Ontario Public Service Employees Union (Boudarga) v. The Crown in Right of Ontario (Ministry of Government and Consumer Services), 2019 CanLII 109986

GSB# 2018-1811

UNION# 2018-0533-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Boudarga)

Union

• and -

The Crown in Right of Ontario (Ministry of Government and Consumer Services)

Employer

BEFORE

Brian McLean

Arbitrator

FOR THE UNION

Erin Thorson Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Henry Huang Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 26, 2019

DECISION

1This is a grievance in which the Grievor alleges, among other things, that the employer discriminated against her. The grievance, as initially filed, was somewhat bare bones, as it lacked factual detail, although it did, as shall be seen, list all of the collective agreement Articles which were alleged to have been violated by the employer. A lack of factual detail in grievances appears fairly typical with these parties which is one of the reasons why they hold what is called a “formal resolution stage meeting” (FRSM), where the details of the grievance can be fleshed out so that it might be resolved. In this case the FRSM was held on July 25, 2018, although the grievance was not resolved at that time. Accordingly, the Union referred the grievance to the Grievance Settlement Board. The grievance was unsuccessfully mediated at the GSB and the employer then requested further particulars of the grievance, which were provided by the Union by letter dated August 16, 2019.

2The matter proceeded to hearing where the employer made a preliminary motion seeking to strike a number of the particulars which had been set out in the August 16, 2019 letter. The Union responded to the motion and asked that the particulars of the grievance be litigated in the normal course. This award determines the employer’s motion.

3The starting point to understand the preliminary dispute is the grievance dated June 25, 2018 which states in relevant part:

“I grieve the employer has violated my rights with regard but not restricted to Article 2, 3.2, 9, 46, 44, as well as any other article, policy or legislation applicable”

“Settlement requested: to be made whole by appropriate remedy including but not limited to:

-Respectful workplace WDHP investigation

-Pay adjustment due to unfair practice

-Compensation for discrimination

-Approval (4) four weeks compassionate leave

-May 28- June 1^st 2018 to be entered as STSP [short term sickness plan]

4With respect to the collective agreement provisions referenced in the grievance, Article 2 is the management’s rights clause, Article 9 deals with workplace health and safety, Article 44 sets out the provision of a short term sickness plan and Article 46 covers vacations. Although, the grievance only refers to Article 3.2, Article 3 is reproduced in its entirety below:

ARTICLE 3 – NO DISCRIMINATION / EMPLOYMENT EQUITY

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 (OHRC).

3.2 There shall be no discrimination or harassment practised by reason of an employee’s membership or activity in the Union.

3.3 The Parties are committed to a workplace free from workplace harassment,

including bullying, by other employees, supervisors, managers, any other

person working or providing services to the Employer in the workplace,

clients or the public, in accordance with the law. Workplace harassment is

engaging in a course of vexatious comment or conduct against an employee

in the workplace that is known or ought reasonably to be known to be

unwelcome.

3.4 It is recognized that in accordance with section 14 of the Ontario Human

Rights Code, the Employer’s employment equity program shall not be

considered a contravention of this article. (emphasis added)

5In addition, at the FRSM, the parties agreed that the grievance also concerned Article 25.1 which states in part: “Leave of absence with pay may be granted for special or compassionate purposes to an employee for a period of [6 months].”

6As noted, by letter dated August 16, 2019, the Union provided particulars as requested by the employer. Paragraph 6 of the particulars alleges the Grievor was harassed, discriminated against and subjected to adverse treatment because of her “religion, ancestry and involvement in the Union”. Paragraph 7 alleges similar conduct on the part of certain managers and on the same grounds: “religion, ancestry and involvement in the Union”

7Paragraph 7b contains allegations regarding an “Arabian Nights” party, which was held at an employee’s house in or about June 2015 and which the Grievor helped plan. The Grievor makes allegations about the conduct of a certain manager at the party who is alleged to have said, among other things, certain Arabic phrases which are offensive to women. The Grievor was deeply offended and alleges that she was denied a promotion some time after the party.

8The employer has several arguments about why the particulars ought to be struck in whole or in part but the primary one is that the particulars constitute an expansion of the grievance both as originally formulated and as discussed at the FRSM. It notes that there was a long discussion about the grievance at the FRSM and it is clear (and the Union does not deny) that at that time there were three aspects to it: i) an allegation of discrimination on the basis of union activity, ii) the employer’s failure to grant the Grievor a compassionate leave; and (iii) the way in which it treated the Grievor’s vacation while she was ill. The employer submits that any other allegation is an improper expansion of the grievance.

9The employer also argues that several of the incidents were complained of long after they took place and certainly outside of the time limits for filing a grievance contained in the collective agreement. Some of the incidents, such as the Arabian Night party, allegations were, if true, obviously problematic and yet the Grievor did nothing about them for several years despite having extensive experience as a union steward.

10The Union submits that in the grievance the Grievor complained about discrimination and all that she seeks to do is to add a few more grounds of discrimination which should be permitted as there is no prejudice to the employer. The Union also argues that it was only when the Grievor received a copy of a letter sent by another employee (which criticized management for its treatment of the Grievor) that she became fully aware of the treatment against her by management. In these circumstances, the employer’s timeliness argument cannot succeed, the Union argues, because these issues only recently crystallized and she immediately filed the grievance once they had done so.

Decision

11In the recent Grievance Settlement Board decision of Ontario Public Service Employees Union (Louis) v Ontario (Training, Colleges and Universities), 2019 CanLII 78767 (ON GSB), arbitrator Gee discussed the Board’s practice when it considers a motion that a grievance has been improperly expanded:

9An arbitrator’s jurisdiction is limited to determining the issues that are raised by the grievance. Issues raised in a grievance are referred to as “in-scope.” The Union cannot add additional issues to the grievance that has been filed. Where there is an attempt to add issues to a grievance, it is said that the Union is attempting to “expand the scope of the grievance”; the Union is attempting to add “out of scope” issues to the grievance.

10When an issue as to whether the Union is attempting to expand the scope of the grievance arises, it must be determined whether or not the issue in dispute falls within the scope of the grievance as referred to arbitration. The leading case in this area is Re Blouin Drywall Contractors Ltd. And Carpenters Local 2486, (1975) 1975 CanLII 707 (ON CA). The following summary of the principles to be applied when determining the scope of a grievance is contained in Re Greater Sudbury Hydro Plus Inc. (2003) 121 L.A.C. (4th) 193 (Dissanayake):

14. 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 be to defeat the very purpose of the grievance and arbitration procedure.

11This Board in Re Labanowicz 2012-3224 etc. (Lynk) decision dated September 12, 2014, referred to the Greater Sudbury Hydro Plus decision (supra) and wrote at para. 22:

22. When faced with this issue, an arbitrator’s considerations would include some or all of the following: (i) a review of the language of the grievance, (ii) a review of the language of the collective agreement; (iii) a consideration of any other admissible evidence that would cast light on the parties’ understanding of the issues raised by the grievance, such as the scope of the discussions and exchanges during the grievance process; (iv) a review of the remedy sought; (v) an assessment of the time frame involved; and (vi) the degree of prejudice, if any, suffered by the employer. One useful indicator is to ask whether the other party reasonably should have understood upon reading the grievance and engaging in the grievance process that the new claim in question was organically part of the original grievance: Re Greater Sudbury Hydro Plus, supra.

12In my view, it is clear that the scope of the grievance as originally framed concerned three issues. The first is an allegation that the employer was treating the Grievor improperly in a variety of ways because of her union activity. This can be seen in the reference in the grievance to Article 3.2 of the collective agreement, which is the Article that prohibits discrimination in employment on the basis of union activity. The Grievor obviously made a deliberate decision to grieve union activity discrimination, and not other forms of discrimination, since the other paragraphs of Article 3, which prohibit Human Rights Code based discrimination and bullying and harassment generally, were not mentioned in the grievance. This was confirmed at the FRSM where she alleged that her grievance was about the fact that she was mistreated because she was a union representative. The notes of the FSRM, which the parties agree reflect what happened at the meeting, make no mention of any other kind of discrimination.

13The other grounds for the grievance, concern management’s decision to not grant the Grievor leave and the way it treated her vacation while she was sick. These issues are grieved both as examples of the anti union discrimination inflicted on the Grievor and as unreasonable exercises of management discretion in their own right which violated the collective agreement even in the absence of discriminatory intent.

14As a result of my conclusions about the scope of the grievance as filed and as discussed at the FSRM, it is clear that some of the particulars constitute an expansion of the grievance. I see no reason to permit that expansion. A “liberal reading” of a grievance does not mean changing the grounds for the grievance when deliberate choices were made about what the grievance was about at first instance. The Grievor is experienced at filing grievances and made a deliberate decision to grieve only on the basis of anti union discrimination. That decision was confirmed and reinforced at the FSRM. Moreover, the discrimination complained of was known to the Grievor at the time it happened. There has been no explanation offered for why she did not allege violations of the Human Rights Code earlier. The letter which came to the attention of the Grievor references potential anti union animus, but not, so far as I know, Code based discrimination. I also note that the manager who is the main focus of the grievance is no longer with the Ontario Public Service which inhibits the employer’s ability to respond to the new allegations.

15I come to a similar conclusion with respect to the allegations of what occurred at the party. Those events took place in 2014 and were, if true, clearly offensive. If the Grievor wished to grieve about them she should have done so at the time or at least when this grievance was filed. The allegations are both an expansion of the grievance and untimely.

16As a result of my conclusions, I will not hear evidence and argument about alleged discrimination on the basis of religion and ancestry as described in paragraphs 6 and 7 of the particulars. I will also not hear any evidence about the Arabian Nights party. In coming to this conclusion I do not condone behaviour like the Grievor complains of. However, as noted, the conduct at the party, if true, is obviously problematic and should have been grieved at the time or specifically as part of this grievance.

17It appears that my decision on the expansion argument obviates the need to deal with the claim that the claims are untimely at this time at least. That being said there are a series of claims in paragraph 6 of the particulars that do not set out the dates the events are said to have occurred. While the employer argues that I should strike them as a result of this failure, I do not find it appropriate to do so. Instead I direct the Union to forthwith provide proper particulars with respect to those allegations. Once it has done so, the employer may renew its timeliness argument if appropriate.

18I remain seized of this matter.