GSB# 2019-2628; 2019-0219; 2019-0220

UNION# 2020-5112-0001; 2019-5112-0046; 2019-5112-0047

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Frater)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Tatiana Wacyk

Arbitrator

FOR THE UNION

Amani Rauff and Max Halparin Dewart Gleason LLP Co-Counsel

FOR THE EMPLOYER

Julia Evans Treasury Board Secretariat Legal Services Branch Senior Counsel

SUBMISSIONS

Written submissions received November 30, December 22, 2020; and January 8, 2021

INTERIM DECISION

1The Grievor is a registered nurse. She was employed by the Rouge Valley Health System (Ajax and Pickering which subsequently joined Lakeridge Health) between 2008 and 2017, and by the Toronto South Detention Centre (“TSDC”) (the “Employer”) between 2014 and January 2020.

2This decision addresses the Union’s motion to have the following three grievances heard at the same time or one immediately after the other. The motion is opposed by the Employer. Indeed, as will be addressed below, the Employer requests Grievance 2019-5112-0047 (Harassment and Discrimination) be held in abeyance.

3Finally, the Union advised that the parties agreed to waive the Formal Resolution Stage Meeting (Article 22.3) and to move directly to arbitration.

GRIEVANCES:

Grievance 2019-2628 (Dismissal Grievance)

Union

4This is the only Grievance currently before me. It grieves the Grievor’s dismissal from employment for alleged sick leave abuse.

5The Employer alleges that in 2015 and 2016 the Grievor worked in nursing positions at both the TSDC and Lakeridge Health, without declaring a potential conflict of interest. It is also alleged the Grievor abused the sick leave benefits provided by TSDC, by working at one institution while simultaneously collecting sick leave pay at the other.

6The Union submits the Grievor’s evidence will be that the Employer’s rules of conduct regarding the technical requirement to report another job are not regularly or uniformly enforced.

7Specifically, the Union submits the Employer did not terminate the employment of another registered nurse in its employ who engaged in the same behaviour of which it accuses the Grievor, albeit with respect to two other institutions, i.e. CAMH and Toronto Western Hospital.

8The Union submits a breach of this nature ought to have the same implications with respect to the Employer’s ability to trust the employee going forward, regardless of the institutions at which it occurred. However, the Union points out the Employer not only did not terminate that other nurse’s employment, but allowed her to continue to work on desk duty during the suspension of her licence by the College of Nurses (the “College”) - for essentially the same allegations as those made against the Grievor.¹

9The Union further submits that in terms of “mitigation of penalty”, the Grievor’s actions were the result of a combination of factors, including the Employer’s failure to properly accommodate the Grievor, and arbitrarily refusing to allow her to switch shifts so that she could maintain a manageable schedule.

Employer

10The Employer denies differential treatment between the Grievor and the other nurse referred to by the Union. It points out the College had already issued discipline in respect of that nurse’s conduct. It also points out the nurse was in the employ of two other medical institutions when she engaged in the conduct at issue - not while she was a TSDC employee.

11In addition, the Employer submits that individual had already faced repercussions in terms of her employment at both of those institutions.

12Accordingly, the Employer submits the TSDC had no obligation to report this employee’s conduct, or to take disciplinary action to deal with conduct that had already been dealt with by the employee’s former employers and the College.

Grievance 2019-5112-0046 (ASMP Grievance)

13The parties’ submissions indicate this Grievance concerns the Employer’s alleged placement of the Grievor into Level 4 of its Attendance Support and Management Program (the “ASMP”). The reference to “alleged placement” reflects that the parties’ are still attempting to determine whether the Employer did, in fact, place the Grievor in Level 4 of the ASMP.

Union

14In any event, the Union indicates the Grievor has a medical condition which, at times, prevents her from working. As a result, the Grievor uses sick time, and has provided medical documentation to substantiate her absences.

15In or about 2008, the Grievor was advised she had been placed in Step 1 of the ASMP.

16The Union submits no further meetings occurred between the Grievor and the Employer, until in or about March 2019 and, the Grievor was unaware she remained in the ASMP in the intervening time.

17In or about March 2019, and as indicated above, the Employer allegedly (but not definitively) advised the Grievor she had been placed into Level 4 of the ASMP.

18In this ASMP Grievance, the Grievor alleges she should not be at Level 4 of the ASMP because: she has been ill with a chronic illness for extended times and much of her illnesses should be bundled; the time she had taken time off for personal emergencies was not reflected in the AWTS; the time she was suspended was not reflected in the records; and, the AMTS does not reflect the actuality of the time off.

19The Grievor further alleges it was unfair for sick leave to be bundled to a Level 4 when the Employer “did/said nothing prior to let staff know sick time was an issue”.

20The Union maintains the placement of the Grievor into Level 4 of the program put her employment in jeopardy as the ASMP states that:

[I]f senior management is satisfied that the employee’s absenteeism is excessive and there is no reasonable prognosis for improvement, after taking into account the employer’s obligations to accommodate the employee, the employee’s employment may be terminated for innocent absenteeism.

21The Union’s position is that the Employer’s application of the ASMP to the Grievor was discriminatory and contrary to her rights pursuant to the Collective Agreement and the Human Rights Code. It maintains the placement of the Grievor directly into Level 4 of the ASMP, and its accompanying threat to terminate her employment, were adverse treatment, as well as constructive or adverse-effect discrimination related to her disability.

22The Union indicates it will further submit the Employer failed to meet its procedural and substantive obligations to accommodate the Grievor in that the Employer did not implement the recommendations of the Grievor’s physician that she be given a consistent shift.

23Nor did the Employer seek information from the Grievor concerning her disability and its effect on her ability to attend and perform work, or explore options that might make the workplace accessible to her.

Employer

24In its response, the Employer submits the Grievor has not provided any particulars as to what information she received, if any, indicating she was at Level 4 of the ASMP program.

25Nor has she provided any particulars to support her assertion that her employment was in any way in jeopardy as a result of her attendance. The Employer maintains that at no time did the Employer make threats to terminate the Grievor as alleged in the Union’s submissions.

26Finally, the Employer points out the ASMP is managed by Staff Services at TSDC and overseen by the Deputy Superintendent Staff Services. Specifically, the Employer points out the ASMP was not managed by the Grievor’s Nurse Manager, who, at all relevant times, was Mary Dwyer. The significance of this will be addressed below.

Grievance 2019-5112-0047 (Harassment and Discrimination)

Union

27The Union advises this Grievance alleges that “management” discriminated against the Grievor and harassed her by, inter alia, suspending her employment and reporting her to the College of Nurses (“College”) in August 2017.

28The suspension and report to the College resulted from the death of an inmate at the TSDC in September 2015.

29The Union points out the Grievor was not on shift when the death occurred.

30Further, the Employer did not discipline any of the corrections officers on shift prior to or when the death occurred.

31Rather, the Grievor understands she is the only employee reported to the College. While the Employer reprimanded the nurse who was on shift when the death occurred, she was not suspended or reported to the College.

32The Union further indicates the Employer included in its College complaint, that the Grievor did not fill out forms as required, and that she had used a derogatory and negative tone in an email.

33The Union submits that neither nurses nor the physicians themselves were properly filling out the relevant forms at the time, due to short-staffing at the TSDC, and due to the Employer’s condonation of this behaviour.

34The Union’s position in this Grievance is again that the Employer discriminated against the Grievor by singling her out in its discipline and report to the College.

35Arbitrator Johnston declared the suspension itself to be null and void on January 30, 2020, on the basis it was not imposed within a reasonable timeframe.²

36However, the Union points out the suspension was still on the Grievor's record at the time of her dismissal, and was vacated 15 days later.

Employer

37The Employer points out the Grievance itself refers to “Mary” (presumably Mary Dwyer, the Grievor’s Nurse Manager) as the management representative the Grievor alleges had harassed and targeted her, by reporting her to the College in relation to the inmate’s death.

38The Employer also points out the Grievor’s suspension followed a completed CSOI disciplinary investigation, in which the Employer concluded the Grievor's medical assessment was negligent. The Employer indicates its report of the Grievor to the College occurred at or around the time of the suspension.

GRIEVANCE SETTLEMENT BOARD - RULES OF PROCEDURE:

39The governing Rule of Procedure in this instance is set out below:

3. Consolidation of Cases

Where two or more proceedings are pending before the GSB and it appears to the GSB that,

a. they have a question of law or fact in common;

b. the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

c. for any other reason an order ought to be made under this rule,

the GSB, on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that:

d. the proceedings be consolidated, or heard at the same time or one immediately after the other; and/or

e. any of the proceedings be stayed until after the determination of any other of them.

UNION SUBMISSIONS:

40The Union maintains the Grievor’s dismissal represents a further instance of a pattern in which the Employer has singled her out for discipline for behaviour it has condoned or punished less harshly in other employees’ cases.

41The Union submitted that Rule 3 of the Board’s Rules of Procedure, set out above, provides broad discretion to consolidate cases or order that they be heard together.

42The Union points out such discretion is not limited to circumstances in which there are questions of law or fact in common or the relief claimed arises out of the same transaction or occurrence.³ Rather, the Board may make an order, as set out in Rule 3 c. “for any reasons an order ought to be made under this rule.”

43The Union pointed out that in Ontario Public Service Employees Union (Kennett) v Ontario (Ministry of Community Safety and Correctional Services), Arbitrator Misra elaborated that on a motion for hearing together or consolidation, the Board may consider such factors as efficient use of resources, cost savings, avoiding conflicting findings of fact, the orderly and efficient disposition of grievances, and whether either party would be prejudiced by an order for the matters to be consolidated or heard together.⁴

44The Union submits that in all of these grievances it will ask the Arbitrator to make findings of fact as to whether the Employer discriminated against the Grievor and failed to accommodate her disability.

45The Union maintains this is true not only regarding the Grievor’s discipline and harassment, but also with regard to the Union’s allegations that the Employer has singled the Grievor out for attendance management. In that respect the Union argues that placement in the ASMP is a tool by which the Employer may single employees out, and can lead to termination of employment.

46The Union further submits that in terms of the efficient use of resources, it will call the same or very similar evidence with respect to each of these Grievances on the issues of discrimination and failure to accommodate.

47The Union relied on Vice-Chair Mikus’ decision in Ontario Public Service Employees Union (Scott) v Ontario (Ministry of Community Safety and Correctional Services) ⁵, to argue it would not make sense to require it to present the same evidence on the issue of discrimination and failure to accommodate in both hearings.

48In that instance, Vice-Chair Mikus determined that two grievances ought to be consolidated. One grievance alleged the grievor had been subjected to systemic and direct discrimination and harassment. Following this grievance, the grievor went off on extended sick leave. The second grievance alleged the Employer had failed to accommodate her return to work. Vice-Chair Mikus found:

I am of the view that these two grievances should be consolidated. They will have common questions of law and fact arising from the first grievance. The evidence necessary for the Union to prove its case will, according to Mr. Leeb, involve medical evidence about the effect the harassment and discrimination has had on her health. That evidence, the Union asserted, is central to its claims on the merits and the remedy. It makes no sense to require the Union to present that same evidence on the issue of accommodation in both hearings. It will prolong a decision on the merits and require additional time and resources that might be avoided by the consolidation of these two grievances.

49The Union pointed out Vice-Chair Mikus also reached a similar conclusion in Ontario Public Service Employees Union (Pace) v Ontario (Ministry of Community Safety and Correctional Services)⁶. In that instance, Vice-Chair Mikus was already seized with two grievances. The first dealt with an allegation of a poisoned work environment and a violation of the WDHP Policy. The second addressed a disciplinary suspension involving the same grievor. That grievance was subsequently dismissed. The grievor brought two more grievances, one alleging a breach of her right to privacy, and the other grieving her dismissal.

50Vice-Chair Mikus found the facts giving rise to the grievance claiming a breach of the grievor’s rights to privacy derived from the same facts as her dismissal grievance, and they should be consolidated with two other grievances already before her. In addition, she found that while the discharge grievance should proceed expeditiously, in order to make decisions in the context in which they occurred, the suspension grievance should precede the dismissal grievance.

51In this instance, the Union submitted that hearing the grievances together will further avoid conflicting findings of fact on both the issues of i.e. discrimination and failure to accommodate.

52Finally, the Union noted that hearing the grievances together as opposed to consolidating them provides the Arbitrator and parties with greater flexibility in terms of managing the proceeding. As cited in Ontario Public Service Employees Union (Upson) and Ministry of Community Safety and Correctional Services.⁷

Strictly speaking, the effect of a 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.

53Accordingly, the Union requests these grievances be heard together.

EMPLOYER SUBMISSIONS:

54The Employer argues these three Grievances should not be heard together, as the relief claimed in each does not arise out of the same transaction or occurrence or series of transactions or occurrences. Nor do they have questions of law or fact in common.

55The Employer points out that in this instance, the Grievor’s dismissal resulted from her alleged fraudulent conduct in relation to her employment at TSDC and Lakeridge Health in 2015 and 2016, and in no way relates to patient treatment, which is the issue in the Harassment and Discrimination Grievance.

56The Employer further submits that whether the Grievor was at Level 4 of the ASMP in March 2019, and whether her absences should have been consolidated, also has no connection to and no bearing upon the Dismissal Grievance. Nor are the issues temporally related.

57The Employer also submits the law pertaining to discrimination and the duty to accommodate is unrelated to the law pertaining to the abuse of employee benefits and just cause for dismissal.

58The Employer also points out the ASMP was managed by Staff Services and the Deputy Superintendent Staff Services, and not the Grievor’s Nurse Manager, Mary Dwyer, against whom the Employer presumes the allegations of harassment are made.

59The Employer submits the ASMP Grievance will therefore involve entirely different witnesses from those to be heard in the Harassment Grievance.

60The Employer further points out the Grievor’s dismissal was under the direction of the Deputy Superintendent Administration.

61The Employer maintains it did not rely upon the previous suspension on the Grievor’s record in deciding to dismiss her. In any event, it concedes the suspension has been voided by the Board, and the decision regarding whether the dismissal ought to be upheld will have to be assessed solely on its own merits.

62The Employer also points out the Dismissal Grievance does not contain an allegation of discrimination, harassment or a breach of the Human Rights Code. Rather, that Grievance states:

Without diminishing the generality of, and in addition to any/all applicable Acts, Policies, standard practice etc,, I grieve the Employer violated (including but not limited to) the following article (s) of the Collective Bargaining Agreement: Article 21.1.

Grievance details: The grievor’s employment was terminated by the employer without just cause.

63The Employer argues that raising an argument of general discrimination and harassment to attempt to connect the three Grievances, given that such allegations were not initially contained in the Dismissal Grievance, is not a sufficient basis upon which to find that these Grievances should be heard together.

64The Employer concedes the Board jurisprudence with respect to the consolidation of cases grants broad discretion in determining whether grievances should be heard together.⁸ However, the Employer pointed out that each case must be decided on its own particular set of facts or circumstances.⁹

65The Employer maintains that in this instance, there are no compelling reasons to have these Grievances heard together.

66In support of this assertion, the Employer relied on the Board decision in Ontario Public Service Union of Ontario (Upson) v. Ontario (MCSCS).¹⁰ In that instance, the employer sought to have four grievances heard together.¹¹

67Arbitrator Harris concluded that two of the grievances, one a reinstatement grievance involving one grievor and the other, a health and safety grievance by a second grievor, should be consolidated as they arose out of one common incident, an assault by the first grievor on the second.

68However, the two other grievances,¹² both brought by the second grievor, were to be scheduled separately. One related to an issue of to whom the video of the assault was shown, and one related to the grievor being taken off sick leave after the assault. Despite some connection to the assault, Arbitrator Harris found that the first grievance had little to do with the situation that led to the assault and that the second grievance “did not impinge to a significant enough extent on the issues of fact and law relating to the assault.”

69The Employer also relied on the Board’s decision in Ontario Public Service Union of Ontario (Samsone) v. Ontario (MCSCS),¹³ in which Arbitrator Harris assessed whether two grievances should be consolidated with three other grievances already consolidated before the Board. The Union argued that all five grievances raised issues of discrimination and health and safety in the context of the grievor’s activity in the union.

70However, Arbitrator Harris found that the two additional grievances, which dealt with a death threat to the Grievor and the handling of that threat by management, were wholly distinct from the other three grievances, and “centred on a discrete episode” involving different individuals than the other grievances.

71The Employer also submitted the instant case can be distinguished from that of Ontario Public Service Union of Ontario (Scott) v. Ontario (MCSCS),¹⁴ relied upon by the Union. As indicated above, in that instance, the two grievances consolidated dealt respectively with alleged discrimination leading to a sick leave and alleged failure to accommodate the grievor in relation to her return to work from that sick leave.

72The Employer submitted those grievances arguably related to one continuous transaction with factual, evidentiary and legal matters in common, unlike the instant case, where each of the three grievances relate to entirely different factual, legal and temporal circumstances.

73The Employer further argued the case of Ontario Public Service Union of Ontario (Pace) v. Ontario (MCSCS),¹⁵ also relied on by the Union, provides little assistance in this matter. While a discharge and a breach of privacy grievance were consolidated on the basis that they arose out of the same facts, from the decision, we are given no indication of what those facts were.

74The Employer maintains hearing the ASMP and the Harassment and Discrimination Grievances with the Dismissal Grievance will unnecessarily lengthen, complicate and obfuscate the primary issue in the Dismissal Grievance, which is whether the Grievor’s conduct in working simultaneously for TSDC and Lakeridge Health and abusing her sick leave benefits, warranted dismissal from employment.

75Accordingly, the Employer submits the Dismissal Grievance before me should be heard on its own.

Deferral of Harassment and Discrimination Grievance

76The Employer further takes the position that the Harassment and Discrimination Grievance should be deferred pending the conclusion of the College’s disciplinary proceeding.

77The Employer points out Section 1 of the Ontario Regulation 799/93: Professional Misconduct under the Nursing Act, S.O. 1991, c. 32, defines acts of professional misconduct for the purpose of clause 51(1)(c) under the Health Professions Procedural Code¹⁶. Subsection 1(25) of the Regulation defines the following as an act of professional misconduct:

25. Failing to report an incident of unsafe practice or unethical conduct of a health care provider to,

i. the employer or other authority responsible for the health care provider, or ii. the College.¹⁷

78The Employer submits it is expected the College will make an assessment under clause 51(1)(c) of the Health Professions Procedural Code¹⁸, as per the Notice of Hearing issued by the College, as to whether the Grievor committed an act of professional misconduct in relation to her medical assessment of the inmate.

79Should the College conclude the Grievor failed to meet professional standards, the Employer submits this would provide additional support for the Nurse Manager/ Employer’s decision to report the matter to the College, and that such reporting did not constitute harassment.

80Further, it would also prevent conflicting findings of fact in the Discrimination and Harassment Grievance as the parties will be able to rely upon the fact findings of the College, which is the expert body, as to whether the professional standards were or were not met by the Grievor. Otherwise, the Employer submits it will likely have to establish in the Discrimination and Harassment Grievance, that the conduct of the Grievor constituted misconduct, as it goes directly to the issue of harassment in respect of the reporting of the incident to the College.

UNION REPLY:

81The Union disputes the Employer’s assertion that the 20-day suspension relating to the Harassment and Discrimination Grievance (2019-5112-0047) was not a factor in the Grievor’s dismissal. It points out the suspension of August 3, 2017 was still on the Grievor’s personnel file when she was dismissed on January 15, 2020, and maintains it is relevant to her dismissal.

82The Union also asserts that differential treatment was a factor in the Grievor’s dismissal despite the absence of that allegation in the Grievance itself. The Union points out that grievances should be liberally construed and decided on the merits of the underlying dispute, not on technicalities.¹⁹

83The Union points out the Supreme Court has noted that numerous arbitrators have adopted this approach, and unjust dismissal grievances can include allegations of discrimination and harassment where none are contained in the grievance form.²⁰

84The Union points out that in Windsor (City) v Windsor Professional Firefighters Association (Elliot Grievance),²¹ Arbitrator Snow found that the broadly-worded grievance of an unjust dismissal, liberally construed, allowed the Union to pursue legal arguments that the employer breached the grievor’s rights under the Human Rights Code. In that case, the grievor’s absenteeism resulted in discipline which ultimately resulted in his dismissal. The Arbitrator held that a Code breach was one way that a dismissal may be unjust, and that the issue of discrimination was inherent in the grievance filed.

85Further, in York Region District School Board v. District 16 OSSTF (Cato Grievance),²² an allegation of racism raised just one week prior to the hearing was included in a grievance for unjust dismissal. The underlying grievance form was also worded broadly. In that decision the arbitrator noted that the employer bears the onus of proof in an unjust dismissal case and the union is not required to list every defence it intends to rely on in the grievance form.²³

86The Union submits that similarly, the fact that the Grievance form in this case did not describe the defence of differential treatment does not preclude the Grievor from raising it. The Union further submits the Employer is not caught off-guard by this defence. It points out that in Elliot and Cato, the arbitrators considered what counsel were aware of prior to the hearing. In this instance, the Union submitted the Employer is aware that the Union’s position is that the Grievor was singled out and subjected to differential treatment in the cases of both her suspension and her dismissal.

87The Union made no submission regarding the deferral of the Discrimination and Harassment Grievance.

ANALYSIS:

88There is no dispute the relief claimed in each of the Grievances does not arise out of the same transaction or occurrence or the same series of transactions or occurrences.

89However, the Union submits the three grievances present a “pattern” of differential treatment and should be heard together on that basis.

90This is similar to the submissions made in Dale et al in that the allegation suggests a pattern of decision-making which singles out the Grievor for disparate treatment. In Dale et al. the Union alleged essentially a pattern of decision-making motivated by animus resulting from the grievor’s union activities. In that instance, Vice Chair Abramsky held:²⁴

Based on the submissions made, it appears that the grievances sought to be added by the Union involve the question of whether the employer’s actions toward Mr. Dale were the result of the grievor’s union activities. The allegation is that they are all “part and parcel” of the same course of conduct. As such, although the grievances allege discreet matters, the issue of the employer’s motive is the same in each case. Thus there is a “question of law or fact” in common, which satisfies the GSB’s rule regarding consolidation.

Given the nature of the allegations, failure to consolidate might well result in much of the same evidence having to be repeated in each case. For this reason as well consolidation is appropriate.

91Accordingly, I am persuaded in this instance that the Grievor’s Harassment and Discrimination and her Dismissal Grievances ought to be heard together, as it is alleged they will demonstrate a “pattern” of disparate treatment. A pattern involves more than one instance, and I find it is appropriate to allow the Union to demonstrate the existence of such a “pattern”.

92Accordingly, I am prepared to hear the Union’s evidence alleging disparate treatment of the Grievor arising from the same or similar factual contexts that form the underpinnings of the Harassment and Discrimination and Dismissal Grievances.

93I point out that this is a much narrower allegation that the broader based allegations I understand form the basis of the yet to be clarified ASMP Grievance. Further, these are allegations regarding which the Employer is aware.

94I take a different view regarding the ASMP Grievance.

95In the first instance, neither party appears to be in a position to confirm that the Grievance had, in fact, been placed in Level 4 of the ASMP. Accordingly, this Grievance does not appear ready to proceed, risking additional delay to the Discharge Grievance if they are to be heard together.

96However, and more importantly, while the Union submits that in all three Grievances it will ask the Arbitrator to make findings of fact as to whether the Employer discriminated against the Grievor and failed to accommodate her disability, the breadth and focus of the inquiries varies significantly.

97On the basis of the parties’ submission, which is all I have before me, the focus of the ASMP Grievance appears to be on the alleged failure to accommodate the Grievor’s disability and her treatment within the ASMP. This is a much broader and arguable different inquiry, rather than one focused on “disparate treatment” in a very specific context – which is the case with the other two Grievances.

98Finally, there is no dispute the ASMP is managed by Staff Services and the Deputy Superintendent Staff Services, and not the Grievor’s Nurse Manager, Mary Dwyer, against whom it is presumed the harassment allegations are made. As a result, the ASMP Grievance will, in all likelihood, involve different witnesses from the Harassment and Discrimination and Dismissal Grievances.

99Accordingly, I find the ASMP Grievance to be a stand-alone Grievance. If heard with the other two, it has the potential to unnecessarily complicate and delay the determination of the Discharge Grievance, which by its nature carries some urgency. At the same time, it is too remotely related to the essential components of those Grievances to be of any assistance in determining either of them.

100In making that determination, I am mindful of the Union’s somewhat novel submission regarding the Dismissal Grievance, that in terms of “mitigation of penalty”, the Grievor's actions were the result of a combination of factors, including the Employer's failure to properly accommodate the Grievor, and arbitrarily refusing to allow her to switch shifts so that she could maintain a manageable schedule.

101However, this does not change my view that it is not necessary or appropriate to hear the Grievor’s entire ASMP Grievance, as again, it is much broader than what I understand the mitigation argument to be in the instance of the Dismissal Grievance.

102Rather, I am prepared to hear the Union’s much narrower evidence regarding the specific elements of the Employer’s alleged failure to properly accommodate the Grievor, and allow her to switch shifts, which the Union alleges were factors in any resulting misconduct by the Grievor.

103Finally, in making the determination that the Harassment and Discrimination and Dismissal Grievances ought to be heard together, I also make the determination that little would be gained by deferring the Harassment and Discrimination Grievance until the College has made a determination regarding whether the Grievor engaged in misconduct.

104That is a somewhat different issue from that which I must decide, which is whether, in the context of all the facts known at the time, did the Employer discriminate against or harass the Grievor in taking the steps it did.

DETERMINATION:

105Grievance 2019-2628 (Dismissal Grievance) and Grievance 2019-5112-0047 (Harassment and Discrimination) will be heard together.

106Grievance 2019-5112-0046 (ASMP Grievance) will proceed as a stand-alone Grievance at this time.

Footnotes

1. 1Decision and reasons of the Discipline Committee of the College of Nurses of Ontario dated March 7, 2018, CNO online.
2. 2Ontario Public Service Employees Union (Frater) v Ontario (Solicitor General), 2020 CanLII 14813 (ON GSB) at ¶¶12–14 (Johnston).
3. 3Ontario Public Service Employees Union v Ontario (Ministry of Health and Long-Term Care), 2001 CanLII 25802 (ON GSB) at ¶11 (Abramsky).
4. 42014 CanLII 64819 (ON GSB) (Misra).
5. 52004 CanLII 55383 (ON GSB) (Mikus).
6. 62005 CanLII 54836 (ON GSB) (Mikus).
7. 72013 CanLII 56967 (ON GSB) at ¶18 (Harris), quoting Re CAW-Canada and Dresser Canada Inc. [1987] OLRB Rep. October 1234 (Surdykowski).
8. 8Ontario Public Service Employees Union (Kennett) v Ontario (Ministry of Community Safety and Correctional Services), 2015 CANLII 64819 (Mikus), at ¶14
9. 9Ibid para at ¶13
10. 102013 CANLII 56937 (Harris), at ¶ 17 and 22
11. 11ibid, at ¶ 7, 15, 16 and 23
12. 12The employer conceded the second grievor’s third grievance, dealing with overtime and predating the assault by two years, should not be consolidated
13. 13[2006] O.G.S.B.A. No. 100 (QL)
14. 14supra
15. 15supra
16. 16Health Professions Procedural Code is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18
17. 17Also discussed in: College of Nurses, Reference Document, Professional Conduct/Professional Misconduct
18. 18Schedule 2, Regulated Health Professions Act, 1991, S.O. 1991, c. 18
19. 19Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, 1975 CanLII 707 (ON CA), p. 8.
20. 20Parry Sound (District) Social Services Administration Board v OPSEU, Local 324, 2003 SCC 42 at ¶, 68-69.
21. 212012 CarswellOnt 14245, 2012 CanLII 69051 (ON LA) (Snow) at ¶¶151-158, and see ¶8: “The grievance identified the nature of the grievance as "dismissal", alleged a violation of the Management Rights Article and "any other relevant" article, and sought a return to work.”
22. 222005 CarswellOnt 8425, 2005 CanLII 42477 (ON LA) (Knopf).
23. 23Ibid at ¶28.
24. 24Ontario Public Service Employees Union (Dale et al) v Ontario (Ministry of Health and Long-Term Care), supra at ¶ 11.