GSB#2017-1413

UNION# 2017-0584-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Cooper)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Allison Vanek Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 2, 2019 (by teleconference)

SUBMISSIONS Written Submissions completed by May 31, 2019

Decision

1By decision dated April 15, 2019, I invited further submissions on certain matters:

17. Because of the process adopted in this case, I am able to assess the relevance of the particulars which the Employer seeks to strike by reference to what would be in essence the Union’s entire case in chief were those particulars permitted to stay. Having carefully reviewed the Union’s particulars and the Grievor’s declaration, it is not apparent to me how the events which pre-date 2017 would be relevant to proving the events which post date 2017 constitute harassment. The earlier events relate to very different issues, not accommodation. Further, there is no overlap between those involved in the accommodation process and those involved in the earlier incidents.

18. By contrast, the events during the period February 2017 to March 2019 all relate to the accommodation process. To the extent the Grievor asserts the Employer’s actions during this period constituted a subtle form of harassment arising from a course of conduct, the period is of sufficient length for the Union to attempt to prove its case.

19. The Employer, however, did not object to all particulars which pre-dated February 2017. Rather it objected to all particulars which pre-dated the grievance by more than three years. The Union, therefore, has not had an opportunity to make submissions with respect to the relevance of particulars with respect to the events from October 2014 to February 2017. Accordingly, prior to deciding whether to strike those particulars, the Union shall have the opportunity to make such further submissions as it may wish to make. Any such submissions shall be filed in writing no later than May 24, 2019. The Employer shall have until May 31, 2019 to file any submissions in reply.

2A conference call was held on May 2, 2019 in relation to this matter, and the parties filed submissions in accordance with the direction in the decision dated April 15, 2019.

3The Union’s submissions state in material part:

8. While the Union recognizes that this Board has broad statutory discretion regarding the admissibility of evidence in this proceeding, the Union submits that in the instant case, the incidents described in the Union's Particulars from the period of July 31, 2014 to February 2017 are indeed relevant to demonstrating that the incidents in the Union's Particulars post-February 2017 constitute harassment of the Grievor, and it is therefore appropriate to allow the Union to call evidence to support these facts.

9. In general, many of the incidents detailed in the time between July 31, 2014 and February 2017 demonstrate the failure of OCWA management to take the Grievor's medical needs and requests seriously, and properly accommodate the restrictions identified by his doctors and imposed by his disability. This can be observed in several ways.

10. For example, although the Grievor submitted a medical note by Dr. Michael West on June 2, 2014, restricting him from working on night shifts, it is the Grievor's evidence, as described in his Declaration, that he continued to be placed on night shifts even after this. His very last shift at work, on October 24, 2014, was a 12- hour overnight shift, in defiance of Dr. West's explicit order.

11. Additionally, when the Grievor complained to members of OCWA management regarding his suspicions that other employees were deliberately putting nails in the tires of his car, his concerns were brushed off and no action was taken.

12. Furthermore, during his initial attempt to return to work, the Grievor's principle restriction due to his disability was his inability to continue to work within OCWA. All his medical from 2017 and onwards points to this restriction. The only accommodation proposed by the Employer, on November 7, 2017, did not take into this restriction into account and specifically contemplated a gradual return to work plan that would eventually put the Grievor back in the workplace that his disability restricted him from entering.

13. However, while off on sick leave, the Grievor made numerous attempts to try to find work outside of OCWA, applying for various positions with other employers, including an application in February 2016 to the City of Hamilton and another in March 2015 to the Region of Niagara, both of which are identified in the Union's Particulars. But many of his attempts to find work outside of OCWA were thwarted by OCWA management providing negative references.

14. These thwarted attempts to find work outside of OCWA between 2014 and 2017 are relevant to the Grievor's attempt to be accommodated by his Employer when he attempted to return to work in 2017. They demonstrate the sincerity and desperation in the Grievor's desire to work outside of OCWA, away from the people that were harassing him and the workplace that his Employer had allowed to become toxic. And they demonstrate how his Employer continuously blocked his ability to do so.

4Paragraph 9 of the Union’s submissions refers to the failure of “OCWA management” to take the Grievor’s needs and requests seriously. Paragraph 10 gives an example. Paragraph 11 refers to complaints to “members of OCWA management”.

5In my view, allegations of harassment must be specific. If regard is had to Mr. Cooper’s Declaration, the only member of management referred to in events which both pre-date and post-date the accommodation process is Tony Puim. References to Mr. Puim during the accommodation process are found at paragraphs 327, 337 and 399 of Mr. Cooper’s declaration, set out in their entirety in Appendix A to this decision. None of those references allege any act on the part of Mr. Puim, let alone an act which might be considered part of a course of conduct amounting to harassment. Mr. Puim’s conduct prior to February, 2017 is therefore irrelevant to the issue of whether the Grievor experienced harassment during the accommodation process.

6Paragraph 12 of the Union’s submissions refers to the nature of the Grievor’s disability. This is clearly relevant to the accommodation process. It does not, however, make the source of that disability relevant to the accommodation process. As stated at para 14 of the April 15, 2019 decision:

14. The Union argues that they are relevant to understanding why the Grievor was off on sick leave in the first place. The Grievor would not have needed to be accommodated but for the Employer’s failure to provide a safe workplace free from harassment. I do not accept this argument. The Employer’s duty to accommodate arises from the existence of a disability at the time the accommodation request is being considered, not the reason for that disability.

7Paragraph 13 of the Union’s submissions refers to the Grievor’s attempts to find employment outside the OCWA. In paragraph 14, the Union argues this demonstrates the “sincerity and desperation” of the Grievor’s desire to work elsewhere and that it demonstrates “how his Employer continuously blocked his ability to do so.”

8At this point, it appears to me that the Grievor’s sincerity and desperation are at best collateral to any issue in these proceedings and in any event do not appear to be in dispute. With respect to the allegation that “his Employer” continuously blocked the Grievor in these efforts, my comments at paragraph 5 above are applicable.

9For all of the foregoing reasons, and those stated in the April 15, 2019 decision, the allegations in the Union’s representations and paragraphs in the Grievor’s Declaration with respect to events which predate the attempts to accommodate the Grievor commencing in 2017, are struck.

Dated at Toronto, Ontario this 7^th day of June, 2019.

Appendix A

327. I received an email from Manulife stating the following: "This email is in response to you from the date of March 31, 2017. I have spoken with your Human Resources Department for the Ontario Clean Water Agency. They have advised that they have spoken to your Manager named Tony Puim and have begun the process of looking at getting you into a different location."

328. May 6^th, 2017 I received teleconference meeting request from Sharmilla Setaram included are Tony Puim, Sabrina Dubeau, Gary Mansfield, and myself.

[Exhibit 22

Teleconference Invitation, May 6, 2017]

399. November 8^th, 2017 from OWWOC to James

Hello James,

Upon review of your request to renew your Class 4 Water Treatment, Water Distribution & Supply and Water Quality Analyst certificates, we regret to inform you that your applications cannot be processed at this time because we are missing signature of authorized representative under "Part F - Operating Experience Verification."

Please have Tony Puim sign the attached page and resubmit it to our office as soon as possible, so we can process your request.

If you have any questions/concerns, do not hesitate to let me know. Regards,

Jonathan Loureiro, Certification Administrator [Exhibit 52 - Email from OWWOC, November 8, 2017]