GSB# 2020-2003; 2020-2004

UNION# 2020-0310-0042; 2020-0310-0043

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Yousif et al)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Avril Dymond and Alex Andrews Ontario Public Service Employees Union Grievance Officers

FOR THE EMPLOYER

Maria-Kristina Ascenzi Treasury Board Secretariat Legal Services Branch Counsel

HEARING

September 7, 2021

DECISION

1Two grievances filed respectively by Ms. Shamaran Yousif and Ms. Brenda Breen came before me pursuant to article 22.16 of the collective agreement. Both grievances are dated October 20, 2020 and the statements of grievance identically worded as follows: “I grieve that the employer has failed to provide a workplace free from workplace harassment and bullying as per article 3.3, as well as any other applicable articles of the collective agreement, and as per the Ontario Health and Safety Act”.

2This decision deals with a motion by the employer that the grievances be dismissed on the ground that the particulars relied on by the union fail to disclose a prima facie case to support a finding of any violation of the collective agreement or the Ontario Health and Safety Act.

3While the grievances refer to the Ontario Health and Safety Act, during submissions there was no assertion of breach of any provision of that Act. The union’s submission was that article 3.3 was violated. That article reads:

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.

4The grievors in essence allege that they were harassed and/or bullied by Mr. David Madeiros, Manager of Court Operations at the Newmarket Courthouse. The particulars by the union make the following specific allegations:

Allegation 1

• In or around early April 2020, the Employer reorganized its administrative office space to improve social distancing. One person to be moved to the back of the room, and Ms. Yousif was the only person to volunteer.
• Ms. Yousif was placed at a desk in the back of the office without email access.
• Nonetheless, Ms. Yousif understood that she was still expected by the Employer to check her work email regularly, so she briefly sat at the desk to which she was ordinarily assigned and checked her email while there were few people in the office. She was also on two employer union committees and was expecting correspondence from one of them. Her mask was on.
• Mr. Madeiros entered the administrative area, and bellowed angrily from across the room, “Why are you there? That’s not your desk!”
• Ms. Yousif explained that she no email access on the computer at her newly assigned desk, and Mr. Madeiros, unmoved, told her sternly, “Go back to your desk.”
• This interaction took place in front of co-workers including Kathleen Dragonac, and Ms. Yousif was deeply embarrassed by it.

Allegation 2

• In or around July 2020, Ms. Yousif was assisting a colleague, Reza Azizi with filing. This sometimes required that the pair of them come within 6 feet of each other.
• Mr. Madeiros approached Ms. Yousif and Mr. Azizi, and mocked them “What? Are you two getting married?”, suggesting that they were so close to each other that it was intimate.
• Ms. Yousif was extremely alarmed by these comments. She is married, as is Mr. Azizi, and she believed that comments of this nature could lead to devastating rumours in the workplace. She was deeply offended by the insinuation that she may be behaving inappropriately or that she may be unfaithful to her spouse.
• There were witnesses to this interaction as well including Ms. Dragonac and Laurie Neil.

Allegation 3

• On or about 1 October 2021, the Grievor was alone in the filing room. She had been wearing her mask for some time, and as no one was present, she took it off her ear for a short breather with the intention of replacing it after a couple of seconds.
• While she was taking this breather, Mr. Madeiros walked by Ms. Yousif and said, “Where’s your mask?”, though it was obvious where her mask was. Mr. Madeiros sternly told her “Put it on”, directing her to replace her mask. Ms. Yousif did so, but did not have a chance to explain herself before Mr. Madeiros went on his way.
• Later that day, Ms. Yousif received an email from Mr. Madeiros, cc’d to her Supervisor Eleni Makos. The email contained a form the Grievor and Union had never been advised of and which looked something like a reprimand but described itself as a notice. The notice indicated that she had not been wearing a mask at all. Ms. Yousif disputed this characterization of events.
• Ms. Yousif arranged to see Mr. Madeiros the following day, and brought Brenda Breen as her Union Representative. They scheduled it for 10:00am the following day.
• The following day, Ms. Yousif and Ms. Breen arrived on time, but Mr. Madeiros did not arrive until almost 11:00am.
• From the outset of the meeting, Mr. Madeiros was rude and dismissive. As he sat down to his desk, he did so by dropping his full weight into his chair in a sullen manner. Ms. Yousif requested that the door be closed, so they have some privacy, but Mr. Madeiros merely sat glaring at her. Ms. Yousif then closed the door even though Mr. Madeiros was closer to it.
• Ms. Yousif told Mr. Madeiros that she disagreed with the form Mr. Madeiros had sent out and suggested that another category should be added. She advised him that she had experienced losses because of the pandemic, and took the masking mandate seriously. She explained that she felt the notice was not accurate and suggested that it be made accurate with an “Other” category.
• Mr. Madeiros continued to glare, but did not seem to engage with Ms. Yousif’s words at all.
• They then had the following exchange:

YOUSIF: Why are you so angry? MADEIROS: I’M NOT ANGRY! BREEN: You do sound angry. YOUSIF: I was hoping to sort things out civilly. MADEIROS: I have work to do. This meeting is over! BREEN: I have a question—when management changes the marking on the floor could they please send an email to everyone so we will not break the rules? MADEIROS (angrily): Can’t you read?! BREEN: Why are you so angry? Please do not talk to me like that. MADEIROS (yelling): I said this meeting was over!

• Mr. Madeiros then stormed out.
• Ms. Yousif was deeply upset and disgusted by this exchange. The following day she was almost in tears. The symptoms of her anxiety flared, and she went home, and did not return for approximately three months. During those months, she was unable to attend to ordinary household tasks like cooking, cleaning, or childcare.
• Ms. Breen was also upset by the exchange and contributed to the extreme level of stress she experienced in the workplace.

5In Re Cross et al, GSB 2013-1029 (Misra), the Board reviewed this Board’s jurisprudence at paragraphs 32-37:

[32] The Employer asserts that some of the Union’s pleadings fail to disclose a prima facie case for breach of the collective agreement or of applicable legislation, with a particular focus on the lack of particulars regarding gender discrimination. OPSEU (Couture et al) and Ministry of Government Services, 2011 CanLII 100922 (ON GSB) (Dissanayake) is an oft-quoted decision in which the Board addressed a prima facie case motion and stated as follows: “In each case where a prima facie motion is made, the Board is required to determine whether the facts asserted, if accepted as true, are capable of substantiating the violation alleged.”

[33] In OPSEU (Bonneveld) and Ministry of Community Safety and Correctional Services, 2013 CanLII 88094 (ON GSB) (Briggs), the Board considered an employer motion that the union’s particulars of a grievance claiming that an individual had been discriminated against on the basis of his age did not make out a prima facie case of violation of the collective agreement. The Board’s jurisprudence with respect to “no prima facie case” motions was outlined as follows: “The Board’s jurisprudence stands for the proposition that in order for a no prima facie case motion to succeed, the asserted facts – which are assumed to be true – do not establish the necessary elements to substantiate the alleged violation of the collective agreement.”

[34] Where there is an allegation of discrimination, as there is here, for the Union to establish a prima facie case of discrimination, its pleadings must demonstrate that a grievor is a member of a group protected by the Code; that she was subjected to adverse treatment; and that her gender, race, ancestry or colour was a factor in the alleged adverse treatment (OPSEU (Morgan) and Ministry of Children and Youth Services, 2014 CanLII 30274 (ON GSB) (Tims) at para. 29; Bonneveld, cited above, at para. 44)

[35] In OPSEU (Wong) and Ministry of Government Services, 2012 CanLII 24021 (ON GSB) (Dissanayake), the Board addressed a prima facie case motion in a grievance alleging discrimination on the basis of prohibited grounds, and harassment due to the grievor’s union activity. At para. 17 of the decision the Vice Chair noted that taken at their highest, some of the grievor’s pleadings might indicate that in some instances the employer may not have utilized the best management practices. However, he found that the allegations fell far short of establishing “bad faith” as it was commonly understood, or as defined in legal authorities.

[36] Regarding the allegations of differential treatment and that the employer had acted in bad faith against the grievor in the Wong case, the Vice Chair noted (at para. 18) that in order to infer bad faith, there must at least be some evidence that similarly situated individuals were treated differently. The employer’s motion was granted in that instance as the Board (at para. 19) was of the view that mere allegations of bad faith, and sincere but subjective beliefs that one’s allegations are well founded, no matter how strongly held, would be insufficient. There must be some objective facts that could reasonably lead to a finding of a breach of a collective agreement.

[37] It is important in considering a party’s particulars in the context of a prima facie case motion that only particularized facts must be accepted as true: claims or conclusions that may form part of a party’s particulars are not transformed into facts simply because the party has so asserted (OPSEU (Seguin et al) and Ontario Science Centre, 2012 CanLII 6203(ON GSB) (Briggs)).

6With regard what may be found to be harassment and abuse, arbitrator Misra in Red Cross set out the definitions of “harassment” in sections 5(2) and 10 of the Ontario Human Rights Code and 25(2) of the Occupational Health and Safety Act, and at paragraphs 44 to 46, reviewed the arbitral jurisprudences as follows:

[44] In Toronto Transit Commission and Amalgamated Transit Union, 2004 CanLII 55086 (ON LA), 2004 Carswell Ont 5165 (Shime), the arbitrator defined abuse and harassment as follows: Para 243. Abusive conduct includes physical or mental maltreatment and the improper use of power. It also includes a departure from reasonable conduct. Para 244. Harassment includes words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment.

[45] Addressing the distinction that must be drawn between what may be characterized by an employee as harassment, and by an employer as management, Arbitrator Larson in UFCW Local 1518 v 55369 BC Ltd., 2007 CarswellBC 3880 (D.L. Larson), noted as follows: Para 32. Harassment by supervisors is particularly difficult, partly because it involves issues of the mistreatment of employees entrusted to their care but also because there is often a fine line between an aggressive management style and abuse. Context is important. In some workplaces vulgar and insulting language may be unremarkable but in other cases a mere statement may be discriminatory. …

[46] The arbitrator in that case noted that harassment normally involves an element of persistent conduct or a course of activities that involves hostility, importuning, badgering, intimidation or bullying that causes a person distress that is inimical to a safe and positive work environment (para. 31). The exercise of normal management rights does not excuse harassment, and giving directions, evaluating performance, and disciplining employees should not be considered harassment in the normal course of events provided that such activities are not carried out in a manner that is abusive, demeaning, or hostile, and has a legitimate workplace purpose (para. 33). Not every “employment bruise” should be treated as harassment, and Arbitrator Larson noted that it would be unfortunate if a harassment process was “used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred” (para. 34).

7For purposes of this motion the Board accepts the allegations as true, as it is required to do. The Board wishes to make it very clear that it does not approve the type of conduct attributed to Mr. Madeiros in the particulars. Such conduct, if true, is not only hurtful and disrespectful to employees, that style of management does not promote good-will and cooperation between employees and the employer, which is essential for good labour relations and peace in the workplace. To the contrary it is a recipe for conflict.

8Having said that however, considering the union’s particulars, the arbitral jurisprudence, and the submissions of the parties, I am convinced that the allegations made against Mr. Madeiros, while inappropriate, taken individually or together as a pattern fall well short of harassment as defined in article 3.3 or sections 1 and 25(2) of the Occupational Health and Safety Act.

9Therefore, the employer’s motion succeeds, and the grievances are hereby dismissed.