GSB#2015-1489

UNION#2015-0229-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Shukla)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Nick Mustari Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

James Cheng Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

December 3, 2015

Decision

1The Employer and the Union at the Ontario Correctional Institute agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. Most of the grievances were settled through that process. However, a few remained unresolved and therefore require a decision from this Board. The Protocol provides that decisions will be issued within a relatively short period of time after the actual mediation sessions and will be without reasons. Further, the decision is to be without prejudice and precedent.

2Mr. Rajesh Shukla has been a Correctional Officer since February of 2008. On May 2, 2015, he filed a grievance that alleged violations of the various provisions of Collective Agreement and Ministry policies. Specifically the grievances stated these violations were caused by:

….failing to 1) maintain levels of sensitivity and; 2) promote health professional interpersonal skills among staff. This culminated in an incident on March 31, 2015 wherein a manager’s suggestions and actions adversely impacted my physical emotional and psychological senses of well-being. While I do not believe that this incident was a deliberate, malicious action or harassment, this particular situation had a massive effect on both me and my family. In fact, it caused me to suffer another significant ‘stress injury’.

3As noted in the statement of the grievance, there was an incident on March 31, 2015. Mr. Shukla’s supervisor accused him of photocopying an obscene gesture of his own hand and putting the copy under the door of her office. According to the nine-page occurrence report written by the grievor less than a week after this incident, the Operating Manager, Ms. S., reached for his hand, inspected it and declared that he was the owner of the gesturing hand. This was said in front of residents and other staff. Both Ms. S. and the grievor then went to her office when she again said that the grievor was the culprit. However, when Ms. S. actually compared Mr. Shukla’s hand to the photocopy she realized that she was wrong. As noted by the grievor in his occurrence report she said that she thought he had done it “as a joke” because she had being teasing him the day before.

4There was further discussion about this matter with one other Correctional Officer and other Operational Managers. It was agreed that the grievor could leave the workplace early. He reported that both he and his spouse were very worried about this situation.

5This accusation was a matter of great concern for the grievor because of a situation that he had experienced a year earlier. It is not necessary to set out that experience but it is fair to say that it was quite stressful for the grievor and this accusation brought back much of that anxiety. Indeed, much of the nine-page occurrence report is a description of the facts and impact of that situation upon the grievor and his family and not the facts giving rise to this grievance.

6At the Med/Arb session the grievor was asked if he thought he was the subject of discrimination on any prohibited ground. He replied that he was not. Indeed, his answer was not particularly dissimilar to his comment in the occurrence report wherein he said that he and the other Correctional Officer “told Mr. Brazzier that we did not believe that Ms. S. had any malicious intent behind her actions. However we both asserted that her behaviour was neither fair nor professional.” Certainly no facts or allegations were proffered that would lead to a finding of discrimination.

7I appreciate that this matter was stressful on the grievor. However, while the conduct of Ms. S. was far from optimal, it was not intended to harm. According to the facts as set out, she certainly would have had no reason to appreciate the prior experience of the grievor would cause the exacerbation of his anxiety. According to the grievor’s own occurrence report, when she was told by the grievor of his great stress and the reasons for his anxiety she immediately apologized.

8After considering all of the facts and submissions made I am of the view that the grievance should be upheld in part. I order the Employer to pay the grievor $2500.00 less statutory deductions.

9I remain seized.