GSB# 2017-0654

UNION# 2017-0546-0020

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Solomon)

Union

• and -

The Crown in Right of Ontario (The Ministry of Children, Community and Social Services)

Employer

BEFORE

Reva Devins

Arbitrator

FOR THE UNION FOR THE EMPLOYER

Andrew Mindszenthy Ontario Public Service Employees Union Grievance Officer Regina Wong Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 30, 2018

Decision

1The Grievor was employed as a Program Support Clerk with the Ministry of Community and Social Services on a fixed term contract that ended on March 10, 2017. She applied to the Program Support Clerk Talent Pool Competition during her contract and was invited to participate in the first stage of the selection process. She completed a pre-screening written test on April 20, 2017 that had an Employer set threshold of 75%; the Grievor’s score was 68% and she was therefore not invited for an interview in the next phase of the selection process.

2On May 26th, 2017, the Grievor filed the following grievance:

Statement of Grievance

I grieve that competition JOB ID 104526 was improper and conducted in violation of the collective agreement, specifically including but not limited to Article 6.3, in that:

a) The Employer failed to give primary consideration to qualifications and ability to perform the required duties; and

b) The Employer placed undue reliance on a test score, eliminating me from the competition solely based on the test score, and without appropriate consideration of comprehensive information relevant to my qualifications and ability to perform the job, including but not limited to, actual employment experience in a Program Support Clerk position and past employment experience relevant to the position; and

c) I have 6 months seniority with no discipline or negative performance review

Settlement Desired

To be made whole. That I be compensated for the wages that I have lost and be given a position as a Program Support Clerk. I am also requesting that my continuous service date and company seniority date be put back to March 20th, 2017 when my employment ended with the Ministry of Community and Social Services and any other compensation deemed to be fair by an arbitrator of the Grievance Settlement Board.

3The Union subsequently provided particulars that include allegations of harassment during the term of the Grievor’s contract and allegations that the conduct of the Grievor’s manager during the written test had a negative impact on the Grievor’s score. The Employer indicated that it intends to raise a number of preliminary objections, however, this decision is limited to the first objection, that the particulars are an improper expansion of the grievance insofar as they relate to allegations of harassment or bad faith. The parties also agreed that the matter proceed under Article 22.16 and that any decisions are without prejudice or precedent.

4The Employer submitted that all of the particulars that relate to Article 2, Article 3, the Occupational Health and Safety Act (“OHSA”), harassment and the conduct of the Grievor’s former manager are not inherent in the grievance, even on a liberal reading, and are therefore an improper expansion of the grievance. Article 6.3 of the collective agreement is the only article referred to in the grievance and no allegations of harassment or bad faith are mentioned. Nor were these allegations raised at Stage 2 or at any other time during the formal resolution process. In the Employer’s submissions, there was nothing stated during the grievance process that would have made it aware that the Grievor was pursuing allegations of harassment. The Employer therefore requests that all of the particulars that relate to the allegations of harassment or bad faith be struck out.

5The Union opposed the motion and submitted that the allegations of harassment were inherent in the grievance itself. The Grievor had independently raised allegations of workplace harassment with the Employer when she left in March. Her concerns were investigated by the Employer and the Grievor believed that this was a confidential process. She also did not want to appear to be escalating her concerns by raising them again in her job competition grievance. In these circumstances, the Union maintains that the Employer should have realised that the harassment allegations were part of or inherent in the competition grievance. Moreover, it submitted that there would be no prejudice to the Employer in proceeding with these allegations as they have already been investigated.

Analysis

6I have considered the parties submissions and have determined that the particulars of harassment and bad faith are beyond the scope of the grievance. Therefore, permitting the Union to proceed with these allegations would be an improper expansion of the grievance.

7The parties agreed on the appropriate legal test for the motion, which is well settled: OPSEU (Botash) v. Ministry of the Attorney General (2018), GSB No. 2014-1088 (Abramsky); OPSEU (Rafol) v. Ministry of Children and Youth Services (2009), GSB No. 2009-1115 (Dissanayake); OPSEU (Brown-Bryce) v. Ministry of Community Safety and Correctional Services (2016), GSB No. 2014-1158 (Dissanayake).

8The principles set out by the Ontario Court of Appeal in Re Blouin Drywall Contractors Ltd. and Carpenters Local 2486, (1975), 1975 CanLII 707 (ON CA), 57 DLR (3d) 199 still provides the starting point for analysis:

No doubt it is the practice that grievances be submitted in writing and that the dispute be clearly stated, but these cases should not be won or lost on the technicality of form, rather on the merits and as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch.

Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect the agreement provisions.

9Arbitrator Dissanayake discussed these principles and further fleshed them out in Greater Sudbury Hydro Plus Inc., (2003) 121 L.A.C. (4th) 193 (Dissanayake) at paragraphs 12-14, as follows

I find two countervailing principles in the foregoing statement by the Court of Appeal. The first is that, where on a liberal reading of the grievance an issue, although not articulated well, is inherent within it, an arbitrator ought to take jurisdiction over that issue, despite any flaws in form or articulation. However, there is also a countervailing principle to the effect that an arbitrator ought not, in the guise of “liberal reading”, permit a party to raise at arbitration an issue which was not in any manner, even inherently, joined in the grievance filed. To do that would defeat the very purpose of the grievance and arbitration procedure.

10In this case, the grievance is completely silent on the allegations at issue. It does not include any reference to the relevant articles of the collective agreement, to OHSA or any of the facts that are now asserted in the particulars. Nothing on the face of the grievance alludes to discrimination, harassment, or any impediment to the Grievor’s ability to complete the written test. In my view, even on a fair and liberal reading of the grievance, the essence of the dispute was restricted to Article 6.3 and the Employer’s reliance on the Grievor’s test score, to the exclusion of other considerations regarding her qualifications and ability to perform the job.

11I appreciate that the Grievor also brought her concerns regarding harassment to the attention of the employer, however, she did not do so in relation to this grievance. Nor did she pursue that claim after her allegations were investigated or raise them during the formal dispute resolution process. The Union submitted that, having complained about harassment in a different context, that element of the Grievor’s concerns was nonetheless part of or inherent in her job competition grievance. I am not persuaded by this submission. The grievance process requires transparency so that both parties are aware of the true nature of the dispute between them. It cannot be a guessing game and the nature of the dispute must be clearly articulated. Although a grievor will not, and should not, be held to a standard of perfection, she must voice her concern as best she can. There is nothing in the grievance before me that signals to the Employer that the grievance encompasses issues of workplace harassment or bad faith and the Employer simply could not have known that these issues were being pursued as part of this grievance.

12For all these reasons, I would grant the Employer’s preliminary motion and strike out the Union’s assertions of bad faith and workplace harassment related to Article 2, 3 and OHSA and the following particulars:

1. Paragraphs 4-27, except for the first portion of the sentence in paragraph 5, which will end at the first comma after “… to answer phones”.

2. Second and third sentences in paragraph 29.

3. Second – fifth sentences in paragraph 30.

4. Paragraph 32.