GSB# 2017-0054; 2019-0397
UNION# 2017-0546-0002; 2019-0586-0011
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 Smith et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Children, Community and Social Services)
Employer
BEFORE
Ian Anderson
Arbitrator
FOR THE UNION
Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel
HEARING DATE
November 23 and December 14, 2020
DECISION
1The grievance before me alleges discrimination on the basis of union activity. The union activity in question is reliance upon a settlement in relation to a prior grievance filed by the Grievor. That settlement provided the Grievor with a developmental opportunity of six months less a day as a caseworker in the Ontario Disability Support Program (“ODSP”) office at 786 Lawrence. It also stated the Grievor would need to apply for and successfully compete for another position in order to be extended beyond that time. The Grievor alleges that she experienced discrimination while in the developmental opportunity and was not properly considered for another position for which she applied because she obtained the developmental opportunity as a result of the settlement. The Employer denies the Grievor experienced discrimination in any form.
2The Union notes there is seldom direct evidence of discrimination on the basis of union activity, rather such discrimination generally must be inferred from circumstantial evidence. The Union argues the Grievor was treated differently in several respects, discussed in greater detail below. The Union argues the Employer has failed to provide a rational business explanation for these distinctions and accordingly it can be inferred they are a product of the Grievor’s reliance upon the terms of the settlement of her previous grievance, and hence constitute discrimination on the basis of union activity.
3The Union’s argument rests on several premises: that the Grievor was treated differently from others; that the Employer has not provided an explanation for this differential treatment; and that accordingly I should infer the basis for the differential treatment was union activity, i.e. her reliance upon the terms of the settlement of her previous grievance. In order for the Union’s argument to succeed, all of these premises must be satisfied with respect to at least one of the areas in which differential treatment is asserted.
4The Grievor commenced her position at 786 Lawrence on July 9, 2018. When she arrived, the Grievor was told her manager would be Louise Greco. Caseworkers at the ODSP office at 786 Lawrence are assigned numbers and divided into three teams. The Grievor was assigned number 209 which had belonged to a caseworker who was on Team Two and reported to the manager of Team Two. The Grievor testified she was seated in an area with members of Team One, and in fact directly in front of the office of the manager of Team One. Ms. Greco, to whom the Grievor reported, managed Team Three. She was directed to attend team meetings and invited to team rapport exercises like holiday gatherings of Team 3, which was neither the team she worked with nor sat with. As a result the Grievor felt centred out and the object of curiosity.
5Ms. Greco was aware the Grievor received her position as a result of a settlement, but was unaware of any of the other terms of the settlement. Ms. Greco’s evidence was that the Grievor’s initial assignment to 786 Lawrence resulted in the caseworker staffing being over the normal complement of 51. The work done by all caseworkers is essentially the same. The caseworker numbers relate to postal codes, which is the manner in which the work is divided. Initially the Grievor was assigned to work on Ms. Greco’s team as a double fill. When a vacancy occurred in a position on Team 2, she was assigned the case load of the person who had left. While the position of caseworker 209 remained under the manager of Team 2 on the organization chart, this was in error. The Grievor continued to report to Ms. Greco and this should have been reflected in the organizational chart. When the office was first set up, members of a given team were seated together but over time with turnovers, this was less true with the result that members of a given team did not necessarily sit together. None of the Grievor’s reporting, working or seating arrangements were unusual, although in cross-examination Ms. Greco agreed that all three together was not a circumstance that happened a lot.
6The Union notes Ms. Greco’s evidence was that the Grievor’s assignment, seating and reporting relationships reflected the fact that the Grievor’s arrival at 786 Lawrence resulted in the office being over-complement. As there was no specific vacancy to which she could be assigned, she had to be fitted in where they could. The Union argues, however, that the situation continued past the time when the office was no longer over-complement.
7The Grievor believed the reason the situation was maintained was because Ms. Greco wanted to control her time in the office. The ad hoc manner of the arrangements suggested to the Grievor that there was never any intention to absorb her into the unit. Rather, her placement was a temporary blip which the Employer had to work around.
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