GSB#2015-0498, 2015-0629

UNION# 2015-0551-0009, 2015-0551-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lo)

Union

• and -

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

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Indika Chandrasekara Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Ann Fowler Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

December 7, 2015

Decision

1This mediation/arbitration process was conducted in accordance with Article 22.16 of the Collective Agreement.

2The grievor, Mr. Andes Lo, has been employed by the Ministry of Correctional Services and Community Safety in Probation and Parole for more than 32 years. His immediate supervisor, Mr. R. Alonso, has been employed for an equally long period and they had an uneventful working relationship during that time. That changed on August the 24, 2014.

3On that day, at 3:30 p.m., the grievor and Mr. Alonso were walking in the hallway towards each other. When they met, one stepped to the left, the other stepped to the right. This happened a few more times, preventing either one from moving forward. Finally, Mr. Alonso took steps to resolve the impasse.

4According to the grievor, Mr. Alonso took his hand in both of his hands and steered him around so that they could continue on their separate ways. The grievor illustrated how Mr. Alonso had taken his hand as if it were a handshake and placed his other hand on the grievor’s elbow, steering the grievor around him. They continued on their separate ways and nothing more was said at the time by either of them.

5The grievor went on vacation the next day but could not stop thinking about the incident. He said he had been shocked by Mr. Alonso’s action. He and Mr. Alonso had enjoyed a good working relationship in the past and the grievor could not understand why he had touched him so inappropriately, since he had known that the grievor had been seeing a physical therapist for a frozen shoulder.

6When he returned from his vacation he tried to perform his work as usual but was haunted by the incident. He considered it an insult and he began to fear Mr. Alonso.

7The grievor filed a WDHP complaint in connection with this incident and was later advised that his complaint was outside the scope of the policy.

8The grievor could not dismiss these feelings and went to the Employee Assistance Program (EAP) for help in dealing with his emotions.

9On November 13, 2014, he went on sick leave for 6 weeks. While he was off he wrote a letter of complaint to Mr. Alonso’s supervisor and on December 23, 2014, he met with him and Mr. Alonso, who stated that, although he was still unsure of what had upset the grievor, he acknowledged the grievor’s feelings and apologized. They shook hands at the end of the meeting and Mr. Alonso left with the belief that the grievor had accepted his apology.

10The grievor returned to work December 29, 2014. On February 17, 2015, he filed a grievance.

11On March 3, 2015, Mr. Alonso knocked on the grievor’s office door and when the grievor opened the door he stepped inside. When he began to ask the grievor about a work matter related to procedures the grievor asked Mr. Alonso to put it in writing. When Mr. Alonso stepped forward, closing the gap between them, the grievor pushed his chair away from the desk to avoid him. Mr. Alonso asked the grievor if he was afraid of him, when the grievor said that he was Mr. Alonso said “that’s on you, not me”.

12The grievor was feeling disturbed and felt that Mr. Alonso had been trying to intimidate him. On March 11, 2015, he filed a grievance. The grievor filed another WDHP complaint and on May 4, 2015 was advised that it had been determined that there had been no violation of the WDHP Policy.

13For redress the grievor asked for a written apology from Mr. Alonso for the incidents of August the 24, 2014 and March 3, 2015; three weeks’ vacation to compensate him for the trauma and the right to file another WDHP complaint with the goal of restoring their previous relationship.

14I have set out the grievor’s and Mr. Alonso’s versions of August 24, 2014, to demonstrate that there is no material dispute concerning the facts. Mr. Alonso did place his hands on the grievor but there is no evidence that it was intended as an assault or an attempt to intimidate. Mr. Alonso has apologized. There has been no breach of the collective agreement.

15The grievances are dismissed.