GSB# 2017-2476

UNION# 2017-0340-0016

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hagopian)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Diane Gee

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

March 4, 2019

DECISION

1The Employer has brought a motion to strike paragraphs 6-23, 27-30, 31-54, 55(4), (5), (6) a, b and c, as well as 56-64 from the particulars provided by the Union on the basis that they advance allegations that do not fall within the scope of the grievance. This decision deals solely with the Employer’s motion.

The grievance reads as follows:

Statement of Grievance

I grieve the employer has violated my rights under Art 21 Articles 2.1, 3.1, 3.3 and the Ontario Human Rights Code regarding my discipline outlined in the August 22, 2017 letter from Jill Eyman.

Settlement Desired

• Full redress and any other remedy deemed fair by an arbitrator.

• a change in Reporting Relationship to a new manager.

2The discipline imposed on the grievor in the August 22, 2017 letter was a five-day suspension.

3The articles of the collective agreement referred to in the grievance read as follows:

ARTICLE 2 – MANAGEMENT RIGHTS

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

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).

3.3 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.

ARTICLE 21 – DISCIPLINE AND DISMISSAL

21.1 It is understood that the right of the Employer to discipline or dismiss employees shall be for just cause. The Employer’s right to discipline or dismiss is subject to the right of an employee to grieve such action. 21.2 For greater certainty, it is understood that nothing in Article 21.1 confers on a probationary employee any right to grieve or arbitrate his or her dismissal.

4The grievance was filed on August 24, 2017 and the grievor went off on sick leave shortly thereafter. The Union asked that the grievance be put on hold until the grievor returned from sick leave and the Employer agreed. As a result of this agreement, no FRS meeting was held. A couple of months later the Union put the grievance forward for scheduling and a mediation date was scheduled for September 2018. At this meeting, the Union stated that the grievance raises allegations of harassment and bullying as well as discrimination on the basis of disability. The Union provided the Employer with particulars of the harassment, bullying and discrimination allegations it asserts form part of the grievance one week before the next scheduled date of March 4, 2019.

5The particulars are 38 pages in length and describe a number of interactions dating back to the spring of 2016 between the grievor and his manager, the department manager and the branch director that are alleged to amount to bullying and harassment as well as discrimination on the basis of disability.

6The Employer refers to the Statement of the Grievance as well as the Settlement Desired as set out on the grievance form and submits that, on its face, the grievance relates solely to the “discipline outlined in the August 22, 2017 letter from Jill Eymann.” The Employer asserts that the allegation raised by the grievance is that, by imposing the five-day suspension, the Employer violated the grievor’s rights under Article 21, Articles 2.1, 3.1, 3.3 and the Ontario Human Rights Code; it is not a general harassment and discrimination grievance. It is argued that the particulars go well beyond the allegation in the grievance. The Employer asks that all paragraphs relating to events other than the circumstances underlying the five-day suspension be struck from the particulars.

7In the alternative, the Employer asks that the issue as to whether the Employer had just cause for imposing discipline should be heard first and, only if it is found that there was no just cause, would the general harassment and discrimination allegations be heard. In the further alternative, the Employer asserts that this hearing should be adjourned pending the outcome of an investigation under the WDHP policy of a complaint filed by the grievor that contains overlapping allegations and in respect of which an investigator has been appointed. The Employer argues that the same complaints cannot be dealt with in two different forums simultaneously.

8The Employer raises additional concerns with the particulars provided. First, the particulars allege that a prior one-day suspension imposed on the grievor amounted to harassment. The Employer argues that, as the one-day suspension was not grieved, it cannot form the basis of a harassment grievance now. Second, the particulars raise issues that arose after the grievance was filed; given that the grievance is concerned with a specific imposition of discipline, later events cannot form part of the grievance. Finally, it is argued that paragraph 54 of the particulars raise issues currently before the Human Rights Tribunal.

9With respect to its position as to the scope of the grievance, the Employer notes that a Union official drafted the grievance and, the grievor, who signed the grievance, is a lawyer. It cannot be suggested that the grievance was drafted by someone inexperienced or was not understood by the grievor. The Employer asserts that the grievor had a WDHP complaint outstanding at the time the grievance was filed that raises some of the very allegations set out in the particulars and thus it would not be expected or understood that the instant grievance would repeat those very same allegations. There was no FRS meeting held and at no time prior to the mediation in September 2018 did the Union, or the grievor, inform the Employer that the grievance was a general harassment and discrimination grievance. Thus, there is no basis upon which to find that the scope of the grievance is other than as set out on its face.

10The Employer relies on: Electrohome Ltd. v. International Brotherhood of Electrical Workers, Local 345 (Seniority Grievance) September 4, 1984 (Rayner); Ontario Public Service Employees Union v. Ontario (Ministry of Labour) (Jones et al) April 13, 2010 (Abramsky); Greater Sudbury Hydro Plus Inc. v. Canadian Union of Public Employees, Local 4705 (Armstrong Grievance) September 25, 2003 (Dissanayake); Society of Professional Engineers and Associates v. Candu Energy Inc. (Contract Employees Grievance) June 17, 2013 (Gee); Ontario Public Service Employees Union v. Ontario (Ministry of Children, Community and Social Services) (Solomon) December 4, 2018 (Devins) and Ontario Public Service Employees Union v. Ontario (Ministry of Children, Community and Social Services) (Laderoute) May 1, 2018 (Gee).

11The Union submits there are two points to consider. The first is the scope of the grievance and the second is the scope of the evidence. Referring to the grievance form itself, the Union argues it refers to Article 3 and the Ontario Human Rights Code so the grievance is clearly about human rights and the Union is not trying to turn the grievance into something it is not. The particulars are detailing the human rights violations identified in the grievance itself.

12The Union argues that the Employer was well aware of the issues that have been raised in the particulars from a prior WDHP complaint as well as concerns expressed by the grievor to his manager, the department manager and the branch manager. The allegations are of no surprise to the Employer. The Union states that the grievor does not accept that the prior one-day suspension he received was appropriate and submits it arose days after the Employer became aware he had filed a Human Rights complaint.

13The Union submits that no inferences should be drawn from the fact that the grievor is a lawyer. He should not be assumed to have expert knowledge of the collective agreement or how it works particularly when he is dealing with serious medical issues. The grievor should not be held to a higher standard because he is a lawyer.

14The Union states that the grievor believes very strongly that the discipline that occurred cannot be viewed in isolation and, in order to get a clear picture, all of the events need to be looked at and it is necessary to look at the motivation on the part of the manager. The grievor is of the view that the Employer’s discriminatory and harassing behaviour was designed to create an opportunity to discipline the grievor. It is stated that, when the grievor filed this grievance it was his view that he was grieving everything, not just the discipline. The discipline was the straw that broke the camel’s back.

15The Union relies on: Blouin Drywall Contractors Ltd. v. C.J.A., Local 2486, 1975 CanLII 707 (ON CA), 1975 CarswellOnt 827 (Ont CA); Ontario Public Service Employees Union v. Ontario (Ministry of Children and Youth Services) (Rafol) March 15, 2013 (Dissanayake); Ontario Public Service Employees Union v. Ontario (Ministry of Transportation) (Labanowicz) September 12, 2014 (Lynk); Ontario Public Service Employees Union v. Ontario (Ministry of Public Safety and Security) December 1, 2003 (Leighton); Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (O’Brien) January 21, 2011 (Leighton).

Decision

16As stated in Re OPSEU (Jones et al), supra, at paragraph 16, the legal principals relevant to the issue as to the scope of a grievance are well established. The starting point is Blouin Drywall, supra, wherein, at page 204, the Ontario Court of Appeal recognized the labour relations value of resolving disputes with simplicity and dispatch and determined that issues as to the scope of a grievance ought not to be won or lost on the technicality of form. While recognizing a board of arbitration is bound by the grievance before it, the Court of Appeal stated: “the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided….”

17After Blouin Drywall, a further value came to be identified in the arbitral jurisprudence as relevant when determining the scope of a grievance; resolving disputes with simplicity and dispatch also requires the parties to be given every opportunity to resolve disputes during the grievance process prior to referring the matter to arbitration and this can only happen if both parties are aware of the scope of the grievance. This value is identified and discussed in Electrohome Ltd., supra, at paragraph 14:

Although the value in maintaining a flexible approach to grievances filed before a board of arbitration is readily apparent in so far as the parties are not operating under the same rules of practice that would guide counsel in normal litigation, there is another value that must be kept in mind. The whole process of grievance arbitration, and grievance procedure, is designed to permit the parties at the earlier stages to resolve the dispute between themselves. Hence, collective agreements invariably contain grievance procedure provisions so that grievances are funnelled to an arbitration board only after the parties have had a chance to resolve the matter. It is our view that the comments of Professor Laskin and the decision in the Re Blouin Drywall case attempt to accommodate both values. If the issue raised at the arbitration hearing is in fact part of the original grievance, a board of arbitration should not deny itself jurisdiction on a technical objection as to the scope of the original grievance. To do so would be to deny the value of flexibility and would be to compel the parties to draft their grievance with a nicety of pleadings. On the other hand, if the issue raised by one of the parties is not inherent in the original grievance, for the board to permit the party to raise that issue as part of the original grievance would be to deny the parties the benefit of the grievance procedure in an attempt to resolve the issue between themselves. In fact, it would be to permit one party to substitute a new grievance for the original grievance.

18Labour relations are best served when disputes are quickly identified and simply resolved. That is the goal of the grievance procedure. An issue cannot be resolved if both parties are not aware of its scope. To have a matter arrive at arbitration without one of the parties being aware of the scope of the allegations, and to have lost the opportunity to resolve the matter in a simpler or faster way than arbitration, does not serve labour relations well. Further, to allow a party to expand the scope of a grievance beyond that referred to arbitration is to substitute a new grievance for the one filed (see: Electrohome Ltd., supra, at paragraph 14) and for the arbitrator to take jurisdiction over a grievance in respect of which they were not appointed.

19As argued by counsel for the Employer, the jurisprudence establishes that the test to be applied is whether, upon reading the grievance and/or participating in the grievance process, the Employer reasonably ought to have understood that the issue in question was part of the grievance (see for example, Greater Sudbury, supra). The test is an objective one (see: OPSEU (Rafol), supra). The considerations relevant to such a determination are discussed in OPSEU (Labanowicz), supra, at paragraph 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.

20There have been cases where an allegation that was not apparent on the face of the grievance was found to be within the scope of the grievance because the Employer was found to have acknowledged, during the course of the grievance procedure, that it understood the issue to be part of the grievance. However, the cases make clear that it is not enough that the Employer knew of the existence of the issue at the time of the grievance; rather, in order for an issue, that is not apparent on the face of the grievance, to be found to fall within scope, it is necessary for the Employer to have understood that the issue formed part of the grievance (see: OPSEU (Solomon), supra, at paragraph 11 and Candu Energy Inc., supra at paragraph 51).

21The issue for determination is thus whether the Employer ought to have reasonably understood that the grievance involved allegations of harassment, discrimination and a failure to accommodate during a period of approximately two years prior to the grievance being filed.

22The grievance refers to Article 21 of the collective agreement. Article 21 is entitled “Discipline and Discharge” and provides “It is understood that the right of the Employer to discipline or dismiss employees shall be for just cause.” The Employer concedes that the grievance raises the issue as to whether the five-day suspension imposed on the grievor by the August 22, 2017 letter was for just cause. The grievance further specifically refers to Articles 3.1 and 3.3 of the collective agreement. These articles prohibit discrimination and harassment. The grievance also refers to the Ontario Human Rights Code, albeit without reference to a specific provision. It is a trite proposition that the Ontario Human Rights Code prohibits discrimination in the workplace.

23The Statement of Grievance provides that the Employer violated the articles discussed above “regarding my discipline outlined in the August 22, 2017 letter from Jill Eymann.” The grievance links the violations to the five-day suspension. The Settlement Desired asks for full redress or any other remedy deemed fair by an arbitrator and “a change in reporting relationships to a new manager.” The Settlement Desired suggests that the issue is not confined to whether or not the discipline was for just cause but includes issues that, if substantiated, might warrant the grievor reporting to someone other than his current manager. Such a remedy is generally sought in cases where an employee alleges they have been subjected to harassment and or discrimination at the hands of their manager.

24Thus, on the face of the grievance, the Employer ought reasonably to have understood that the grievance alleged that the imposition of the five-day suspension was not only without just cause but also constituted harassment and/or discrimination. I do not find that the Employer ought to have reasonably have understood this grievance to allege that the grievor had been subjected to a pattern of harassment and discrimination dating back approximately two years including events that could have been grieved and were not and events that were the subject of other complaints in other forums. As argued, given that some of the events the grievor now seeks to have form part of the grievance had been advanced by the grievor in other proceedings as harassment and/or discrimination and were not referred to in any fashion in the grievance itself, it would be reasonable for the Employer to have assumed they did not form part of the grievance. I thus find that, aside from the imposition of the five-day suspension, the grievance does not allege that any other events detailed in the particulars amount to a violation of the collective agreement or the Ontario Human Rights Code.

25The Union argues that, if the additional allegations do not form part of the grievance, evidence of such allegations remains admissible, as a finding that the grievor had been subjected to other acts of discrimination and harassment would support his assertion that the imposition of the five-day suspension was harassment and/or discrimination. The Employer argues that evidence of other allegations would not be admissible as they are irrelevant.

26I have determined above that the grievance is confined to the allegation that the imposition of the five-day suspension was without cause and amounts to harassment and/or discrimination. The grievor’s manager and the branch manager were both involved in the imposition of the five-day suspension. Given the department manager’s position lies between these two individuals I assume that he also had a role in imposition of the discipline. The additional allegations that the Union seeks to enter into evidence are all events that the Union characterizes as harassment and or discrimination by any one or all of the grievor’s manager, department manager or the branch director. Given that these allegations do not form part of the grievance, evidence of such allegations would only go to show that the three individuals in question have a propensity, or are the type of people, to harass and discriminate against the grievor. The law is well settled that, in order for similar fact evidence to be admissible, it must meet the initial test that it has relevance for some purpose other than that it tends to show the individual is the type of person likely to have engaged in the alleged conduct. The evidence is not admissible for the purpose of arguing the managers harassed and discriminated against the grievor in the past, thus they were likely to do so in the case of the five-day suspension.

27However, the Union suggests that the evidence may in fact be relevant to providing an explanation for the grievor’s conduct for which he was disciplined serve as mitigating circumstances. The first paragraph of the particulars sets out the grievor’s comments concerning the allegation for which he received the five-day suspension. The relevant part of the particulars read as follows:

1. Regarding the first allegation in Susan Halenda’s notice of hearing concerning the emails I sent to two solicitors, my comments are as follows:

a) I was quite stressed in July from having far too much work assigned to me.

b) I didn’t want to disobey the directions that Susan Halenda had given me in June regarding the priority sequence in which my files were to be processed.

c) Two clients sent emails to me in early July asking when I would be able to complete their files, and I had to give them a reply. I was under a lot of pressure, as I was busy working on files when I received the emails. I was also at this time distracted by my upcoming surgery.

d) I had the best intentions when I gave the solicitors my truthful reply; I said I would not be able to process their files before my surgery because of the file priority system that I was obligated to follow. I provided them with the name of our department manager, Peter Monastyrskyj, if they had any questions, because it was Peter who advised me in an email dated June 22, 2017 that I was to follow Susan’s instructions on how my files were to be processed.

28The Union argues that evidence that the grievor was overworked and under stress as a result of the events that underlie the additional allegations is admissible as, if it is found that discipline was warranted, the overwork and stress the grievor was under would be mitigating circumstances that ought to be taken into consideration when determining whether a five-day suspension was appropriate.

29It is my determination that, to the extent the particulars go to establishing mitigating circumstances, they are relevant and, except as dealt with below, are not struck.

30The Employer argues that any allegations that relate to events that post-date the imposition of the five-day suspension are not relevant. I agree. If the only basis for the additional allegations is that they may serve to establish mitigating circumstances events that post date the five-day suspension are irrelevant. Accordingly all paragraphs that relate to events that post date the imposition of the five-day suspension are hereby struck.

31The Employer argues that the grievor cannot rely on events that underlie a one-day suspension imposed on March 1, 2017 as it was not grieved. Dispute resolution is of little value if disputes, thought to have been put to rest, can continually be advanced. In the case of an event such as the imposition of discipline, that clearly could have been the subject of a grievance, and was not, the Employer is entitled to assume that the events underlying the discipline will not later be brought up and challenged. To permit the events underlying ungrieved discipline to later be challenged in another grievance would not only undermine finality it would undermine the provisions of the collective agreement that require a grievance to be filed and processed within time limits. It is my determination that the grievor cannot rely on events that underlie the one-day suspension.

32The Employer argues that there are allegations that overlap with an outstanding human rights complaint and a Workplace Discrimination and Harassment Complaint and they too cannot be relied upon as the grievor cannot pursue the same allegations in two different forums. The Employer is correct. The same allegations cannot be pursued in two different forums at the same time. The grievor must adjourn or withdraw any complaints he has before another forum that overlap with his allegations in this matter or he cannot rely on them in this proceeding.

33I hereby direct the parties to consult and jointly agree as to which paragraphs of the particulars are struck as a result of the above determinations. If the parties cannot reach a complete agreement, they are to advise the GSB as to those paragraphs they agree are struck and which ones are in dispute. I will make a final determination on the ones in dispute.

34The Employer, as one of its alternative arguments, asks that the issue as to whether the Employer had just cause for imposing discipline be heard first and, only if it is found that there was no just cause, would the general harassment and discrimination allegations be heard. I have considered this approach. One of the factors to consider when deciding whether or not to bifurcate issues is whether the evidence that would be adduced in respect of the issues overlaps. Where the evidence significantly overlaps any savings of efficiencies achieved by bifurcation is lost. In this case, I am concerned that the evidence that would be adduced as to the context within which the five-day suspension was imposed would overlap with that relevant to the remaining issues.

35Nothing in this decision should be taken as suggesting, or finding, that the allegations, as set out in the paragraphs of the particulars that remain, would serve as “mitigating circumstances.” Mitigating circumstances serve to diminish a grievor’s culpability. The fact that the grievor considers his manager to be unqualified, inexperienced and lazy and resists instructions given to him that he considers to be wrong or to set a bad precedent, would not service to diminish his culpability. It is the responsibility of staff to follow the instructions of management. Further nothing in this decision should be taken as suggesting, or finding, that there was just cause for the five-day suspension or that a five-day suspension was appropriate in the circumstances. That has yet to be determined.