GSB#2012-4478, 2013-0368

UNION#2012-0313-0039, 2013-0313-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Dargavel)

Union

• and -

The Crown in Right of Ontario

(Ministry of Health and Long-Term Care)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Tim Hannigan

Ryder Wright Blair & Holmes LLP

Counsel

FOR THE EMPLOYER

Paul Meier

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

January 23, March 3, 2015

Decision

1I have two grievances before me. One is a group grievance dated October 30,

2012, in which Ms. H. Dargavel and Ms. L. Sheehy essentially claim that the Employer has contravened the Collective Agreement by failing to provide a scent free work environment. Ms. Dargavel can experience an allergic reaction causing discomfort when exposed to certain scents. Ms. Sheehy can experience migraines when she is exposed to certain scents. The second grievance is an individual grievance dated March 13, 2013, filed by Ms. Dargavel. This grievance arose out of a meeting held in February 2013, following a complaint she had made about an exposure to a scent on a co-worker. At the meeting to address her complaint, Ms. Dargavel alleges that a manager asked her to explain her medical condition and why scented products are an issue for her in the presence of the co-worker against whom she had made the complaint.

2The grievors are employed at the Georgian CACC at Barrie, Ontario. For a number of years, Ms. Dargavel and Ms. Sheehy have raised issues about scents in their office environment. Starting on October 22, 2013, the parties have appeared at the GSB on a few occasions in an effort to resolve the issues giving rise to these particular grievances. I do not propose to set out in detail the nature of these issues and the efforts the Joint Health and Safety Committee (“JHSC”) and the parties have made during this time to resolve them. I simply note that when the parties appeared at the GSB on January 23, 2015, a nagging issue about wipes was resolved. On that day the parties entered into an agreement which provided that the JHSC would meet to address four other matters and that the parties would appear before me on March 3, 2015, to hear and determine any outstanding issues. After some discussions to clarify one matter at the beginning of the hearing on March 3, 2015, I was advised that many issues had been settled and that the parties intended to reference these matters in a written agreement. Union counsel indicated that there were two outstanding issues and I proceeded to entertain submissions on these two issues. This decision addresses the two unresolved issues.

3Union counsel advised that a remaining issue for each grievance is a claim for damages. The claim for damages with respect to the group grievance is based on the length of time it took for the Employer to address the concerns of the grievors about scents at the workplace. The claim for damages in Ms. Dargavel’s individual grievance is based on a breach of her privacy rights. Although Union counsel made a considerable effort to convince me otherwise, I am satisfied that it would not be appropriate to award damages in the circumstances of this case.

4It did take the JHSC and the Employer some time to address some of the issues which were raised by the grievors. I can appreciate that the grievors became frustrated because it took a long time to get to where the parties are today on the issue of scents in the workplace. However, I have no doubt based on the information provided to me that the JHSC and the parties had been engaged in good faith efforts to address the issues raised by the grievors. Unfortunately the issues they were raising can be difficult and can take some time to address satisfactorily for a variety of reasons. If I had the sense that the issues the grievors were raising were not taken seriously by the Employer I would have taken a different view of the Union’s request for damages. There is no indication that the Employer did not take the concerns of the grievors seriously. In my view, the time it took to satisfactorily address the scent issues raised by the grievors is not a basis in this instance for an award of damages to the grievors.

5On the matter of the meeting in February 2013 and the privacy issue raised by Ms. Dargavel, I note that the Employer has a different version of what occurred at that meeting. As well, I note that at the hearing on March 3, 2015, the Employer clarified and agreed that it will not ask an employee to disclose and explain a medical condition in the presence of a co-worker. Even on the basis of Ms. Dargavel’s version of what had occurred at the meeting, I have no doubt that the manager was engaged in a good faith effort to resolve her complaint against a co-worker who denied wearing a scent. In my view, the alleged breach of privacy was on the lower end of the scale. Although a declaration of a breach may have been warranted, I would not have awarded Ms. Dargavel damages for what occurred at the meeting.

6Accordingly, for the above reasons, the Union’s request for damages as a remedy for both grievances is hereby denied. I will remain seized of these grievances.