IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Auguste)

Union

and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 27, 2019

Decision

1The Board was initially seized with five grievances filed by Ms. Carole Auguste (“grievor) between August 2017 and March 2018. When the Board convened on May 27, 2019 the parties informed that they had agreed to consolidate a sixth grievance dated April 16, 2018 filed by her.

2This decision is about a dispute between the parties whether the Board should consolidate two further grievances filed by the grievor (“new grievances”) on November 7, 2018 and January 23, 2019, as requested by the union.

3The six grievances already consolidated on agreement in substance allege that the employer used performance coaching sessions to target the grievor for intimidation and harassment, and that she was subjected to a poisoned work environment. Two of the grievances are specifically about disciplinary suspensions without pay of five and ten days respectively imposed on her on the grounds that she acted inappropriately at coaching sessions.

4The two new grievances which the union seeks to consolidate result from coaching sessions held on November 7, 2018 and January 23, 2019, and are identically worded as follows:

I grieve the violation of the collective agreement but not limited to article 2 where the employer has made me attend coaching session on November 7, 2018 in person after the employer committed to do and send the coaching sessions notes via email. The union reserves the right to rely upon any other applicable articles.

In each of them, the “settlement desired” is “(1) Full redress (2) Any other compensation deemed to be fair by the Vice Chair at the Governance Settlement Board”.

5Union counsel submitted that the six grievances already consolidated are about harassment and intimidation of the grievor and her being singled out for such treatment with the motive of subjecting her to progressive discipline potentially leading to termination of her employment. He submitted that those grievances were consolidated because they allege a pattern of conduct.

6The two new grievances allege that the grievor was required to attend coaching sessions in person contrary to a commitment by the employer that they would be conducted via e-mail. Counsel agreed that the new grievances are differently worded and do not specifically cite article 3 (discrimination) or 9 (health and safety). He pointed out, however, that the grievances explicitly reserve the right to rely on any other applicable articles. He submitted that there is a factual link between the two new grievances and the six grievances in that the requirement, contrary to agreement, that the grievor’s coaching sessions be held in person, was part of the employer’s pattern of conduct of singling out the grievor for intimidation, harassment and discipline by using in-person coaching sessions.

7Union counsel argued that the grievor has already received 5 and 10 day suspensions, which are grieved in two of the consolidated grievances. If the new grievances are not consolidated, the grievor may be subjected to further progressive discipline and termination. Therefore, he submitted that if the Board decides not to consolidate the new grievances, the Board should hear and determine the new grievances after the consolidated grievances.

8Employer counsel objected to the requested consolidation. He submitted that only article 2 (Management Rights) is cited in the new grievances. The only allegation in those is that the employer required the grievor to attend coaching sessions in person contrary to an agreement to do them by e-mail. Unlike the rest, the new grievances do not cite articles 3 or 9. He submitted that the new grievances only raise the issues of the scope of the management’s rights in how to conduct coaching sessions, and promissory estoppel.

9Employer counsel also pointed out that the manager involved in the new grievances is different from the manager involved in the consolidated grievances. She did not have any involvement in relation to the allegations about what occurred at the coaching sessions referred to in the consolidated grievances. Therefore, it is more efficient to hear them separately.

10Employer counsel also submitted that with a record of 5 and 10 day suspensions it is unlikely that the grievor would progress to the ultimate penalty of termination.

11The parties agree that the Board has the authority to consolidate grievances. Reference was made to the Board’s Rules of Procedure.

12The Board’s Rules of Procedure do not stipulate a binding and definitive test that can be applied in all cases. They are only guidelines for consideration of whether or not to consolidate. There is significant discretion on the trier of fact, and for good reason. Each case must be determined on its own circumstances. The ultimate goal is to make best use of the Board’s resources and time. Practical considerations are paramount, provided there is no prejudice to either party.

13In CAW and Dresser Canada Inc., [1987] OLRB Rep October 1234, the Ontario Labour Relations Board (Surdikowiski) wrote at para 8:

Strictly speaking, the effect of consolidation is to fuse two or more proceedings into one. Accordingly, consolidation will only be appropriate in circumstances where there is an identity of parties and issues in two or more proceedings. The term has come to be used somewhat more loosely so that “consolidation” may be appropriate where the parties and issues are substantially the same. Technically, it is more appropriate, in such circumstances, that the matters be “heard together” rather than “consolidated”. When matters are heard together, they retain their individual identities but the evidence and representations of the parties with respect to all matters in issue in all the proceedings are heard at one time by one trier of fact and law. Hearing matters together can be a useful alternative to consolidating them into one, where the circumstances are such that consolidation is inappropriate but the practical exigencies make it desirable to have the matters proceed together. The object of either consolidating a number of proceedings, or have them heard together, is the same; that is, to save expense and avoid a multiplicity of proceedings. Underlying these practical concerns are legal considerations; namely, the parties involved and the issues raised in the various proceedings in question. Where the parties and issues are not substantially the same, it will generally not be appropriate or particularly useful to either consolidate the various proceedings or have them heard together. It is trite to say that it will not always be obvious that two or more proceedings should or should not proceed together and

Ontario Public Service Employees Union (Auguste) v. The Crown in Right of Ontario (Ministry of Government and Consumer Services), 2019 CanLII 78766

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Union