GSB#2013-0513, 2013-0514, 2013-1216, 2013-1217, 2014-0424, 2014-0425, 2014-0426

UNION#2012-0211-0036, 2013-0211-0005, 2013-0211-0008, 2013-0211-0009, 2013-0211-0015, 2013-0211-0016, 2013-0211-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lunan)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 17, 25, 2014

Decision

1There are seven grievances before me filed between December 7, 2012 and October 4, 2013. This preliminary decision addresses two motions brought at the first day of hearing. In the first motion, the employer argued that in providing particulars the union was expanding the scope of the grievances and that it was not until the grievance of October 2013 that the Union alleged that there had been a history of discrimination and harassment against the grievor. The union argued that all the grievances clearly allege breaches of Article 3, inter alia. Essentially the grievances are complaints about management failing to protect the grievor from harassment and discrimination. Some of the grievances allege that management engaged in treatment that was harassment and discrimination.

2Having reviewed the submissions of the parties, I find I must disagree with the employer’s first motion. On the face of the grievances, the union has plead a breach of Article 3 in each one. The first grievance states:

I grieve violation of the Collective Agreement including but not limited to Articles 2, 3, 9 and 22.10 and any related OPS directives, Policies & Procedures (including, but not limited to, Workplace Discrimination & Harassment Policy) the Occupational Health and Safety Act and its Regulations, any other relevant legislation and any other applicable articles or law. By not addressing the discriminatory/harassing behaviour, management allowed discrimination/harassment to be practiced against me by reason of sex, and/or sexual orientation, and/or marital status, and/or family status as per the above noted Articles and Law. Further, the Ministry did not provide me a copy of the WDHP, as promised. Reference WDHP File No: Labour-1213-3433

3The second grievance cites Article 3, inter alia, and complains about the denial of a compassionate leave. The third grievance states:

I grieve violation of the Collective Agreement including but not limited to Articles 2 & 3, and any related OPS directives, Policies & Procedures, any other relevant legislation, and any other applicable articles or law. I am being harassed and bullied for filing a WDHP complaint and grievance. Program Assistants indicated on MOL Event Notification e-mails that I did not answer my phone. When the manager was asked why this was done and if it is being done to any other inspectors management never responded. As a result this is causing me undue stress and hardship which has caused me adverse effect on my physical and psychological well-being.

4The fifth grievance states:

I grieve an ongoing violation of the Collective Agreement including but not limited to Articles 2 & 3, 9, 22.10 and any related OPS directives, Policies & Procedures (including but not limited to WDHP) Occupational Health and Safety Act, Ontario Human Rights Code, any other relevant legislation, and any other applicable articles or law. Ongoing management bullying, harassment and discrimination. Management interference of an Inspector. MOL Event #04142GQBPS19

5Similar language is found in the sixth grievance:

I grieve an ongoing violation of the Collective Agreement including but not limited to Articles 2 & 3, 9, 22.10 and any related OPS directives, Policies & Procedures (including but not limited to WDHP) Occupational Health and Safety Act, Ontario Human Rights Code any other relevant legislation, and any other applicable articles or law. Ongoing management bullying, harassment and discrimination. Management e-mails Subject: Expenses, Monthly Paper Work, Premium Pay Claims, Work Station, Compressed Work Week.

In addition, the final grievance before me dated October 4, 2013 states:

I grieve an ongoing violation of the Collective Agreement including but not limited to Articles 2 & 3, 9, 22.10 and any related OPS directives, Policies & Procedures (including but not limited to WDHP) Occupational Health and Safety Act and its Regulations, the Ontario Human Rights Code, any other applicable articles or law. Management has knowingly and continuously engaged in a course of vexatious conduct by harassing, bullying and discriminating against Monique A. Lunan, as well as condoning the behaviour of Monique’s colleagues that is also vexatious, harassing and discriminatory. Such actions have created a poisoned work environment.

6As Arbitrator Abramsky said in Jones et al (see Appendix A), the test for whether a party is raising a new issue at arbitration is well settled in the Board’s jurisprudence. In Jones, et al, she explained as follows:

Thus, in determining whether an issue raised by a party at arbitration is properly before a board of arbitration, the board determines whether, on a liberal reading of the grievance, the issue in dispute may be viewed as part of or inherent in the original grievance, the lack of precision in the written grievance should not be a technical bar to a board of arbitration’s jurisdiction. Conversely, if the matter is truly a different, new issue, the board will decline jurisdiction.

Arbitrator Abramsky goes on to quote from Greater Sudbury, a decision of Arbitrator Dissanayake that:

to include an issue through a ‘liberal reading’ I must be able to conclude that the employer reasonably should have understood upon reading the grievance that the issue in question was part of the grievance.

I am satisfied that the particulars of incidents of alleged harassment and discrimination do not raise a new issue. The employer should have understood from the first grievance that allegations of harassment and discrimination were issues in the case.

7In the second motion, the employer argued to limit the scope of the evidence. The employer argued that at the very least, following the general three-year guideline, only evidence for three years before the October 2013 grievance was filed should be allowed. The union seeks to tender evidence back to 2004, and in the alternative for three years before the date of the first grievance filed on December 7, 2012. It has provided particulars of alleged mistreatment of the grievor during her entire work history at the ministry.

8The Board has held that a grievor alleging harassment and discrimination can be permitted to adduce evidence over a period of three years before the date of the grievance. See Patterson, (Leighton) and Patterson, (Abramsky) (Appendix A). Evidence of events up to three years before the grievance should allow the union sufficient opportunity to prove a pattern of harassment and not be so long ago as to be difficult to defend. However, the Board has also held that it is not a rigid rule. It is a guideline: the Board must consider each case on its facts. See O’Brien, (Leighton) (Appendix A). Thus, it could be fair to the parties to extend the three years or shorten the period.

9There are some special circumstances in this case for why it might be reasonable to allow limited evidence beyond the three-year grievance guideline. The first grievance before me arose because of alleged comments made by a co-worker about the grievor’s behaviour when she first joined the ministry in 2004. The employer did not argue actual prejudice although he relied on case law that supports a decision that evidence from 2004 is “simply too old”. See Patterson, (Leighton). While I am not prepared to allow the union a carte blanche to tender evidence between 2004 and 2013, it may be appropriate to hear evidence on the incident, which allegedly occurred during the grievor’s training in 2014. Whether this evidence is relevant or necessary is a decision better made during the hearing.

10I am also of the view that evidence of approximately three years before the first grievance dated December 7, 2012 should suffice to give the union a fair opportunity to prove harassment and discrimination. By approximate I mean that the three years should not be “to the day,” especially if there is an important event that occurred just beyond the three years. The precise line is better determined during the hearing.

11Thus having carefully considered the submissions of the parties I hereby dismiss the first motion and grant the second in part as indicated above.

Dated at Toronto, Ontario this 15th day May 2015.

Appendix A

The employer relied on the following cases: Ontario Public Service Employees Union (Patterson) and The Crown in Right of Ontario (Ministry of Public Safety and Security), GSB Nos. 2001-0925 etc. (Leighton); Ontario Public Service Employees Union (Patterson) and the Crown in Right of Ontario (Ministry of Children and Youth Services), GSB Nos. 1989-1546 etc. (Abramsky); Ontario Public Service Employees Union (O’Brien) and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Security), GSB No. 2003-1881 (Leighton); Ontario Public Service Employees Union (Brown) and The Crown in Right of Ontario (Ministry of Labour), GSB Nos. 2011-0583 (Dissanayake); Ontario Public Service Employees Union (Rafol) and The Crown in Right of Ontario (Ministry of Children and Youth Services), GSB No. 2009-1115 (Dissanayake); Ontario Public Service Employees Union (O’Brien) and The Crown in Right of Ontario (Ministry of Labour), GSB No. 2006-1204 (Abramsky); Greater Sudbury Hydro Plus Inc. v. Canadian Union of Public Employees, Local 2705 (Armstrong Grievance), [2003] O.L.A.A. No. 542; Blouin Drywall Contractors Ltd. And United Brotherhood of Carpenters and Joiners of America, Local 2486, (1975), 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103; Ontario Pipe Trades Council, Applicant v. Torbear Contracting Inc. et al., OLRB No. 0163-02-R, 2005 CanLII 35124 (ON LRB).