GSB#2015-1240

UNION#2015-0542-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ahmed)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 21, 2016

Decision

1The Employer has moved to dismiss this matter, asserting that the grievance, as more fully set out in the Union’s particulars, fails to establish a prima facie case. The Union opposes that motion, and urges the Board to accept jurisdiction.

2The grievance, which was filed on April 1, 2015, alleges as follows:

STATEMENT OF GRIEVANCE

3I grieve unfair & secret re-classification and promotion of 2 OPSEU members to increase their salary by 14% to 21% and decade long discrimination by several managers of Ministry of Transportation, according to Article 2, 3.1, 6.2, 6.3, 7 and all other Articles inclusive according to the Collective agreement. This secret incident was just disclosed on 18th Dec. 2014, though [it] happened several years ago. …

4Particulars were submitted by the Union on February 25, 2016. They provide, in relevant part, as follows:

1. The Grievor, Masud Ahmed, is 53 years old. He has been employed with the OPS in the position of a Senior Bituminous Materials Engineering Officer for about 12 years. He is classified as an ESO4.

2. The Grievor has been a licensed Engineer with Professional Engineers of Ontario (“PEO”) for all of those 11 years. Membership in PEO provides an engineering licensing designation of P. Eng.

3. The Grievor received his Engineering training in Bangladesh, and previously worked as an engineer in a Canadian construction company.

4. The Grievor has received no discipline and no performance problems have been brought to his attention over the past 11 years.

5. Until around May 2015 the Grievor’s unit contained around four individuals performing work as Senior Engineering Officers. Of those four, the Grievor is the only individual who is not white and Canadian born.

6. In or around May 2015 an individual in the Grievor’s unit, [Mr. T] retired. Thereafter, there were three individuals in the Grievor’s unit. It is of note that the remaining two individuals were relatively recent hires.

The Employer, at the hearing, asserted that the two individuals had more seniority than the Grievor. The Union responded that they were more recent to the ESO4 position, if not the Ministry.

7. On or around December 18, 2014 it came to the Grievor’s attention that [Mr. T] was making a significantly greater salary than the other individuals in the unit. It is the Grievor’s understanding that this is because Mr. T was reclassified as an ESO5. Neither the Grievor nor the Union was notified as to this reclassification. The Grievor understands this classification took place around five or six years ago.

At the hearing, the Employer, on consent, introduced the confidential WIN Employee Action Request (WEAR) form for Mr. T’s retirement. It lists his classification as ESO 4, and sets out his annual salary at the time he applied for retirement. It is undisputed that his salary is identical to that of the Grievor. The Union acknowledged that it has no documentary evidence to the contrary, but asserts that it would be the Grievor’s evidence that Mr. T told him this in a conversation in December 2014.

8. The Grievor is aware of the position of a Petrographer. The Grievor understands that there is only one Petrographer in the province. This is an OPSEU position. Around nine years ago this position was filled by [Mr. B]. Mr. [B] was an English born white man. Mr. [B] retired around nine years ago.

9. After his retirement, the Petrographer position was reclassified to a GeoScientist 4 from an ESO4. The position was then posted and filled by a white, Canadian born woman. This has resulted in a very significant pay increase of around 20%.

At the hearing, the Employer asserted that the Grievor did not have the license required for this position and did not apply for it at the time. This was not disputed by the Union.

10. In the Grievor’s department there are around 15 Laboratory Technician positions. The majority of these positions are filled by individuals of South Asian or Caribbean descent. The Grievor has noted that two vacancies in this department are now filled by recurring contract positions rather than full time permanent positions. The individuals in these precarious positions are of South Asian and Caribbean descent.

11. Moreover, the Grievor has noted that one Laboratory Technician has been hired into a full time position; the Grievor understands that he has been “rolled over” according to Article 31A.15.1.1. This individual is a white, Canadian born man.

At the hearing, the Employer asserted that two individuals in the unit have been “rolled over” into full-time positions, one white and one South Asian. It also asserts that most of the positions in this unit are full-time positions. This was not disputed by the Union.

12. It is the Union’s position that these events show a connection between the Grievor’s status under the Human Rights Code, as an older, racialized worker with international credentials, and adverse treatment, insofar as he has received significantly lesser pay than white, Canadian born individuals doing substantially the same work.

The relevant provisions of the collective agreement, as set out in the grievance are as follows:

Article 2, Management Rights

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location or the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

Article 3 – No Discrimination

3.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or disability as defined in Section 10(1) of the Ontario Human Rights Code.

Article 6 – Posting and Filling of Vacancies or New Positions

6.2 The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required, and the hours of work schedule as set out in Articles UN2 and COR2, (Hours of Work). Where a position is posted within the Ontario Public Service, the internal notice of vacancy shall also state the work location where the position currently exists, that the position is represented by the Union and the particular bargaining unit which contains the position.

Article 6.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor.

Article 7 – Pay Administration

7.1.1 Promotion occurs when the incumbent of a regular position is assigned to another position in a class with a higher maximum salary than the class of his or her former position.

Reasons for Decision

5In Re OPSEU (Courture et al.) and Ministry of Government Services, GSB No. 2008-3329 (Dissanayake), at par. 6, the Board set out the standard to determine whether a grievance should be dismissed on the basis that the particulars provided by the union do not disclose a prima facie case for a violation of the collective agreement: “[A] prima facie motion would succeed if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged.” In Re OPSEU (Evangelista et al.) and Ministry of Attorney General, GSB 2009-1091 et al. (Harris), the Board held that “in only the clearest of cases should the board decline to hear a matter before concluding it has no jurisdiction.” For the reasons that follow, I conclude that the Employer’s motion to dismiss should succeed in this case.

6Here, the grievance itself only refers to the “unfair & secret reclassification and promotion of 2 OPSEU members to increase their salary by 14% and 21% and [a] decade long discrimination by several managers of Ministry of Transportation.” The particulars give further detail on the two OPSEU members that are referred to – the retired Mr. T and the reclassified Petrographer position after the retirement of Mr. B nine years ago. The particulars give no further detail, at all, concerning the alleged “decade long discrimination by several managers of Ministry of Transportation.” Except for allegedly receiving less pay than Mr. T, or the revised Petrography position holder, there is no further explanation of any adverse action taken by management directly involving the Grievor. It is undisputed that the Grievor is not a Lab Technician and has never held that role. The Union, at the hearing, stated that the Grievor felt strongly that there was discrimination by management against older, non-white employees who did not possess Canadian credentials, but provided no specific allegations of adverse treatment other than the ones mentioned in the particulars. There was no allegation in the grievance or in the particulars concerning a “poisoned workplace.”

7In terms of the facts, the WEAR form for Mr. T’s retirement clearly indicates that he was not “secretly” reclassified to an ESO5 position, but remained, at all material times, in an ESO4 position, the same position and rate of pay as the Grievor. The Union’s assertion that the Grievor will testify that Mr. T told the Grievor that he had been reclassified years before does not change the situation. Even if the Grievor testifies to that, and if it is established that Mr. T told him that, it does not make it true. That, actually, is classic hearsay and why hearsay is not admissible for the truth of the matters asserted. The Union acknowledged that it had no contrary documentary evidence. Accordingly, it cannot be accepted that there was a “secret” reclassification of Mr. T and the facts, as set out in the particulars and the undisputed documentary evidence, do not establish that the Grievor was paid less that Mr. T.

8The undisputed facts, therefore, do not establish that the collective agreement was violated. As there was no reclassification of Mr. T, and they were paid the same amount, there could be no violation of Article 2, 6 or 7. Nor could there be a violation of Article 3.1.

9The GSB cases cited by the Union, as well as the Employer, provide that to make out a prima facie case of discrimination, three elements must be established:

1. That he or she is a member of a group protected by the Code;

2. That he or she was subjected to adverse treatment; and

3. That his or her protected characteristic was a factor in the alleged adverse treatment.

Re OPSEU (Bonneveld) and Ministry of Community Safety & Correctional Services, 2013 CarswellOnt 18171, 240 L.A.C. (4th) 197 (Briggs), at par. 44; Re OPSEU (Morgan) and Ministry of Children and Youth Services), 2014 CarswellOnt 6056 (Tims), at pars.28-29; Re OPSEU (Brydges) and Ministry of Transportation, GSB No. 2012-1012(Dissanayake), at par. 27.

10In this case, it is not disputed that the Grievor is a member of a number of protected classes under the Ontario Human Rights Code. He is 53 years old; he is from Bangladesh; he is a person of colour; he has foreign credentials. The particulars, including the documentary evidence, however, fail to establish that he was subjected to any adverse treatment. The basis of the claim of adverse treatment – that Mr. T was paid more than the Grievor for substantially the same work – is not based on fact, as evidenced by the WEAR form. It simply did not occur. He was not paid less than Mr. T for performing similar work; he was paid exactly the same. As there was no adverse action, the third point is not relevant. But I would note that, even if Mr. T had been paid more, there were three individuals affected by that, two of whom were white. Consequently, even if it had occurred, this was not something that affected him alone.

11For somewhat different reasons, the Grievor’s claims concerning the reclassification of the Petrograph position, at the ESO4 level, to a GeoScientist 4 position, which is paid substantially more, do not make out a prima facie violation of the collective agreement. Putting aside the inordinate nine-year delay in bringing that issue forward, the undisputed facts show that the Grievor did not have the required qualifications for the position and did not apply for it. There is no allegation that the required qualification was unnecessary. The case law establishes that “for an individual grievance the Employer’s conduct must affect the individual in a material way.” Re OPSEU (May et al.) and Ministry of Community Safety and Correctional Services, GSB No. 2011-1151 (Abramsky), at p.10. Whether the Ministry properly reclassified the Petrograph position or not, and who filled it, is not something that the Grievor may challenge, even though it results in, in his view, an inequity. As established in Re OPSEU (Anthony et al.) and Ministry of Labour, GSB No. 1999-1977 et al. (Abramsky), at p. 8:

The problem is that the Union did not allege any unfairness or discrimination in regard to the Employer’s actions in relation to the grievors. It has alleged improper action in relation to two other individuals ... which it asserts resulted in an inequitable situation. But for the Board to have jurisdiction, an inequitable situation is not enough….

The Board’s jurisdiction depends on an allegation that the Employer’s action interfered with the grievors’ rights under the collective agreement. In this case, those elements are missing. There is no allegation that the Employer improperly denied the grievors a merit pay increase – only that the Employer improperly granted it to [two other employees]. Nor is there an allegation that the Employer’s actions impacted any rights of the grievors’ under the collective agreement.

Under this decision, an individual may not grieve the Employer’s actions in regard to the compensation of other employees. Yet that is exactly what the Grievor is attempting to do here.

12In addition, the reclassification of the Petrograph position did not result in “adverse treatment” to the Grievor. It is undisputed that he did not meet the minimum qualifications for that position (or that the minimum qualifications were improperly imposed); nor did he apply for the job. I would also note that the person who was most disadvantaged by the pre-reclassified Petrographer position, Mr. B, was a white male.

13For the same reasons, the Grievor’s claims concerning the Lab Technicians also do not raise a prima facie case that the Grievor may pursue. He is not, and never has been, a Lab Technician. Whatever issues the Lab Technicians may or may not face, it is not for this Grievor to challenge them. It would be for the Lab Technicians to raise, or the Union, but not the Grievor through an individual grievance. He has no standing to raise such a claim. It is significant that this is not a Union or policy grievance. It is an individual grievance. As noted above, “for an individual grievance the Employer’s conduct must affect the individual in a material way.” Re OPSEU (May), supra at p. 10.

14The Union claimed, in argument, that although some of the particulars did not impact the Grievor directly, they are part of a pattern of mistreatment of older visible minorities, and foreign-born workers, which has created a difficult work environment. It submits that the Grievor has been denied benefits given to younger, white employees, and asserts that this discriminatory behaviour is “demoralizing” and “a daily insult.”

15With respect, as set out in the grievance and the particulars, the only benefit that is alleged to have been denied to the Grievor is the wage disparity created by the “reclassification” of Mr. T to an EO5 position, which did not in fact occur. No other alleged adverse action was raised. Nor was there any claim, or particulars provided, in regard to a “difficult” or “demoralizing” work environment. If such matters occurred, the place to raise them was in the particulars. The grievance asserts that there was a “decade long discrimination” by management, yet no additional particulars were provided.

Conclusion

16For all of the above reasons, I cannot find that the particulars establish the necessary elements to substantiate that the Employer has discriminated against the Grievor because of his age, colour, or national origin, as alleged by the Union, or that the Employer has violated the other provisions of the collective agreement. I conclude that the Employer’s motion to dismiss must succeed.

17Accordingly, the grievance is dismissed.