation of article 3.2, the law does not require that the union establish that the employer’s anti-union activity had successfully achieved the desired result of discouraging employees and the union from seeking favourable terms and conditions of work. All it needs to show is that the employer activity was capable of having that effect.
12The union submitted that the presentation contravened article 9 of the collective agreement and the Occupational Health and Safety Act in that it constituted harassment and bullying. The ADM’s e-mail set out in the particulars, she submitted, acknowledges that the presentation had a negative impact on the workplace. The particulars about the grievors finding the presentation to be inappropriate and offensive, that it trivialized and bohemianized people of colour, and that it conveyed a message to the employees that they produce too little and ask for too much, would be sufficient to establish a prima facie case of harassment and bullying. She argued that the presentation was an act of “intimidation by a condescending attitude and by policing the conscience of the employees”.
13Union counsel presented a large number of authorities to support its position that the employer’s motion ought to be dismissed. Counsel submitted that in dealing with this motion, it is not necessary that the Board be able to find that the alleged violations are established. All that is required is, the Board must be able to conclude that if all of the facts asserted are established by the evidence, it is possible that violations may be found.
14In reply, employer counsel reminded that the Board’s jurisdiction is constrained by the four corners of the collective agreement and the statutory provisions relied upon. Therefore, considering that these are individual grievances, the Board must ask itself whether any of the 39 grievors had asserted facts that are capable of establishing a violation of any of those collective agreement and statutory provisions. She submitted that the particulars relied upon by the union make specific reference only to two of the grievors, Ms. Strachan and Mr. Brydges. There is nothing about how the presentation impacted on the collective agreement or statutory rights of any of the other 37 grievors. Even with regard to Ms. Strachan and Mr. Brydges, the particulars only assert their opinion about the presentation, and how they felt. There is no mention of on what prohibited ground either of them were discriminated against or how their health and safety rights or right to engage in union activity were impacted.
15The provisions of the collective agreement and the Human Rights Code the union relies on are as follows:
Collective Agreement
3.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability, as defined in section 10(1) of the Ontario human Rights Code (OHRC).
3.2 There shall be no discrimination or harassment practised by reason of an employee’s membership or activity in the Union.
9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.
Employment
5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
16Employer counsel relied on the provisions of the employer’s WDHP policy including its definitions of “discrimination” and “harassment” and submitted that the union had not, through its particulars, made out a prima facie violation of that policy. As the document itself clearly identifies, the WDHP policy is a “Management Board of Cabinet Directive”. It is a tool the employer has unilaterally developed to assist its managers to comply with its legal obligations. It is not part of the collective agreement nor jointly signed off. The policy sets out its purpose at p. 3 as follows:
The purpose of this policy is to:
. establish a framework for the prevention of workplace discrimination and harassment and effective response to issues of workplace discrimination and harassment.
. provide direction to ministries and commission public bodies on compliance with statutory requirements for human rights and health and safety regarding workplace discrimination and harassment.
17The provisions of the employer WDHP policy may certainly become relevant in proceedings before the Board in various ways. However, in a no prima facie case motion, the union is not required to even assert that the employer did not comply with its own WDHP policy. The violation that must be established on a prima facie basis is of some collective agreement or statutory right of the grievors. Whether the employer complied with its own policy is not relevant to the determination of the motion.
18The union relied on a discussion by the Board in Re OPSEU and Ministries of Community Safety and Correctional Services and Children and Youth Services, 2009-0167 and 2009-0810 (Harris) where the Board states that the purpose of particulars is to enable the employer to know “what the case is about” in order to permit it to prepare its defence. Counsel submitted that the union’s particulars meet that requirement. Vice-Chair Harris was, however, not faced with a “no prima facie case” motion. The Board was merely commenting on what constitutes adequate particulars, in dismissing the employer’s objection to calling of evidence not captured by the particulars provided. At para. 54 the Board wrote “The purpose of particulars is to permit the employer to know which facts are claimed to be part of the alleged breach of the collective agreement. Particulars do not include evidence nor do they include argument. In harassment and discrimination matters it is only fair to individually itemize the various actions alleged to be part of the course of conduct that amounts to the alleged breach”.
19The observations of the Board in that case about the purpose of particulars are consistent with other authorities and are not controversial. However, the general adequacy of particulars is not a complete answer to a “no prima facie case” motion. The Board jurisprudence has developed principles that govern such motions. In Re Couture et al 2008-3329 (Dissanayake) at para 6 the Board wrote :
The decision in Re Difederico, 2008-0868 (Dissanayake) illustrates that 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. There the grievance alleged a violation of article 3.2 which provided that “There shall be no discrimination or harassment practised by reason of an employee’s membership or activity in the union”. The grievance alleged that the employer had exercised its management right to investigate a WDHP complaint in a manner that harassed the grievor and that this was done as retaliation for the grievor’s filing of three grievances some years earlier. At para. 16 Board wrote:
16Given the manner in which the grievance has been framed, in order to establish a prima facie case, the facts asserted by the union must establish that (1) the employer conducted itself in the exercise of its management rights in a manner discriminatory or harassing of the grievor, (2) that such conduct was motivated in whole or in part, because of the grievor’s filing of grievances some 17 years ago. I find that the union has not made out the first element of articles 3.2 above, so that the second element becomes moot.
20The union in the instant case took the position that the Board ought not determine the merits of the grievances in a preliminary motion, but should do so only after hearing all of the evidence. In Re Couture et al (supra) at paragraph 13, the Board addressed that concern as follows:
13Here the employer explicitly invited the Board to accept the facts alleged by the union as true for purposes of determining the motion. The union has not presented, and I am not aware of any authority for the proposition that a “prima facie motion” ought not be decided where it would require the Board to interpret provisions of the collective agreement and/or decide legal issues, or where such motion would require the Board to determine the merits of the grievance. To the contrary, numerous decisions including Re Difederico (supra) illustrate that the Board does exactly that when faced with a motion of this sort.
21The Board has stressed that in determining a “no prima facie case” motion, the facts asserted are to be accepted as true and that the Board would not engage in assessing the quality of evidence. Thus in Re Evangelista et al, 2009-1091 (Harris), the grievances alleged that “the inequitable assignment of these shifts to the Old City Hall court reporters is contrary to article 2.1 Management Rights, article 3 No Discrimination/Employment Equity, and article 60.1 Health and Safety”. The union asserted that the employer conduct impacted negatively on the grievors in different ways including causing them to be ill and causing one grievor to forego his religious observances. In dismissing the employer’s motion the Board at para. 11 stated:
11In essence, the Board is being asked to weigh the quality of the Union’s evidence, which is not appropriate at this juncture. For example, I am asked to reject the assertion of Mr. Rubinoff that he has foregone his religious observances because the scheduling of WASH court would make attendance difficult. The Employer also asks the Board to weigh the quality of the medical evidence that the scheduling of Wash court has caused illness. Rather, at this juncture, both of those allegations of fact are to be taken as true.
22In the instant case, the union was afforded the opportunity to make any factual assertions it wished to rely on. The Board therefore has the task of determining whether all of the facts asserted by the union in support of the grievances, if accepted as true, are capable of establishing the elements necessary to substantiate the violations alleged.
Discrimination on the basis of race/colour
23The union asserts that the presentation contained graphic imagery of poverty in the developing world and that the majority of those images depicted people of colour. Thus, it contends that the presentation violated article 3.1 of the collective agreement and s. 5.1 of the Ontario Human Rights Code, because it was exploitive, insensitive, and portrayed people of colour as objects of pity rather than full participants in society. The question then is whether or not all of those assertions, assuming them to be true and provable, are capable of establishing a violation of article 3.1 and S. 5.1 of the Code.
24Canada’s highest court has spoken on the requirements to be met to demonstrate prima facie discrimination. In Moore v. British Columbia (Education), (2012) 2012 SCC 61, 351 D.L.R. (4th) 451 (S.C.C.) at para. 33, Abella J said:
As the Tribunal properly recognized, to demonstrate prima facie discrimination, applicants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
25Similarly in Shaw v. Phipps, (2012) ONCA 155; 2012 ONCA 155, 289 O.A.C. 163, the Ontario Court of Appeal at para. 4 stated that to demonstrate a prima facie case of racial discrimination the following three elements were required to be established: 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.
26In its recent unanimous judgement in Peel Law Assn v. Pieters (2013) 2013 ONCA 396, 363 D.L.R. (4th) 598, the Ontario Court of Appeal per Juriansz JJA, following a review of the foregoing authorities, stated at para. 126 as follows:
126To find discrimination, the Vice-Chair had to be satisfied, after considering all the evidence, that the appellants were members of a group protected by the Code, that they were subjected to adverse treatment, and that their race and colour were factors in the adverse treatment.
27In Moore (supra) the claim was one of discrimination in relation to provision of a service. The Board is cognizant of the fact that here it is dealing with a no prima facie case motion. Applying the principles in the foregoing judicial authorities to the circumstances in the present motion, each of the grievors here, whether his/her claim is grounded on article 3.1 of the collective agreement or S. 5.1 of the Code, in order to demonstrate a prima facie case of discrimination, is required to assert facts capable of showing:
That he/she has a racial characteristic protected from discrimination under the collective agreement and/or the Code.
That he/she experienced an adverse treatment with respect to his/her employment.
That his/her protected characteristic was a factor in the adverse treatment.
28Union counsel argued that it is inappropriate for any employer to “bohemianize” and trivialize groups of people based on their race or colour. This is more so when the disparaging of coloured people took place in the workplace at a mandatory staff meeting. The Board agrees that disparaging of people on the basis of their colour, or any other prohibited ground for that matter, is inappropriate. However, that inappropriateness does not automatically result in the contravention of article 3.1 or s. 5 rights of each individual who received the presentation. The law is clear that to claim discrimination, the claimant – a complainant under the Code or grievor under a collective agreement – is required to show that he/she has a characteristic protected from discrimination. Since the allegation here is of racial discrimination, therefore, the grievors must have asserted that they have some racial characteristic that is protected under article 3.1 and/or s. 5.1 of the Code. None of the 39 grievors have done that. Therefore, their respective grievances do not get off the ground, and the remaining two conditions, namely that they suffered some adverse treatment with regard to employment, and that their protected racial characteristic was a factor in the adverse treatment, become moot. In the result, the union has not made out a prima facie case on that aspect of the grievances.
29Harassment and Bullying
The union claims that the presentation constituted harassment and bullying of the grievors. Reliance was placed on s. 5.2 of the Human Rights Code. The issue therefore is whether the union has asserted facts that are capable of establishing those allegations, if accepted as true.
30In Re Toronto Transit Commission (2004) 2004 CanLII 55086 (ON LA), 132 L.A.C. (4th) 225 (Shime) the Board was dealing with a grievance by an employee claiming that he was subjected to workplace harassment by his foreman. The arbitrator concluded that even in the absence of any explicit provision in the collective agreement prohibiting workplace harassment, he had jurisdiction to determine the grievance because it was an implied term of the collective agreement that the work of a supervisor must be exercised in a non-abusive, non-harassing manner. At para. 249, he stated:
249 Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment.
31While the particulars in the instant case refer to harassment and bullying, the union’s submissions were made generally, drawing no distinction between the two concepts. Counsel referred to case law standing for the proposition that although usually harassment involves a repeated pattern of conduct, in some cases where the conduct is very serious and egregious, a single act may constitute harassment. It was submitted that this was such a case. The fact that 39 individuals found the presentation to be unwelcome and offensive is indicative of the gravity of the employer’s conduct. It was argued that the union has asserted that the grievors were annoyed, bothered and embarrassed by the presentation, and that it comes within the definition of harassment.
32The definition of harassment is one based on an objective test. The question is not whether the conduct was perceived subjectively by the employee to be annoying, embarrassing etc. The test is whether a reasonable person would find it to be so. This is implied in arbitrator Shime’s definition which refers to conduct “which tends to” annoy etc. Assuming for the purposes of the instant motion that the presentation, when viewed objectively, would tend to have the negative impacts on the grievors as alleged (annoy, embarrass, offend, etc.), is that sufficient to possibly ground a violation of s. 5.2 of the Code? It should be noted that in Re Toronto Transit Commission (supra) the grievances were not based on a provision, statutory or collective agreement, prohibiting discrimination based on protected grounds. The arbitrator concluded that the collective agreement between the parties included an implied term prohibiting workplace harassment generally. There was no issue of any protected grounds raised, and nor discussed by the arbitrator.
33In contrast, the union here relies on s. 5.2 of the Code. It provides, inter alia, that every employee has a right to freedom from harassment in the workplace by the employer. However, the prohibition against harassment is not general or open-ended. Rather, the right is to freedom from harassment “because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability”. (Emphasis added). Thus, for there to be a contravention of s. 5.2 of the Code, the harassment must have been “because of” one or more of the protected characteristics. The case law is clear that if the harassment was because of a protected ground even in part, that constitutes a violation of the Code.
34The union has not asserted that the harassment alleged to have taken place was because of a protected characteristic possessed by any of the grievors. This is consistent with the Board’s earlier finding that the union has not asserted that any of the grievor’s belonged to a protected group. It follows that the facts relied on by the union are not capable of establishing harassment or bullying contrary to s. 5.2 of the Code.
Poisoned Work Environment
35The provisions of the Human Rights Code, s. 5.1 and 5.2 and article 3.1 of the collective agreement seek to prevent not only discrimination which targets particular employees, but also discrimination which affects a workplace generally. In these individual grievances the grievors claim that the employer created a poisoned work environment when it made the presentation depicting people of colour in a disparaging manner. In Ghosh v. Domglas Inc., Ontario Board of Inquiry decision dated June 5, 1992, 17 C.H.R.R. decision 16, at paragraphs 76-77, the Board wrote:
76It is now beyond question that the atmosphere in which an employee must work is a condition of his or her employment, and should that atmosphere be oppressive or “poisoned” for a minority group, that circumstance might amount to discrimination on a prohibited basis. Management personnel who know, or ought to know, of that condition but permit it to continue thereby discriminate against the affected employees even if they are not themselves actively engaged in the production of that atmosphere. Where such discrimination is based upon a prohibited ground it is caught by the Code. There is a long line of cases to that effect decided under the previous Ontario Code and this same reasoning has been found applicable in respect to the present Ontario legislation, see Lee v. T.J. Applebee’s Food Conglomeration Hotels (1987), 1987 CanLII 8551 (ON HRT), 8 C.H.R.R. D/3985. Amongst the earlier decisions are the following: Fuller v. Candur Plastics Ltd. (1981), 3 C.H.R.R. D/419; Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743; Ahluwalia v. Metropolitan Toronto Board of Commissioners of Police (1983) C. H.R.R. D/1757.
77The importance of the “poisoned atmosphere” or “poisoned work environment” principle under the present Code is that there may be known instances of harassment by anonymous employees, or of known harassing conduct not caught by S. 4(2) because no one perpetrator included in a “course” of such conduct, or the member of the minority group discriminated against by having to work in that poisoned environment may not have been the person harassed. In any event, as the Commission pointed out, the conduct in the workplace of the respondents in this case was repetitious and public. One of them was his supervisor from whom Mr. Ghosh received his daily work assignments, who had the authority to evaluate his performance and who was called upon by the employer for advice regarding promotional opportunities. It seems obvious to me on the evidence already reviewed that the atmosphere in which Mr. Ghosh was compelled to work was indeed “poisoned” for him and that this was because of his handicap. (emphasis added).
36The Board’s decision contemplates circumstances where the atmosphere in the workplace is oppressive or poisoned for a “minority group”. The Board states that such a circumstance “might amount to discrimination on a prohibited basis”. The Board’s reasoning makes it clear that such discrimination must be based on a prohibited ground to be “caught” by the Code. The Board goes on to consider the impact of the poisoned work environment on the complainant. It concludes that “the atmosphere in which Mr. Ghosh was compelled to work was indeed “poisoned” for him, and that this was because of his handicap”. (emphasis added) In Ghosh (supra) the complaint was upheld. The Board concluded that (1) he was disabled and (2) that because of his disability he was subjected to discriminatory treatment, such as denial of a promotion and salary increase, derisive imitations of his pronounced limp, and comments that he was faking the limp and had succeed in fooling the WCB to obtain a pension. That created a poisoned work environment for him.
37In the present case, there is no assertion that any of the grievors were members of a protected group or had a protected characteristic. Nor are any facts asserted that the workplace became poisoned for any of them because of a protected characteristic. The grievors may well have been offended by the presentation. However, there are no facts asserted that any of them had a protected characteristic let alone exposure to a poisoned work environment because of such a characteristic. Since the collective agreement and Code provisions relied upon by the union prohibit discrimination on the basis of specified grounds, there can be no contravention based on the asserted facts.
Anti-union discrimination
38Where a grievance alleges a violation of article. 3.2, the grievor and the union have the onus of satisfying two conditions. First, that there was discrimination or harassment of the grievors. Second, that such discrimination or harassment was practised by reason of the grievor’s membership or activity in the union. With regard to the second condition, the Board has held that a contravention of article 3.2 may be found where the employer’s exercise of management rights was tainted in whole or in part by an anti-union animus.
39The primary basis for the union’s assertion that article 3.2 was violated is a picture of a child with a bowl in hand, appearing to be begging on the streets. The caption states, “If you think your salary is low, how about her?”. Union counsel suggested that there was a general message in the presentation that the employees “should be happy with what they have, should stop asking for more, and instead should be producing more”. From the fact that this message was delivered during bargaining year, counsel urged the Board to conclude that the presentation could have the effect of discouraging the grievors and the union from pursuing more favourable terms and conditions during collective bargaining. Counsel submitted that to constitute a violation it is not necessary for the union to establish that the presentation had the desired effect, that the grievors were in fact dissuaded from pursuing their right to vigorously engage in union activity.
40The presentation was made by the employer in the purported exercise of its management right to provide direction and training to employees. To be successful, the union must assert that the manner of that exercise resulted in the denial of the rights under article 3.2 to the employees who have grieved. In order to do so, it is incumbent on the union to set out facts as to how each grievor was impacted by the presentation. There must be a disadvantage or penalty actually suffered, or at least threatened, because of his or her union membership or activity. No such facts have been asserted.
41In Re Dobroff et al, 2003-0905 etc. (Dissanayake) (supra) at paragraphs 42-43 the Board wrote:
42The onus is on the union to establish that the employer’s decision not to temporarily assign the grievors as Geoscientist 4, was tainted by anti-union animus. Vice-Chair Briggs in Re Kerna, 2002-0944 observed at p. 38 that “… the onus was on the union to establish anti-union animus. It has long been established that clear and cogent evidence is needed for such a finding …”. Counsel for the union submitted that in this regard arbitrators have recognized that employers usually do not advertise their anti-union motivations, and that the union does not need “a smoking gun” to establish anti-union animus. Counsel referred me to Re Horizon Operations (Canada) Ltd. (2000) 2000 CanLII 50129 (BC LA), 93 L.A.C. (4th) 47 (Coleman) where the arbitrator quotes from a decision of the B.C. Labour Relations Board in Re Forano Ltd., [1974] 1 C.L.R.B.R. 13. In the latter decision at pp. 66-67, the Board wrote:
If the real purpose of a firing was the union involvement, an employer may not search for some arguable justification in the employee’s earlier behaviour and advance this as the cause, ex post facto. The crux of such an unfair labour practice case is the employer’s motivation in the discharge, something which rarely will be disclosed by admissions. Employers don’t ordinarily advertise their anti-union activities. Such intention must be pieced together from a pattern of circumstantial evidence.
43I agree that an admission or “a smoking gun” would rarely be found in anti-union animus cases or cases of discrimination on the basis of a prohibited ground. Thus in appropriate circumstances, anti-union animus may be inferred from circumstantial evidence. However, as Vice-Chair Gray observed in Re Damani, 1581/95; 1703/98, proof is nevertheless necessary. Anti-union animus will not be inferred merely because a grievor believes that it exists. At para: 17-18, Mr. Gray wrote:
17I accept as a general matter that racism “is out there”, as the grievor put it at one point. I agree with union counsel’s submission that racism often is latent, in the sense that those whose conduct is influenced by racist attitudes may not openly acknowledge it. It is not necessary for the union to prove that discrimination on the basis of race was the sole or even a major reason for employer conduct detrimental to the grievor. If discrimination on the basis of race played any part in the employer’s treatment of the grievor, then it breached the collective agreement provision that prohibited such discrimination. The presence and effect of racist attitudes may be difficult to detect and prove. It does not follow, and the union does not suggest, that proof is therefore unnecessary, or that the mere allegation of racial discrimination shifts the burden of disproving the allegation to those accused of it. The same may be said about anti-union animus and discrimination on the basis of union activity.
18The grievor says she cannot understand why she has not advanced in the civil service unless it is because she is the victim of discrimination on the basis of her race or union activity or both. Her subjective belief that she is the victim of discrimination, however strong, is not proof that she is. This would be so even in the absence of evidence that she is inclined to exaggeration in labeling her experiences.
At para: 20-22 he stated:
20The failure of management to either do as Ms. Hill recommended or explain why it would not or did not do so is perplexing. So is management’s failure to either do as the Minister’s delegate directed or explain why it would not or did not. In all the circumstances, however, these things are not a sufficient basis for the inference the union asks me to draw. Certainly there is no other basis for such an inference.
21There is no suggestion, and no evidence, that the grievor was the only classified employee allegedly disadvantaged by the management practices about which she and the union were complaining in 1995 and afterwards. There is no evidence concerning the actual or apparent racial origins of other allegedly disadvantaged employees, or of those members of management responsible for the practices, or of those employees alleged to have benefited from them. In so far as the employer had work opportunities to assign that were not subject to posting and competition, the grievor asserts in a general way that she was denied opportunities afforded other employees and that the opportunities she got were not as advantageous as those that others got. Again, the evidence does not identify the actual or apparent racial origins of the decision-makers or of the other employees to who they allegedly gave preferential treatment. I do not suggest that evidence of the matters just referred to would have been necessary, or sufficient, for these grievances to succeed. These observations are simply meant to illustrate and underscore my conclusion that the evidence before me is not an adequate basis on which to sustain the claims made.
22Disappointing as it undoubtedly is for Ms. Damani, the fact that an employee with her years of satisfactory service did not get the sort of work opportunities she sought during the period in question is not so surprising as to warrant, without other objective evidence of it, an inference that discrimination played a part in the outcome. The evidence put before me does not support the grievances.
42In each of the foregoing cases the union had claimed that the grievors had suffered some disadvantage such as denial of temporary assignments (Re Dobroff); discharge (Re Forano Ltd); denial of advancement in the civil service (Re Damani), because of their union activity. The respective Boards had the task of determining whether there was evidence to support a finding that the denial of temporary assignments, the discharge and denial of advancement were wholly or partially “by reason of their union membership or activity”.
43In contrast, in the instant case, there are no facts asserted to show that any of the individual grievors suffered any differential treatment, detriment or disadvantage because of their union membership or activity. The employer’s “message” that they should be content with their terms and conditions of employment by itself, with no sanction, actual or threatened, attached in the event they seek more favourable terms and conditions, does not infringe the right under article 3.2 to freedom from discrimination by reason of membership in the union or union activity.
44Moreover, the only relevant facts asserted are that the presentation took place during a collective bargaining year and that a message was conveyed to the effect that the grievors should be content with their wage levels and should try to produce more without complaining. Besides these assertions of fact, the union states that Ms. Stratchan “felt that the presentation was a tool to “disincentivize” the union from bargaining an advantageous agreement”. In Re Damani (supra) the Board found the employer’s conduct and absence of an explanation to be “perplexing”. (para. 20). The Board also acknowledged that the grievor strongly believed that she was a victim of discrimination on the basis of her race or union activity or both. However, the Board held that in the absence of any factual basis, it was not able to draw an inference of anti-union animus, based on the grievor’s subjective belief. Similarly here, the Board finds that if it is accepted as true that the presentation conveyed the “message” alleged and that it occurred during a bargaining year, that is not a sufficient basis to draw the inference that there was a motivation, in whole or in part, to discourage the grievors from exercising their right to engage in union activity.
45Union counsel stated during her submissions that if the motion is upheld, that would amount to the Board stating that what the employer did was “fine”. She urged the Board not to do so. With respect, that line of reasoning ignores the role and jurisdiction of the Board in reviewing the employer’s exercise of management rights. It is not within the Board’s authority to supervise whether or not the employer was exercising its management rights appropriately, fairly or effectively. It is trite law that the Grievance Settlement Board may intervene only where the employer’s exercise of management rights results in the denial or abridgement of a right employees have, explicitly or implicitly, under the collective agreement or a statutory provision. It has no free standing jurisdiction to review the exercise of management rights for reasonableness or effectiveness. (See, Re Dobroff, supra, and the authorities cited therein). The Board’s acceptance for purposes of this motion that the presentation was offensive, distasteful and inappropriate as a motivational tool, cannot possibly lead to a finding that any of the collective agreement or statutory rights of the grievors were violated.
46The dismissal of these grievances on the basis of absence of jurisdiction is certainly not, and ought not be seen as, a finding by the Board that the employer conduct was “fine” or that the Board endorses such conduct. The fact that 39 individuals found the presentation to be offensive to such an extent to cause them to grieve, speaks for itself. The employer, through communications of regret/apology appears to have realized that the presentation was negatively received by a large number of employees. The Board’s determination is that as a matter of law, the grievors have not asserted facts, if accepted as true, are capable of establishing that any of them had their rights under any of the collective agreement and statutory provisions relied upon, denied or abridged. The Board so finds. As a result the employer’s motion is upheld and all of the grievances are hereby dismissed.
Dated at Toronto, Ontario this 14th day of November 2014.
Additional Grievors
Grievor
GSB Number
OPSEU File Number
Brydges, Jason
2012-1013
2012-0506-0019
Boileau, Marsha
2012-1014
2012-0506-0020
Carr, Michael
2012-1015
2012-0506-0021
Davey, Douglas
2012-1016
2012-0506-0022
Graham, Paul
2012-1017
2012-0506-0023
Gray, James
2012-1018
2012-0506-0024
Letterio, Lori
2012-1019
2012-0506-0025
Marchant, Ron
2012-1020
2012-0506-0026
Murray, Glenn
2012-1021
2012-0506-0027
Whynot, Jordan
2012-1022
2012-0506-0028
Wiebe, Bradley
2012-1023
2012-0506-0029
Wilkinson, Philip
2012-1024
2012-0506-0030
Woodcox, Daren
2012-1025
2012-0506-0031
Anderson, Mike et al
2012-1071
2012-0506-0033
Bosher, Daniel
2012-1072
2012-0506-0034
Bijabhai, Anas
2012-1073
2012-0506-0035
Bush, Jacqueline
2012-1074
2012-0506-0036
Coit, Jennifer
2012-1075
2012-0506-0037
Currie, Douglas
2012-1076
2012-0506-0038
Eustace, Erik
2012-1077
2012-0506-0039
Fenton, Jim
2012-1078
2012-0506-0040
Grabar, Robert
2012-1079
2012-0506-0041
Greenidge, Tyrone
2012-1080
2012-0506-0042
Kemp, Louise
2012-1081
2012-0506-0043
Leeman, Jason
2012-1082
2012-0506-0044
Louks, Joanna
2012-1083
2012-0506-0045
McConnell, Richard
2012-1084
2012-0506-0046
Mohammed, Guitri
2012-1085
2012-0506-0047
Nichols, Ryan
2012-1086
2012-0506-0048
Pulver, Lisa
2012-1087
2012-0506-0049
Reid, Kyle
2012-1088
2012-0506-0050
Sanna, Adriano
2012-1089
2012-0506-0051
Santangelo, Corrine
2012-1090
2012-0506-0052
Singh, Dennis
2012-1091
2012-0506-0053
Steblaj, Suzanne
2012-1092
2012-0506-0054
Strachan, Edie
2012-1093
2012-0506-0055
Wozniak, Michael
2012-1094
2012-0506-0056
Zeeman, Anna
2012-1095
2012-0506-0057