GSB#2015-2531, 2015-2628, 2015-2629, 2015-2630

UNION#2015-0599-0015, 2015-0599-0016, 2015-0599-0017, 2015-0599-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Zingel)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 29, 2017

Decision

1The Board is seized with four related grievances filed by Ms. Krista Zingel in October 2015. Ms. Zingel (“grievor”) was employed as a Compliance Officer at the Financial Services Commission of Ontario in the Ministry of Finance.

2The union has filed particulars and a “will say” statement setting out the testimony that would be presented through the grievor. The employer presented a motion that all of the grievances be dismissed on the grounds that the union’s particulars and “will say” statement do not make out a prima facie case for any violation of the collective agreement. This decision determines that motion.

3For purposes of this motion is suffices to note that the grievances in substance allege that the employer contravened article 3 (bullying and harassment) and article 9 (health and safety), that this was done as a reprisal for her raising concerns about the employer’s failure to exercise its mandate properly, and that the employer’s conduct forced the grievor to resign (constructive dismissal).

4The Board received a document brief from the union, and case law from both parties. Submissions were also made by both counsel. The Board has reviewed and considered all of that.

5The legal principles that apply in determining these motions are well established. In Re Couture et al, GSB 2008-3329 (Dissanayake) at para 6, the Board stated that such a 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”. Thus the facts asserted in the union’s particulars and “will say” statement must, for purposes of this motion, be accepted as true. The Board has stated that for this purpose, “arguments or conclusions do not constitute allegations of fact”, and are not to be accepted as true. (Re Martin et al, GSB 2013-3579 (Anderson) at para.3). The Board has also held that in accepting the alleged facts, the fact that those facts are disputed by the employer is immaterial. In Re Martin et al at para.15, the Board wrote

More generally the Ministry disagrees that the workload of the Caseworkers is excessive. However, for the purposes of this motion I am required to assume that the facts particularized by the Union are true. I am unable to say that those facts are incapable for supporting the conclusion that the workload is excessive. The Ministry argues that I any event the workload and other stresses identified by the Union are inherent to the position of Caseworker and that any risk of harm is both reasonable and necessary. That may prove to be the case on the evidence. However for the purposes of this motion I must treat the Union’s particulars as true.

6Similarly, the Board has also opined that in these motions it is inappropriate to weigh the evidence. The factual assertions must be accepted as true. (See, Re Evangelista et al, GSB 2009-1091; 2010-1854 (Harris) at para.12).

7Applying those principles to the union’s particulars and “will say” statement the Board concludes that the facts asserted therein are capable of supporting a violation of one or more of the articles relied upon by the union. As Vice-Chair Anderson stated in Re Martin et al, (supra, at para. 15), “Whether the union will be able to prove those facts and whether I will reach the same conclusion having heard all the evidence and full argument is another matter altogether”.

8It follows that the instant motion is dismissed. The hearing will continue as scheduled.