GSB#2015-2498, 2015-2551, 2015-2758, 2016-0141, 2016-0182, 2016-0354, 2016-0355, 2016-0801, 2016-0802, 2016-1546, 2016-1740, 2016-1898
UNION#2015-0545-0013, 2015-0545-0014, 2015-0545-0017, 2016-0545-0007,
2016-0545-0009, 2016-0545-0013, 2016-0545-0014, 2016-0545-0018, 2016-0545-0019, 2016-0545-0025, 2016-0545-0028, 2016-0545-0033
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Daley)
Union
- and -
The Crown in Right of Ontario (Ministry of Health and Long-Term Care)
Employer
BEFORE
Bram Herlich
Vice-Chair
FOR THE UNION
Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Counsel
HEARING
April 18, 2017
Decision
1In a decision dated January 5, 2017, I dismissed a number of grievances filed on behalf of Mr. Daley. At the commencement of those proceedings, 18 grievances were before me. The parties agreed that three of those would not form part of the proceedings. The employer asked that 12 of the remaining 15 grievances be dismissed on various grounds. As a result of the decision that followed, six of those grievances were dismissed. The matters were to continue on the merits on April 18, 2017.
2Between the release of the decision and the scheduled continuation date, the parties agreed that three further grievances would form part of these proceedings. However, when the hearing convened, the employer indicated that it wished to move for the dismissal of two of the three “new” grievances.
3Of the three new grievances one (Board File No. 2016-1740) challenges the imposition of discipline (a one-day suspension). The employer takes no preliminary issue with this grievance proceeding on the merits. But it asked that the other two grievances be dismissed without any further hearing. During the course of the hearing day, however, the parties were able to resolve one (Board File No. 2016-1546) of the two remaining grievances. Thus, it need not be further dealt with in this decision. That left one new grievance (Board File No. 2016-1898). The employer moved to have this grievance dismissed as failing to disclose a prima facie case. This decision deals with that motion.
4The grievance was filed on November 2, 2016 and relates primarily to events which transpired on November 1, 2016. The particulars filed disclose that on the previous day, the grievor had returned to work following a ten-day absence. The employer requested documentation attesting to the grievor’s ability to return to work. He consequently attended at his physician’s office, secured such documentation and, after he had returned to work the following day, provided it to Gary Marchand, the warehouse manager. The two engaged in “light conversation and banter”. The particulars continue as follows:
Shortly thereafter, Mr. Yarosh approach them in an aggressive manner and said in a harsh tone to the Grievor, “Why are you here? You can’t be here without a letter from your doctor”, or words to that effect.
The Grievor told Mr. Marchand he (Daley) did not want to speak with Mr. Yarosh.
Mr. Marchand asked Mister Yarosh to leave. The latter complied and walked away and Mr. Marchand and Mr. Daley continued to converse.
Approximately thirty (30) seconds later, Mr. Yarosh re-approached the two in an aggressive and hostile matter and said in a demanding tone, “I have work for him to do; why are you still having this conversation”, or words to that effect.
Mr. Marchand is Mr. Yarosh’s superior.
The Grievor expressed to Mr. Marchand his dissatisfaction with Mr. Yarosh, and stated “It always ends this way with him [Yarosh]”, or words to that effect.
Mr. Marchand waved Mr. Yarosh away.
The conversation between Mr. Marchand and the Grievor ended shortly thereafter and Mr. Daley returned to work.
Mr. Yarosh’s conduct on November 1, 2016 led to the … grievance being filed on or around November 2, 2016.
5The grievance essentially asserts that the above facts support a conclusion that Mr. Yarosh has acted in manner that amounts to harassment and discrimination and that the employer has fostered a poisoned work environment in failing to eliminate such conduct. The union also asserts (in the particulars, though not explicitly in the grievance) that the employer’s impugned conduct constitutes a reprisal for the grievor’s trade union activity.
6The employer contends that the facts set out, even if true and provable, support no such conclusions. At best, says the employer, these particulars suggest that Mr. Yarosh spoke harshly and that the grievor’s resulting discomfort was addressed by Mr. Marchand’s having twice removed Mr. Yarosh from the scene. There can be no inferential link leading from these facts to the conclusions urged by the union.
7The union began its submissions by indicating (as it did when the previous motion was heard) that it relies on ALL of the particulars filed in respect of ALL of the (now at least 10) grievances proceeding to hearing. The single grievance currently under consideration is, it is asserted, part of a pattern of treatment of the grievor by Mr. Yarosh. A pattern, says the union, in which management has been complicit.
8I am, in part, in agreement with the submissions of both counsel.
9First, there is no hesitation whatsoever in my mind that if this grievance were proceeding on its own, divorced from any other context, I would accede to the employer’s request. There is little doubt in my mind that this grievance, standing alone, fails to disclose any collective agreement or statutory violation. To that extent, I am in agreement with employer counsel.
10However, I am also in agreement with union counsel, at least to the following extent and although union counsel may not have put it exactly thus: the instant grievance simply cannot succeed unless the facts giving rise to it are tied to some pattern of repeated impropriety by the employer. That is, of course, precisely what the union indicates it intends to establish.
11In this regard, some of the comments I made in my earlier decision (at para. 41) may, with necessary modifications, have some continuing application:
… if the union can establish that the employer acted with improper motives or otherwise engaged in conduct amounting to harassment, it may well be that some remedial response would be warranted. Again, it is important that the nature of this contest is clear. The union bears the onus […] The ultimate question may be: did the grievor’s conduct merit the attention it received from the employer or did the employer’s response amount to harassment or was it otherwise tainted by some improper motive. The employer need not establish that its response met any standard of just cause and the union cannot succeed unless I am persuaded that there was some improper conduct or nefarious motive on the employer’s part in the events related to these two grievances.
12In the circumstances – and significant in this respect is my assessment that the quantum of evidence that will be required to address the facts as pleaded in the instant grievance is likely to be relatively marginal in the context of the entire proceeding – I am prepared to allow the union to proceed with this case on its merits. It does, however, appear relatively certain that, unless the union can achieve some measure of success in the other (non-discipline) grievances already before me, the fate of the instant grievance will resemble that of the six grievances that have already been dismissed.
13The employer’s motion is dismissed. The hearing will continue on the days that have previously been scheduled.
Dated at Toronto, Ontario this 4th day of May 2017.