GSB# 2014-4402
UNION# 2014-0232-0060
Full list of files attached in “Appendix “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Asztemborski et al)
Union
- and -
The Crown in Right of Ontario (Treasury Board Secretariat)
Employer
BEFORE
Felicity Briggs
Arbitrator
FOR THE UNION
Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Susan Munn Treasury Board Secretariat Legal Services Branch Counsel
HEARINGS
June 14 and September 6, 2017
Decision
1Forty-four Systems Officers filed identical grievances in June of 2014 which stated that “the Employer is in violation of, but not limited to, Articles 2, 3, 9 of the Collective Agreement as well as any other Employment Health and Safety policies; Health and Safety Legislation of Acts.” By way of remedy each requested, “that the bullying, harassment and discrimination cease and desist immediately. That the management team at Guelph Data Centre be sent for sensitivity training. That the Employer takes steps to improve the environment to improve health and safety.”
2In its opening statement the Union explained that one manager, Mr. Budd, has engaged in ongoing inappropriate and harassing conduct. According to the Union, the severity of his comments are such that this Board should issue remedial declarations; award damages; and issue an order that Mr. Budd attend training to address his unacceptable behaviour.
3It was the Employer’s contention that there has been no such harassment and the Union would be unable to establish that Mr. Budd engaged in any conduct – much less a course of conduct – that was inappropriate or harassing.
4At the commencement of the hearing twenty-seven grievances were put into evidence. While all grievors were given the opportunity to attend and proffer evidence, only two Systems Officers did so.
5Both Union witnesses provided a will-say statement in advance of our first day of hearing.
6Vipin Sharma’s signed will-say Statement said:
I have worked in the Ontario Public Service since around 1997.
Since April 2001 I have worked at the Data Centre Operations Branch in the Guelph Office.
Mr. Gordon Budd has been the Manager of that office and my manager since in and around 2004.
In December 2012, Mr. Budd posted a note on the men’s washroom door threatening to have staff’s locks cut off the staff lockers if staff did not provide information indicating whose lock was on each locker by a given date.
I felt this was a threat and this threat poisoned my workplace.
For quite some time, Mr. Budd has been taking a group of his favorite employees for breakfast or lunch every Friday, but does not include all employees in this social workplace activity. I am one of the excluded employees.
This causes me to feel socially excluded and out of favour with my manager, and to an extent the coworkers he does favour.
On or around February 14, 2014, a Stage 2 meeting was scheduled to take place in respect of a group grievance filed by seven DCO employees, including myself.
Management’s initial communication advised that the meeting would be held at OPSEU’s offices in Guelph. Local President Jacqueline Smith attended this location as instructed and waited there for quite some time. This meeting never began.
In fact, management had changed the meeting to a different location and advised us, the grievors, but not Ms. Smith. We were therefore forced to attend the meeting without union representation. I believe this was done intentionally to intimidate us and deprive us of union protection during the grievance meeting.
On Wednesday May 21, 2014, Operations Control Centre (“OCC”) staff were advised that if they required external training they needed to have their requests in by Friday May 23 to the Senior Manager. Most staff, including myself had not had a Performance Appraisal in a long time. I was therefore unclear what training plans I should be considering. Even with such appraisals in place, 2 – 3 days’ notice is wholly inadequate and this unrealistic deadline constitutes harassment.
Staff were subsequently advised that there was no budget for such training and it was put on hold.
On June 23, 2014, management advised staff that employees could no longer exit and re-enter the OCC without first flashing their security cards to exit the OCC room in the GDC.
This was implemented against the Production and OCC Analysts while staff in the common work areas enter and leave the washroom and Kitchen Areas with zero monitoring. Senior management continues its attack against Shift Staff, generating a hostile/oppressive environment to work.
7At the time of the filing of his grievance Mr. Sharma was an Operations Control Centre Analyst. At the time of the hearing he no longer worked in the Guelph Office having obtained an AMAPCEO position.
8In cross-examination Mr. Sharma was asked whether he saw Mr. Budd post the notice regarding the locks and lockers. He did not actually see Mr. Budd post the notice. Rather, he and other analysts discussed the matter and determined that – at the very least - it must have been posted on his instructions. Although Mr. Sharma felt the note was quite intimidating and threatening, he failed to ask Mr. Budd, Mr. Budd’s assistant or anyone else in a managerial position who actually posted the notice. He conceded that it is “part of a manager’s job” to know who has a particular locker.
9When asked about Mr. Budd taking certain employees to breakfast or lunch on Fridays, Mr. Sharma conceded that he is only at work during the day on Fridays one Friday per month. Further, because his daily hours of work are different from those of Mr. Budd, his own lunch and break times are shorter and are often taken at a different time than those employees who – like Mr. Budd - work the day shift Monday through Friday. Mr. Sharma also agreed that he does not always eat lunch in the break room. There are times when he warms his food in the breakroom and he eats at his workstation.
10The stage two grievance meeting that Mr. Sharma raised in his will-say statement was the subject of some cross-examination. He received a copy of the email invitation to this meeting from his Union representative. When he could not recall the precise details set out in the meeting invitation, he was shown and identified the document. The stated subject was “placeholder for stage 2 grievance meeting” and the location was the “meeting room in lobby beside security.” On the day of the meeting Mr. Sharma, together with his Union representative went to the meeting room in the lobby beside security located in the building at 1 Stone Road. When the management representatives did not appear at the expected time the Union representative phoned the Employer and was told they would be there momentarily. When the Employer still failed to appear other calls were made and it eventually became clear that the meeting was to be held in the meeting room beside security at the Guelph Data Centre, not at #1 Stone Road. Once it became clear that the parties were in two different buildings Mr. Sharma and his Union representative then went to the meeting room at GDC and the meeting was held. To be clear, Mr. Sharma agreed that the sentence in his will-say statement that he had to attend a grievance meeting without union representation was not factual.
11The grievor was asked in cross-examination about training. He agreed that there is a workplace mix between mandatory training regarding his duties and individual requests based on skills that individuals wished to obtain. He conceded that notwithstanding comments made in his will-say statement he did make a written request for external training in June of 2014. He did not ultimately obtain permission for the training as training opportunities were put on hold. The grievor did not know who actually made the decision to cancel the training but was of the view that it was Mr. Budd’s decision because “he’s the boss”. Mr. Sharma testified that he was told by another employee that “as per Mr. Budd, there is no budget for training.”
12Mr. Sharma was also questioned about the change in security access to the Operation Control Centre. The OCC is a secure area to which only certain employees have access. He testified that it was Mr. Budd who advised that that the security features would be altered. When it was suggested that the reason for the change in security was to prevent “tailgating” - which is the practice of a second employee entering directly behind an employee who swiped their security card thereby causing potential confusion as to the whereabouts of staff. Mr. Sharma said that the rationale for the new practice was never communicated to staff – “which was typical of Mr. Budd” - and that failure was a form of staff intimidation. When pressed as to who in management “advised staff that employees could no longer exit and re-enter the OCC without first flashing their security cards ….” Mr. Sharma finally agreed that he was told by Mr. Cameron John, Staff Manager, and not Mr. Budd. However, Mr. Sharma was of the view that it was Mr. Budd who really made the decision. The grievor understood that the change was the result of a business requirement but maintained that the problem from his point of view was that the change in practice was never explained.
13In re-examination Mr. Sharma said that there was no open communication with Mr. Budd and that if direction was given it was simply followed and not discussed because the employees did “not have the courage to bring forward” matters. He thought if he did raise concerns there would be some form of retaliation including a reprimand. He suggested that there were “numerous instances” of retaliation that were not enumerated in his will-say statement.
14Mr. Farley Wellington also gave evidence in this matter. His will-say statement said:
I have worked in the Ontario Public Service since in and around 2005.
Since December, 2008 I have worked as a OCC Analyst in the Data Centre Operations Branch in the Guelph Office.
Mr. Gordon Budd has been Manager of that office and my manager since the time I began working at the DCO.
In December, 2012 Mr. Budd posted a note on the men’s washroom door threatening to have staff’s locks cut off of the staff lockers if staff did not provide information indicating whose lock was on each locker, by a given date. This constitutes bullying and harassment and poisoned my workplace.
In and around March, 2014, Mr. Budd sent an email to all staff regarding scheduling changes.
I sent an email to Mr. Budd expressing my disagreement with the scheduling changes and stating that I wished to have the original schedule in place, “before management molested it”.
Shortly after sending this email, I was instructed to attend Mr. Budd’s office with my shift manager.
I was not given the opportunity to have any form of representation or support during this meeting.
Shortly after I arrived at Mr. Budd’s office, Mr. Budd threw two sheets of printed paper at me, almost hitting me in the face.
Mr. Budd stated “What was that?” in an angry and aggressive tone.
I felt harassed and intimidated by Mr. Budd’s conduct.
Mr. Budd went on to state in an angry and aggressive tone that he was unhappy with my email.
I felt threatened and intimidated by his conduct. It was also humiliating.
For quite some time, Mr. Budd has been taking a group of his favorite employees for breakfast or lunch every Friday, but does not include all employees in this social workplace activity. I am one of the excluded employees.
This causes me to feel socially excluded and out of favour with my manager, and to an extent the coworkers he does favour.
On or around February 14, 2014, a Stage 2 meeting was scheduled to take place in respect of a group grievances filed by seven DCO employees, including myself.
Management’s initial communication advised that the meeting would be held at OPSEU’s offices in Guelph. Local President Jacqueline Smith attended this location as instructed and waited there for quite some time. This meeting never began.
In fact, management had changed the meeting to a different location and advised us, the grievors, but not Ms. Smith. We were therefore forced to attend the meeting without union representation. I believe this was done intentionally to intimidate us and deprive us of union protection during the grievance meeting.
On Wednesday May 21, 2014, OCC staff were advised that if they required external training they needed to have their requests in by Friday May 23 to the Senior Manager. Most staff, including myself had not had a Performance Appraisal in a long time. I was therefore unclear what training plans I should be considering. Even with such appraisals in place, 2 – 3 days’ notice is wholly inadequate and this unrealistic deadline constitutes harassment.
I raised this issue with my shift manager, Richard Fong, but staff were subsequently advised that there was no budget for such training and it was put on hold.
On June 23, 2014, management advised staff that employees could no longer exit and re-enter the OCC without first flashing their security cards to exit the OCC room in the GDC.
This was implemented against the Production and OCC Analysts while staff in the common work areas enter and leave the washroom and Kitchen Areas with zero monitoring. Senior management continues its attack against Shift Staff, generating a hostile/oppressive environment to work.
15Mr. Wellington was asked about the posted note regarding locks and lockers. He did not personally see Mr. Budd post the note but stated that “when we all discussed the matter the conclusion was that Mr. Budd posted it. Personally I thought it was a joke but I gathered from my team that it was Mr. Budd.” When told that the Employer’s evidence would be that another member of staff actually posted the note Mr. Wellington remained unchanged in his view because he had concluded that it must have been Mr. Budd. The grievor did not discuss the note with Mr. Budd or any other member of management at the time because “I did not take the note seriously”. He thought the communication should have been via email and not a posted note to all staff. In any event, Mr. Wellington did not have to respond to the posting because he does not utilize the staff lockers.
16The grievor was asked about the meeting he had with Mr. Budd and Mr. Fong following the email he sent about the revised work schedule. He said that he did not receive any discipline at that meeting. Mr. Budd threw sheets of paper at him “kind of like you would throw a Frisbee.” The paper landed in front of him – on the edge of Mr. Budd’s desk. He conceded that because the paper was very light it landed “not that close” and “on the desk”. Mr. Wellington said that Mr. Budd’s tone was not one of frustration but aggression. He testified that Mr. Budd “raised his voice”. When asked if he yelled, Mr. Wellington said he “would consider it yelling”. He told Mr. Budd that he was not happy with the schedule change and Mr. Budd began to tell him about a document he got from “higher ups”. Mr. Wellington stated that he could not recall the rest of the conversation because he was not paying attention. He wanted to leave the meeting but could not because his path to the door was blocked by Mr. Fong’s chair. Mr. Wellington conceded that he apologized to Mr. Budd regarding the email but testified that he did so in order “to get out of the office”. He said he did not understand the concern raised by Mr. Budd. That was the end of the matter and it was not raised again by either Mr. Budd or the grievor.
17Mr. Wellington works one Friday per month and has never seen Mr. Budd eat his lunch in the lunchroom. The grievor takes his lunch break at approximately two in the afternoon and only occasionally sees Mr. Budd enter the lunch room, obtain a drink and leave.
18Mr. Wellington testified that Mr. Budd takes Mr. Fong and an SO4 employee who is a liaison “between us and management” and who works nine to five out to breakfast. None of the other OC analysts go to breakfast with Mr. Budd.
19The grievor conceded in his cross examination that he did not attend the stage 2 grievance meeting contemplated in his will-say statement and that as far as he knew the union did have representation.
20Regarding the external training requests, Mr. Wellington recalled receiving an email authored by Mr. Budd that was forwarded to his attention. He made a training request regarding server training. He was later informed that the budget for training was not approved. He thought it was Mr. Budd who made decisions regarding the training budget.
21Mr. Wellington became aware of the change in security by way of a sign that was posted on the door which said that everyone has to swipe their card when entering and leaving the OCC office. He knew of the practice of tailgating and said that if one entered the area in such a fashion they were foreclosed from leaving or entering other areas. He testified that the point of the new security is to ensure that certain people who do not belong in the secured area are do not enter. Outsiders, such as vendors have to be escorted to the OCC and raised floor by staff members. Mr. Wellington was of the view that the need to swipe out of the area was “a bit of overkill” but he complied.
22A third grievor was scheduled to appear on the second hearing day but failed to appear. The Union requested an adjournment which was granted to ascertain the reasons for the absence. The Union was instructed to provide the Board with the reasons for his non-attendance.
23The Union later notified the Board and the Employer that it would be calling no further evidence.
24Subsequently the Employer contacted the Union and the Board and asked for an earlier hearing date in order to make a non-suit application.
EMPLOYER SUBMISSIONS REGARDING ITS MOTION FOR NON-SUIT
25Ms. Munn, on behalf of the Employer, began by stating that all of the twenty-seven grievances before this Board should be denied because no prima facie case has been presented. The principles that apply in a non-suit motion were clearly and most precisely set out by Vice Chair Dissanayake in Re Crown in Right of Ontario (Ministry of Natural Resources and Forestry) and OPSEU (Martin) GSB#2011-3793. In reviewing the jurisprudence the Vice Chair stated the following, beginning at paragraph 8:
In the context of labour arbitration, the Board in Re Southern Alberta Institute of Technology (1994), 43 L.A.C. 26 (Mcfetridge) observed as follows at p. 269:
The question is one of law, not fact, and the judge or board of arbitration is primarily concerned with the quantity of the evidence as a matter of law rather than its quality, believability or persuasive weight which are all questions of fact. Assuming that the evidence meets a certain minimum threshold of credibility, a non-suit motion cannot succeed if the party carrying the burden of proof has presented some evidence which supports each of the essential elements of its claim. This evidence will be sufficient until contradicted or overcome by other evidence. It may be that the evidence is weak and carries little persuasive weight. A non-suit however, cannot succeed where there is some credible evidence which supports each of the essential elements of the claim.
The Divisional Court has made it clear that the standard to be applied is lower than the standard of balance of probabilities. Thus in Ontario v. OPSEU (Cahoon), (1990), 37 O.A.C. 218 in quashing a decision of the Grievance Settlement Board which had allowed a motion for non-suit, the Court wrote:
The board began by setting out its understanding of non-suit. While it held that a prima facie case had not been made out, its reasons make it clear that it believed that a prima facie case had to be established on a balance of probabilities. This is, of course, incorrect…… the standard of proof on a non-suit is that of a prima facie case, not a case on the balance of probabilities. If a prima facie case has been shown a non-suit must not be granted. It is erroneous to determine a non-suit on the basis of the higher onus of the balance of probabilities. A prima facie case is no more than a case for the defendant to answer.
A motion for non-suit in modern practice is made by the defendant, contending that the trier of fact should not proceed to evaluate the evidence in the normal way, but should dismiss the action. The defendant must satisfy the trial judge that the evidence is such that no jury acting judicially could find in favour of the plaintiff. The decision of the judge in both jury and non-jury actions is a question of law. Sopinka, The Trial of an Action, p. 124 (Butterworths).
The “normal way” in a civil action would be on the balance of probabilities. where a judge is sitting with a jury, the issue is whether there is some evidence to support the claim. If there is, the case goes to the jury. If there is none, it does not.
It is now clearly established that the standard applied in assessing the evidence in determining a non-suit motion is considerably lower than the usual standard in civil matters, i.e. “on a balance of probabilities”. See, Cahoon Ont. Div. Ct. (supra). While some authorities have stated that the plaintiff must have adduced “sufficient evidence”, others such as Cahoon (supra) have used the phrase “some evidence”. This Board has reasoned that there is no substantial difference between these two terms. Thus in Re Gareh, 1665/98 (Brown), the Board reviewed the decision of the Divisional Court in Cahoon (supra) and wrote at p.6 as follows:
The Divisional Court’s comment that a motion for non-suit should be dismissed if there is “some evidence to support the claim” must be interpreted in the context of the immediately preceding passage from Sopinka’s The Trial of an Action saying the issue to be determined by the judge is whether “no jury acting judicially could find in favour of the plaintiff”. Based upon the Divisional Court’s apparent approval of this passage, I understand the Court’s reference to “some evidence to support the claim: to mean evidence which could lead a jury (or some other trier of fact) to rule in favour of the party opposing the motion, if the trier of fact found that party’s witnesses to be credible and made all reasonable inferences in its favour. This standard is no different in substance than the test of “sufficient” evidence utilized by the Court of Appeal in the Hall and Gallant case.
Vice Chair Brown went on to state:
In the case at hand, I must decide the motion for non-suit as well as serve as the trier of fact. At this stage, my task is to determine whether evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence.
It is not logically possible to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether I could rule that the union has proven its case on the balance of probabilities, if its witnesses are believed and it is grant the benefit of all reasonable inferences. The decision-making process on a motion for non-suit cannot ignore the standard of proof, but this process entails an application of that standard which differs markedly from the way it would be applied after both parties had closed their case. At that point, in determining whether the union had proven its case on the balance of probabilities I would scrutinize the credibility of witnesses, and I would not draw inferences so as to resolve doubts in favour of the union, because the benefit of the doubt should not be granted to the party bearing the onus of proof.
In a decision released on March 05, 2015, the Board in Re Bharti, 2013-2789 (Anderson) refined and summarized the principles applied by it in determining non-suit motions as follows at para 8:
8There is no dispute between the parties as to the principles applicable to a non-suit motion. Reference was made to: Ontario Public Service Employees Union (Vingar) v Ontario (Health and Long-Term Care) 2014 CanLII 30275 (ON GSB), Ontario Public Service Employees Union (Allin) v. Ontario (Ministry of Revenue), 2010 CanLII 38781 (ON GSB), and Ontario Public Service Employees Union (Thompson) v. Ontario (Liquor Control Board of Ontario), 2012 CanLII 67531 (ON GSB). The applicable principles may be summarized as follows:
(i) the board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.
(ii) In a non-suit motion, the issue is whether the party responding to the motion has made out a prima facie case.
(iii) In determining whether a prima facie case has been made out, the test is whether the evidence presented by the party responding to the motion is sufficient to allow the Board to rule that it has proven its case on a balance of probabilities, if the board assumed its witnesses to be credible and drew in its favour all references reasonably supported by direct evidence. No weight, however, should be given to evidence of a witness on a point about which he or she has given contradictory accounts. (See Ontario Public Service Employees Union (Gareh) v. Ontario (Ministry of the Attorney General), 2002 CanLII 45791 (ON GSB) at paragraphs 8 – 10.
(iv) in assessing the evidence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.
(v) where a non-suit motion is granted, a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written will be issued.
At paragraphs 9 – 10 the Board observed:
The Union states that a non-suit motion is not the time to test the quality, reliability or credibility of the evidence. Accordingly, the Union asserts, I am required to assume that everything the grievor said is true for the purposes of this motion. With respect, the second proposition does not follow from the first. The mere fact that a grievor testified as to something does not make it admissible evidence which must be assumed to be true. Of particular application to this case, as will become apparent below, I am not required to accept as evidence hearsay statements or opinions offered by the grievor.
Further, I agree with the Employer that the mere fact that the grievor asserts something is true, for example that the Sabbath is on Tuesday, does not make it so for the purposes of a non-suit motion. In Nash v. Ontario (1995) 1995 CanLII 2034 (ON CA) 27 O.R. (3d) 1, the Ontario Court of Appeal held that for the purposes of determining whether or not a plaintiff’s pleadings made out a prima facie case, alleged facts that were patently ridiculous or incapable or proof need not be accepted as true. Surely no less a standard should be applied on a non-suit motion, where the responding party has not simply plead a case but lead all evidence it asserts is necessary in order to prove its case.
A distinction must also be made between facts and conclusions of fact. A false conclusion is not rendered true, for the purposes of a non-suit motion simply because the grievor adopted that conclusion as his evidence. Similarly, a conclusion stated in the nature of a bald allegation in the absence of detailed evidence in support has no probative value: see Guarantee Co. of North America v. Gordon Capital Corporation (1999), 1999 CanLII 664 (SCC), 178 D.L.R. (4th) a (S.C.C.) at paragraph 31 discussing the sufficiency of evidence submitted on a motion for summary judgement.
26After reviewing the principles, the Employer reviewed the evidence proffered by the grievors in this matter. It was contended that the evidence heard to date by this Board was insufficient to lead to a finding for the grievors. In taking the Board through each of the alleged violations, the Employer suggested that the much of evidence given was vague, innocuous, non-specific without reference to dates, opinion, conclusory, confused, internally inconsistent and contradictory as between the will-say statements and cross-examination.
27The Employer submitted that the facts before this Board are insufficient to show that Mr. Budd’s conduct was harassing and/or that there has been a failure to provide a safe workplace. Accordingly, there has been no violation of Articles 2, 3 or 9 of the Collective Agreement. At most, this is an instance where consideration should be through the lens of “bad boss” cases.
28According to the Employer in determining whether this motion should succeed the Board must take into account what constitutes harassment. In Re Province of British Columbia (1995) 1995 CanLII 18346 (BC LA), 49 L.A.C. (4th) 193 Arbitrator Liang said:
This is a serious word, to be used seriously and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words where the harm, by any objective standard, is fleeting. Nor should it be used where there is no intent to be harmful in any way, unless there had been a heedless disregard for the rights of another person and it can be fairly said, “You should have known better.”
As I said earlier in this award, harassment is a serious subject and allegations of such an offence must be dealt with in a serious way, as was the case here. The reverse is also true. Not every employment bruise should be treated under this process. It would be unfortunate if the harassment process was used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred. …..
29The Employer also asked the Board to review Re Canada Safeway Ltd. & UFCW, Local 401 [2012] A.G.A.A. No. 69 (Ponak), paragraph 122 which said:
An allegation of harassment is a serious matter. It cannot be taken lightly, and the onus of proof lies with the Union. A finding of harassment can only be made if there is objective evidence to support that claim. The fact that (the grievor) honestly felt that she was being harassed, and the fact that she suffered greatly, is not enough to make this claim succeed. ….. The grievance is against the Employer. This grievance can only succeed if the objective evidence supports a finding that there has been abusive conduct as a result of the improper use of a power or departure from reasonable norm. ….
30In the case at hand, according to the Employer, there were legitimate workplace issues that had to be addressed such as the need to know whose lock was on each locker and complete knowledge as to who is on the floor of the secure computer area. Managing those concerns does not constitute harassment. At most, the Union’s case shows that the workplace was less than ideal. There was no evidence that anyone raised concerns with any member of management at the time. The Employer cannot be faulted for failing to take steps if issues were not brought forward.
31The Employer noted that the relevant provisions of Ontario Occupational Health and Safety Act are virtually identical to Article 9 of the Collective Agreement between these parties. Given that there has been no violation of Article 9 there has also been no violation of any employment related statutes.
32The Employer also relied upon Re Fanshawe College of Applied Arts and Training & OPSEU (2016) 2016 CanLII 23226 (ON LA) (Bendel); Re Crown in Right of Ontario & OPSEU (Marsh et al) GSB#2011-0951 (Stephens); Re Crown in Right of Ontario & OPSEU (Sager, Shelley et al) GSB#2000-0377 (Mikus); Re Crown in Right of Ontario & OPSEU (Lefkowitz) GSB$2010-2380 (Briggs); Re Crown in Right of Ontario & OPSEU (Patterson) GSB#2015-1660 (Briggs); and Kinark Child & Family Services Syl Apps Youth Centre & OPSEU, Local 213 (2012) 2012 CanLII 97669 (ON LA) (Marcotte).
UNION SUBMISSIONS
33Mr. Bryden, for the Union, did not take issue with the Employer’s view that if the motion is dismissed the Employer will then have to determine whether to call evidence.
34The Union urged that much care should be taken by this Board to apply the appropriate standard in the consideration of this motion. This is not an instance where the Board should consider the facts on a balance of probabilities. That test was rejected by Divisional Court. Rather, this Board should decide the motion on the lower threshold of whether the Union made out a prima facie case.
35The Union contended that while the incidents attested to by the grievors may seem innocuous on their own, together they show a pattern of harassment and all reveal the misconduct of Mr. Budd. The benefit of any doubt is to be given to the grievors.
36The Union reviewed the jurisprudence put forward by the Employer. It was asserted that there have been instances where the Board has strayed from the Divisional Court’s view that the standard of review is that of a prima facie case and not on a balance of probabilities. The same mistake should not be made in the instant matter.
37Further, according to the Union, although it has been said that hearsay evidence does not have to be considered in a motion for non-suit, this Board has the discretion to accept such evidence. There is no authority indicating otherwise.
38Mr. Bryden submitted that Section 25.2(h) of the Occupational Health and Safety Act has been breached. An employer is to “take every precaution reasonable in the circumstances for the protection of a worker.” Mr. Budd failed to do so according to the evidence heard to date by this Board.
39A single incident can be sufficient for a finding of harassment and in the Union’s view, the meeting between Mr. Wellington and Mr. Budd constituted harassment. As stated in Re Fanshawe College (supra), the conduct of Mr. Budd in that particular instance was “a departure from reasonable conduct”. Mr. Wellington testified that Mr. Budd was red-faced, aggressive and yelled at him. Mr. Budd threw papers at the grievor and he was blocked from leaving because Mr. Fong was between him and the door. Mr. Wellington was not allowed to have a representative at that meeting and he apologized for his behavior in an effort to leave. This behavior was highly unprofessional, inappropriate, egregious and can only be seen as harassing. Nothing should be drawn from the fact that the grievor did not complain about the meeting to another manager. It is simply apparent that he wanted to put the entire incident behind him. Further, this incident occurred in March of 2014 and the grievance was filed June 19th, 2014 – that is to say, shortly thereafter.
40The other incidents were also reviewed by Mr. Bryden. It was the Union’s contention that each revealed an instance of harassing behavior on the part of Mr. Budd and constituted a course of conduct.
41The Union relied upon Re Toronto Transit Commission and A.T.U (2004) 2004 CanLII 55086 (ON LA), 132 L.A.C. (4th) 225 (Shime); Re UFCW, Local 1518 v. 55369 BC Ltd. 2007 CarswellBC 3880, [2007] B.C.C.A.A. No. 130 (Larson); Re Ontario (Ontario Science Centre) and OPSEU (Heppleston) GSB#2005-1363 (Herlich); Re Ontario v OPSEU, 1990 CarswellOnt 711, [1990] O.J. No. 635, 20 A.C.W.S. (3d) 1096, 37 O.A.C. 218 (Divisional Court); and Re University of Western Ontario & CUPE, Local 2361, (1990) 1990 CanLII 12893 (ON LA), 15 L.A.C. (4th) 189 (Dissanayake).
EMPLOYER REPLY SUBMISSIONS
42Ms. Munn took issue with the Union’s view that this Board has mischaracterized the standard to be applied when determining motions for non-suit. The standard was clear and precisely articulated in Re Martin (supra) and according the Board’s practice, should be applied in this instance.
43The Employer urged that it is not asking this Board to draw inferences or assess credibility. However, no weight should be given to contradictory accounts and conclusions proffered without objective evidence.
44The Employer agreed with the Union, for the purposes of this motion, that the conduct of Mr. Budd at the meeting held with Mr. Wellington was unprofessional. Mr. Wellington did testify that Mr. Budd yelled but he demonstrated the pitch of yelling and it would be more accurate to refer to it as a raised voice. In any event, the conduct of that meeting might have been unprofessional but it was not harassing. Further, Mr. Wellington had no Union representative because it was not a discipline meeting and therefore he was not entitled to a representative. A finding that a failure to allow a representative to any meeting held between a manager and an employee would be wrong.
45In the Employer’s view, none of the incidents – in and of themselves – were harassment and there was no evidence of a course of harassing conduct. Accordingly, the motion should be upheld.
DECISION
46In the face of the non-suit motion brought about by the Employer in this matter, the question for this Board, as cited by Vice Chair Dissanayake in Re Martin (supra) is to determine whether the Union has presented “some credible evidence which supports each of the essential elements of the claim”; or, in the words of Vice Chair Brown in Re Gareh (supra), “my task is to determine whether evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence.”
47After having considered all of the evidence, submissions and jurisprudence I am led to the inevitable conclusion that the Employer’s motion must be upheld.
48The Union urged that care should be taken by this Board not to determine the motion applying the standard of a balance of probabilities as has been done in the past. Rather, it was submitted that the test must be one of whether a prima facie case has been made out.
49Without determining whether some of the jurisprudence presented to this Board wrongly imposed the standard of a balance of probabilities, I am of the view that no prima facie case has been made out by the Union. There was no credible evidence supporting the grievors’ claim of a violation of Articles 2, 3, 9 or any employment related statutes. Simply put, there has been no case made out that the Employer must answer.
50The two grievors who proffered evidence to this Board complained of a total of six incidents of harassing behavior at the hands of Mr. Budd, their manager. A review of the evidence regarding these incidents is necessary to understand the Board’s finding in this matter.
51The first complaint was regarding the posting of a notice regarding the Employer’s need to identify ownership of locks in the staff locker room. Both grievors stated in their will-say statement that the “threatening” notice was posted by Mr. Budd. However, it became apparent in cross-examination that neither grievor actually saw Mr. Budd post the notice. Further, they failed to explain why the notice “poisoned” their workplace. Indeed, Mr. Sharma conceded that the note asked to “please provide information” regarding locks. While it was contended that this action was threatening and intimidating neither felt the need to speak with anyone – other than fellow analysts – about the matter. Further, Mr. Wellington stated in his cross examination that when he saw the notice he thought it “was a joke” and he did not take it seriously but after discussing the matter with his co-workers they all agreed that it must have been posted by Mr. Budd.
52I cannot find – based on the evidence - any aspect of this incident to be harassing.
53The second complaint was regarding Mr. Budd showing favorites by taking certain employees to breakfast or lunch every Friday thereby leaving the grievors feeling “socially excluded”. Cross-examination of the grievors reveal that they work one Friday a month and their break and meal times differ from that those who work an eight hour– nine to five – shift such as Mr. Budd and the Managers and Systems Operator 4. Mr. Wellington testified that he spends little time in the lunch room. He usually just makes a drink and leaves. However, he has seen Mr. Budd take other Managers and a Systems Operator 4 to breakfast from time to time. Mr. Sharma testified in cross-examination that he has seen Mr. Budd in the lunch room “with the same gang” but conceded that he frequently does not stay in the lunch room. He frequently warms up his food and eats at his desk.
54The Employer suggested that at most the evidence suggests that Mr. Budd has an occasional “breakfast of convenience”. I understand that view. Further, I agree with the Employer that none of the evidence regarding this complaint constitutes harassment or a violation of any provision of the Collective Agreement.
55The grievors both contended in their will-say statements that the Employer purposely – and in an effort to intimidate - misled them regarding a grievance meeting. It was asserted by both that they were “forced to attend the meeting without the benefit of union representation”. In cross-examination Mr. Wellington conceded that notwithstanding his assertions set out in his will-say, he was not invited to the meeting nor did he attend. He only knew of the meeting from what he had been told by others. Mr. Sharma testified that the communication from the Employer said that the meeting would be held at 1 Stone Road where the Union office is located. He went on to say that he did not receive the email directly as it was sent to his Union representative who forwarded it to him. He was asked if he looked at the location before the meeting and he replied in the negative. He was later asked if he had seen the email at the time and he conceded that he had. He ultimately conceded that there is a meeting room beside security in both of the buildings located at 1 Stone Road and the Guelph Data Centre. Finally, Mr. Sharma agreed that notwithstanding the assertion made in his will-say, he was not forced to attend a meeting without his Union representative. The meeting eventually took place and the grievor had the appropriate Union representation.
56It became apparent during the course of Mr. Sharma’s cross examination that incorrect assumptions were made as to the location of the meeting. In my view there can be no doubt that there simply was a misunderstanding. I heard no evidence that would lead me to find that there was any miscommunication intended to intimidate or harass. Certainly there was no action taken to force the grievors to attend a grievance meeting without Union representation.
57Both grievors suggested in their evidence that the June 2014 notice to the analysts that they could no longer exit or enter the OCC without using their security cards. Both said this “was implemented against Production and OCC Analysts” while other staff had zero monitoring. In their view, according to their will-say statements this revealed that senior management “continues its attack against Shift staff, generating a hostile/oppressive environment at work”. In cross-examination Mr. Wellington said that the security needs relating to the raised floor area would require Analysts to swipe their cards to ensure that only authorized personnel enter. He agreed that “others” do not have to follow this procedure because they do not have clearance to be in the raised floor area. He agreed it was necessary to have security measures given the nature of the work. This was another instance where there was a noticeable difference between the will-say statements and the evidence that was given in cross-examination. It was apparent that the security measures put into place were appropriate for this workplace and I heard no evidence that would lead me to find that the grievors were being oppressed. Again, while both grievors alleged they were being targeted by senior management thereby generating a hostile work environment, I heard no evidence to substantiate that view.
58Mr. Sharma and Mr. Wellington both asserted that being given two or three days’ notice to set out their requests regarding external training was “wholly inappropriate” and “constitutes harassment”. Notwithstanding this short notice both managed to put in their training requests. The external training was cancelled due to budgetary constraints and both grievors thought that this decision to cancel training was made by Mr. Budd. However, neither had direct knowledge. Indeed, Mr. Sharma in his cross-examination conceded that the decision may have been made further up the management chain. While I appreciate that it may have been easier for the grievors to have had more time to contemplate their external training requests, I cannot find that situation to have been “wholly inappropriate” or harassment. There certainly is no violation of Article 2, 3 or 9 or the Collective Agreement.
59Before moving on to the last incident raised by Mr. Wellington it is necessary to comment that none of the incidents addressed so far in this decision meet the test of a prima facie case of harassment. It is appropriate to make this finding at this point because the Union asked me to consider the final complaint of Mr. Wellington taking into account that there has been a course of harassing conduct towards the grievors at the hands of Mr. Budd. In my view, there has been no course of harassing conduct. It may be that there were instances of miscommunication or actions that fall somewhat short of the best management practice but that is not harassment.
60Finally, Mr. Wellington testified about a meeting held in Mr. Budd’s office in March of 2014. In his will-say the grievor noted that prior to this meeting he sent an email to Mr. Budd complaining about a recent scheduling change making clear that he wanted to return to the original schedule “before management molested it”. Mr. Wellington complained that he was “not given the opportunity” to have any representation at this meeting. There was no evidence that the grievor asked for representation. Further, he was clear in his cross-examination that he was not disciplined during the course of this meeting and therefore he was not contractually entitled to Union representation. Although his will-say stated that Mr. Budd “threw two sheets of paper at me, almost hitting me in the face”, his evidence in cross-examination was that the papers were thrown towards him and landed on the desk in front of him. He conceded that because the papers were light, they did not really come close to his face before landing. Although he also testified that Mr. Budd yelled, he demonstrated an approximation of volume. I am of the view that the grievor’s demonstration revealed that there was a raised voice – not yelling. In any event, Mr. Wellington said that he apologized so that he could get out of the room and he did not recall what else was said because he was not paying attention.
61The Union suggested that the behavior of Mr. Budd during this meeting was “egregious harassment”. I disagree. According to the evidence proffered there can be no doubt that Mr. Budd’s actions and tone were neither professional nor appropriate but they fall short of egregious or harassment. The Union noted that the grievor said he felt threatened by this behavior and yet according to the evidence he spoke to no other manager regarding the behavior. Indeed, he said that he stopped paying attention to what was being said to him. It is perhaps for this reason that he testified that he did not understand the point that Mr. Budd was attempting to make during the course of the meeting.
62It should be noted that I have considered the evidence regarding this meeting taking into account that Mr. Wellington also testified in his will-say statement that he was “threatened” by the note posted in the locker room and “harassed” as the result of receiving only two days to make his external training needs known. Further, he felt Mr. Budd was “generating a hostile/oppressive environment” when the new policy regarding security precautions was instituted.
63There is no doubt that there are instances where one interaction can constitute harassment. However, in my view, treatment of Mr. Wellington during this meeting was far from a model of good management practice but it was not harassment.
64It is worth noting that there were a number of instances when there was contradictory evidence given by the grievors as between their will-say statements and their cross examination. One such example was when Mr. Wellington testified in his cross-examination that he did not attend the grievance meeting or was even invited to that meeting notwithstanding his will-say statement which declared he was forced to attend without union representation. In Re Gareh (supra), Vice Chair Brown noted that in determining a motion for non-suit no weight should be given to evidence of a witness on a point about which he or she has given contradictory accounts.
65As noted by Arbitrator Liang in Government of BC (supra), harassment is a serious subject which must be considered and dealt with in a serious manner. But she also noted – and it is particularly relevant in this case at hand – that “the reverse is also true. Not every employment bruise should be treated under this process.” Less than optimum workplace demeanor or “general unhappiness with life in the workplace” are not violations of Article 2, 3 or 9 of the Collective Agreement between these parties.
66In conclusion, the Employer’s motion for non-suit is upheld because there has been no prima facie case made out by the Union. There has been no evidence provided that supports the Union’s claims requiring an answer or explanation from the Employer.
Dated at Toronto, Ontario this 22nd day of December, 2017.
Appendix
GSB File Numbers
Union File Numbers
2014-4402 2014-4403 2014-4405 2014-4406 2014-4407 2014-4408 2014-4409 2014-4410 2014-4411 2014-4412 2014-4413 2014-4414 2014-4415 2014-4416 2014-4417 2014-4418 2014-4419 2014-4420 2014-4421 2014-4422 2014-4423 2014-4424 2014-4425 2014-4426 2014-4427 2014-4428 2014-4429 2014-4430 2014-4431 2014-4432 2014-4433 2014-4434 2014-4435 2014-4437 2014-4438 2014-4439 2014-4440 2014-4442 2014-4443 2014-4444 2014-4445 2014-4975 2014-4976 2014-4977
2014-0232-0060 2014-0232-0061 2014-0232-0063 2014-0232-0064 2014-0232-0065 2014-0232-0066 2014-0232-0067 2014-0232-0068 2014-0232-0069 2014-0232-0070 2014-0232-0071 2014-0232-0072 2014-0232-0073 2014-0232-0074 2014-0232-0075 2014-0232-0076 2014-0232-0077 2014-0232-0078 2014-0232-0079 2014-0232-0080 2014-0232-0081 2014-0232-0082 2014-0232-0083 2014-0232-0084 2014-0232-0085 2014-0232-0086 2014-0232-0087 2014-0232-0088 2014-0232-0089 2014-0232-0090 2014-0232-0091 2014-0232-0092 2014-0232-0093 2014-0468-0036 2014-0468-0037 2014-0468-0038 2014-0468-0039 2014-0468-0041 2014-0468-0042 2014-0468-0043 2014-0468-0044 2014-0232-0094 2015-0232-0005 2015-0232-0006