GSB#2013-3008

UNION#2013-0526-0134

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cooray)

Union

• and -

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

Employer

BEFORE

David R. Williamson

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Labour Practice Group Counsel

HEARING

July 29, 2014, and April 14 & May 13, 2015.

DECISION

1Mr. Cecil Cooray, the Grievor, is employed in a 1500 hour Flexible Part-Time (“FPT”) position as a Court Clerk and Registrar (subsequently also referenced as “Registrar”). He has worked as a Civil Court Registrar since approximately 1998.

2In his grievance dated June 11, 2013, Mr. Cooray claims that he has been discriminated against on the basis of age and gender in not being scheduled for assignments in Family Court. Mr. Cooray is sixty-five years of age. It is his contention that it is young female employees who predominantly and in the great majority receive assignments to work as Registrar in the Family Court.

3By agreement of the parties the instant hearing was conducted by way of the mediation-arbitration process provided for by Article 22.16 of the collective agreement. In general terms this process sacrifices some of the formalities of a more conventional arbitration hearing in favour of a more expedited process. As such this decision, while resolving the instant grievance, is without any legal precedent for future cases. The parties agreed further that the award in this matter could be rendered without the requirement to provide full or elaborate reasons for the decision.

4The hearing proceeded by way of brief opening statements from the parties, followed by viva voce evidence from Mr. Cooray, during which time his “will say” statement was received and on which he addressed questions put to him by Counsel. Testimony was also given by Ms. Adele di Monte, Supervisor, Court Operations, and by Ms. Barbara Krever, Manager, Court Operations. Also entered into evidence were a number of written documents including: extensive e-mails sent and received by Mr. Cooray; a Performance Development Plan and Appraisal Form pertaining to Mr. Cooray dated October 4, 2012; the Grievance filed by Mr. Cooray in this matter dated June 11, 2013, in which he contends he was discriminated against on the basis of age and gender; a complaint filed by Mr. Cooray with the Human Rights Tribunal of Ontario (HRTO) on October 15, 2013, in which he alleges he was discriminated against on the basis of age, gender identity, gender expression, race, colour, place of origin, and that he was made subject to reprisal or threat of reprisal; and a Training Plan for Family Court for Mr. Cooray dated January 22, 2014.

5The evidence in this matter discloses the following set of facts.

6Mr. Cooray started working for the Ontario Public Service in January 1997 as a Court Services Officer, and in approximately 1998 he became a Court Clerk and Registrar in the Civil Court. In September 2007, as Court Clerk and Registrar, he was assigned the status of “Flexible Part Time 1500” (1500 FPT). From September 2008 to March 2009 Mr. Cooray worked in this capacity in Family Court at 47 Sheppard where, by his testimony, he was trained in the use of the computer data base in Family Court known as FRANK.

7During the period from September 2008 to June 2010 the Grievor worked on assignments other than Court Clerk and Registrar duties. Following this, Mr. Cooray was assigned to work as Court Clerk and Registrar in the courts at 393 University Avenue, 361 University Avenue, and the Ontario Court of Appeal at 130 Queen Street West. He continues to work in this position. During his time in this location up to late May of 2012 the Grievor worked occasionally in Family Court.

8On May 22, 2012, a Family Court Judge expressed to Mr. Fernandez, the Grievor’s then Supervisor, his serious concerns with Mr. Cooray’s work performance in Family Court, and requested that he not be assigned to work there in future. Ms. Krever was informed at the time by Mr. Fernandez of the Judge’s concerns regarding the Grievor’s work performance, and Mr. Fernandez subsequently kept her informed of all developments in this matter up until January 22, 2014. Ms. Krever worked with Mr. Fernandez in developing the position taken with Mr. Cooray that as some deficiencies had been pointed out in the Grievor’s performance in Family Court, Mr. Cooray would only be assigned to Family Court if he took further training.

9As Court Clerk and Registrar, the Grievor’s duties and responsibilities include a variety of pre, post, and in-court clerical work associated with the operation of the Courts, the overall administration of the Courts, and assisting the judiciary. The Grievor, as other Registrars, is scheduled on a daily or weekly basis in one of the Civil Courts such as Civil Trials, Divisional Court, Estates Court, Bankruptcy Court, or Family Court. There are twenty-four Court Clerk and Registrars in the 1500 FPT category working out of 393 University Avenue who are assigned to specific courts on the basis of operational needs, their respective skills and abilities, and with the goal of trying to bring about an equal distribution of hours for employees in the same category. The evidence adduced does not demonstrate that age, gender, or any other prohibited ground, is taken into account by the Employer in assigning duties in general, making assignments to the Family Court in particular, or in distributing hours.

10In July or August of 2012, Mr. Cooray was asked by Mr. Fernandez if he wanted more Family Court Training and said he did not. Mr. Fernandez told the Grievor that he would only be assigned to Family Court if he completed further training.

11In approximately August, 2012, Mr. Cooray made a request to his then manager, Mr. Michael Fernandez, that he be assigned to work in Family Court at 393 University Avenue for two weeks per month, and cited his seniority as one justification for this request. Mr. Cooray was told that seniority was irrelevant to the decision of to which court he would be assigned. When Mr. Cooray enquired of Mr. Fernandez in November, 2012, why he had still not been assigned to work in Family Court he was told that there had been some earlier complaints received from Family Court Judges that the Grievor did not have sufficient familiarity with the computer system used in Family Court. Mr. Cooray asserts, without any documentation whatsoever, that during the times he worked in Family Court he received only compliments about his performance, and never complaints.

12On October 4, 2012, Mr. Fernandez held a performance review with Mr. Cooray. The performance review document states that, in relation to working in Family Courts, Mr. Cooray requires more training in forms and scheduling to ensure full support to the judiciary and the public.

13On November 13, 2012, Mr. Cooray advanced his request to Ms. Barbara Krever, Manager of Superior Court Operations for Civil and Family Courts. A week later on November 19, 2012 a meeting took place at which were present, Ms. Krever, Mr. Fernandez, and Mr. Cooray. In this meeting, and despite the protestations of Mr. Cooray that he had been trained in Family Court at an earlier time when working at 47 Sheppard Avenue, the Grievor was told by Ms. Krever that he needed to shadow another Registrar in Family Court before he could be assigned to Family Court himself. Before this meeting ended Mr. Cooray informed Ms. Krever that this matter was causing him severe stress and had raised his blood pressure. There are no medical reports or other documents in evidence to support Mr. Cooray’s assertion as a finding of fact.

14After this meeting of November 19, 2012, Mr. Fernandez tried to schedule some more training for Mr. Cooray in Family Court but was rebuffed by the Grievor who said he did not want to be trained by junior females.

15Subsequent to November 19, 2012 and up to mid-May, 2013, Mr. Cooray continued to send e-mails and letters to Ms. Krever in pursuit of having his request met and expressing his view that the Employer was discriminating against him by giving preferential treatment to young female Court Registrars in assigning them to Family Court.

16By e-mail dated January 11, 2013, Ms. Krever told Mr. Cooray that staff are not able to choose the practice area they are assigned to, that there is no entitlement for FPT staff to be scheduled beyond their annual hours category, and that if Mr. Cooray had any further concerns he could file a grievance.

17On May 10, 2013, in reply to another e-mail from Mr. Cooray, Ms. Krever reminded him that she had previously responded to his concerns, that she considered the matter to be closed, and asked Mr. Cooray to cease writing to her on the matter. She also advised Mr. Cooray that his continuing to write her on the matter that had already been dealt with could be seen as insubordination and subject to discipline.

18On May 14, 2013, the Grievor wrote to a former Attorney General about his concerns. This letter was passed on to the then Deputy Attorney General of Ontario, and to Ms. Beverly Leonard, Director of Court Operations, Toronto Region and the Court of Appeal for Ontario. By way of an e-mail Ms. Leonard reviewed the allegations Mr. Cooray had made and provided the Employer’s reply to those allegations. Ms. Leonard informed Mr. Cooray that he would not be assigned to the Family Courts in the absence of additional training. She stated that he had been offered the opportunity for additional training in Family Court on a number of occasions and that he had refused these offers. She advised Mr. Cooray that management is responsible for assigning staff and that she would not make any further comments on the scheduling issue. She directed Mr. Cooray to cease writing about it and advised him that he could pursue a grievance in accordance with his Collective Agreement rights if he wished.

19On June 11, 2013, Mr. Cooray filed the Grievance that is the subject matter of this arbitration and in which he alleges he has been discriminated against on the basis of age and gender.

20On October 15, 2013 Mr. Cooray filed a complaint with the Human Rights Tribunal of Ontario (HRTO) in which he alleges he was discriminated against on the basis of age, gender identity, gender expression, race, colour, place of origin, and that he was made subject to reprisal or threat of reprisal. The HRTO deferred the Application on March 19, 2014 pending the determination of the instant Grievance.

21On January 22, 2014, the Employer and the Grievor agreed to an arrangement whereby the Grievor was to be trained in Family Court during the period January 27, 2014 to February 28, 2014. The Grievor completed this training and job shadowing arrangement and was then assigned to work in Family Court on an occasional basis. It is the Grievor’s view that little computer work is done in court, that he received no training on the court computer system at that time, and that it was humiliating for him to be seen to be trained by a junior court clerk when he has so much seniority.

22Following this foregoing training Mr. Cooray worked in Family Court from March 3rd to March 14th, and then went off on sick leave from March 18th to March 21st. Upon his return to work, the Grievor informed his then supervisor that he didn’t want to be assigned to Family Court and said words to the effect of ‘Thanks, that’s good for now.’ He made no further request to work in Family Court prior to July 29, 2014.

23On July 29, 2014, the parties met at the Grievance Settlement Board for mediation in relation to the instant grievance. At that time the Grievor stated he wanted to be assigned to work in Family Court. Mr. Cooray was then subsequently assigned to Family Court on a fairly frequent basis commencing August 29, 2014.

24On November 17, 2014, Ms. Di Monte, one of the two Court supervisors at that time, received a complaint from a Judge in Family Court regarding the Grievor’s work performance. She passed this complaint on to Ms. Fasulo-Liut, the other Court Supervisor who supervised Mr. Cooray’s work. Ms. Fasulo-Liut then met with the Team Lead Judge who directed her not to schedule Mr. Cooray in Family Court in the future. Ms. Fasulo-Liut then met with the Grievor on November 21, 2014, and passed on this information. In response, Mr. Cooray said he did not want to work in Family Court anymore.

25The evidence shows there are three categories of position of Court Clerk and Registrar. One is the 1500 hours FPT, the second is the 1000 hours FPT, and the third is unclassified. The position as a whole tends to attract younger people seeking entry into the public service as well as those entering as a second career to work fewer hours, and there is a substantial amount of employee turnover. Those in the 1500 category tend to have been in the position for a longer period of time and are more senior. They tend not to leave their position and are generally older.

26In 2014 there were 24 Court Clerk and Registrars in the 1500 FPT category working out of 393 University Avenue of which 18 are female and 6 are male (including the Grievor). Of the other five males: three have asked not to work in Family Court, one is scheduled in Family Court on occasion in accordance with his stated preference; and one is on accommodation wherein he does not work in Family Court.

27In addition to the foregoing six males working as 1500 FPT Court Clerk and Registrars, two males are employed in the 1000 FPT category and four males are employed in the unclassified category. Of the two males in the 1000 FPT category, one is scheduled in Family Court on a regular basis and the other has asked not to be assigned to Family Court. Of the four males in the unclassified category, three are scheduled to work in Family Court on a regular basis and one has requested not to work in Family Court.

28In the 1500 FPT category for 2013 there were twenty-three Court Clerk and Registrars, comprised of seventeen females and 6 males. The hours worked by them in all courts (including Family Court) during 2013 were:

Overall average hours worked were 1706

Average hours worked by males were 1761

Average hours worked by females were 1688.

Hours worked by the Grievor were 1646.

29In the 1500 FPT category for 2014 there were twenty-four Court Clerk and Registrar positions, consisting of eighteen females and six males. The hours worked by them in 2014 in all courts were:

Overall average hours worked were 1624.

Average hours worked by males was 1598.

Average hours worked by females was 1633.

The Grievor worked 1799 hours.

30In its submission the Employer brought forward the motion, unopposed by the Union, that this Board in adjudicating Mr. Cooray’s grievance, assume jurisdiction and consider the scope of the grievance to include all the grounds cited by the Grievor in his complaint to the HRTO.

31The Union in its submission, advised the Board that both the Union and the Grievor were of the view that in hearing Mr. Cooray’s grievance under Article 22.16, this expedited hearing process had been efficient, worked well, and that all relevant evidence had been put forward in their case.

32The issue to be determined is that of whether as of the date of the grievance the facts support the Grievor’s subjective view that he was discriminated against in receiving assignments to work in Family Court not only on account of his age and gender, but on the basis of any of the prohibited grounds set out in the Grievor’s HRTO complaint. This Board has the jurisdiction to consider the matter of whether the Grievor was discriminated against by the Employer under employment related legislation as well as under the collective agreement.

33Having reviewed the foregoing chronology of events it must be concluded that management has exercised its powers to assign the required Court Clerk and Registrar work assignments in Family Court in accordance with its management rights as set out in Article 2.1. The facts demonstrate that Court Clerk and Registrars are assigned to work in specific courts on the basis of operational needs, their respective skills and abilities, and the objective of aiming for an equal distribution of hours for employees in the same category. The facts, and the chronology of events, show that for periods of time the reason Mr. Cooray was not being assigned to Family Court was because members of the judiciary determined he did not possess the required skill set to work there and be effective, and that Mr. Cooray declined a number of offers to receive further training during 2012 and 2013.

34The facts also show that there were twelve males in the same location as the Grievor on University Avenue, working as Court Clerk and Registrar in the two FPT categories and in the unclassified category. The evidence shows that, excluding Mr. Cooray, of the other eleven males, five asked not to work in Family Court, one was on accommodation whereby he does not work in Family Court, and the other five were assigned to work in Family Court on either a regular basis or, as requested by one man, occasionally. These numbers cannot be found to support the contention of Mr. Cooray that, because he rarely saw them scheduled to be working there, males as a whole were discriminated against in receiving assignments to work in Family Court.

35Neither do the facts adduced show that the male Court Clerk and Registrars in the FPT 1500 category were discriminated against by being assigned fewer hours of work across all the courts to which they could be assigned. In 2013 there were twenty-three Court Clerk and Registrars in the FPT 1500 category, consisting of seventeen females who worked an average of 1688 hours, and six males who worked an average of 1761 hours. The conclusion that must be drawn from the foregoing facts is that the Employer did not discriminate against male Court Clerk and Registrars in the 1500 FPT category in terms of total hours worked.

36Nor do the facts demonstrate that Mr. Cooray was discriminated against in terms of age. This claim must be found to be nothing more than an unsubstantiated and bald assertion. The evidence adduced does not allow the conclusion to be reached that age is taken into account by management in any way when assigning Registrars to a particular Court or in distributing hours to be worked.

37The Grievor’s subjective belief that he has been discriminated against in a certain way or ways, however strongly and sincerely held, is not proof that he has been. There has to be some objective evidence from which such a conclusion may be inferred. (See: Re Damani, 1581/95 (Gray)).

38Indeed, on this same theme, the Grievor has not advanced any evidence whatsoever that the grounds of age, gender identity, gender expression, race, colour, place of origin, or any other prohibited ground were taken into account by the Employer when assigning duties in general, making assignments to the Family Court in particular, or in the distribution or assignment of hours to be worked.

39To put it somewhat differently, the onus is upon Mr. Cooray to establish a prima facie case of discrimination on the grounds alleged and to do so by bringing forward clear, convincing, and cogent evidence. (See: F.H. v McDougall, 2008 SCC 53 at para 46 as cited in Murrell v. Community Network, [2013] O.H.R.T.D. No. 433 (Aterman)). This has not happened.

40As such, and for all the foregoing reasons, the Grievance of Mr. Cooray must be dismissed.