Ontario Public Service Employees Union (Farrell) v. The Crown in Right of Ontario (Ministry of Environment Conservation and Parks), 2022 CanLII 124198

GSB# 2020-2263; 2020-2264; 2021-3246

UNION# 2019-0211-0014; 2020-0211-0010; 2022-0211-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Farrell)

Union

• and -

The Crown in Right of Ontario (Ministry of Environment Conservation and Parks)

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Alex Andrews Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 2, 2022

Preliminary Decision

1There are three grievances before me two of which have been consolidated whereas the third stands alone. In this preliminary matter, the Employer has brought a Motion to strike numerous provisions set out in the Union’s particulars relevant to the each of three grievances. In addition to the Motion to strike those provisions, the Employer contends that the substance of the first grievance is such that it should be dismissed. It is the Employer’s position that it essentially challenges a personal development plan issued by the Grievor’s Acting Supervisor, a matter which is beyond the jurisdiction of an arbitrator before this Grievance Settlement Board.

2Below, I will deal with the Motions with respect to each grievance chronologically. However, by way of brief background, the Grievor is a senior Environment Officer with the Ministry of Environment, Conservation and Parks and had been employed by that Ministry since January 19, 1999. She was based in the Ministry’s Niagara District Office situate in St. Catharines, Ontario.

The Personal Development Plan Grievance Dated July 24, 2019 – GSB No. 2020-2263

This grievance essentially asserts that the Grievor’s performance for the period April 1, 2018 to March 31, 2019 was arbitrarily appraised by an individual who was in an acting position only as District Supervisor. The Grievor, Ms. Barbara Farrell, seeks to have the Personal Development Plan (PDP) revised to something more favourable.

The statement of grievance itself reads as follows:

I grieve that the Employer has violated Article 2 of the Collective Agreement and all other applicable articles, legislation, regulation and policy by arbitrarily appraising my performance contrary to governing principles and standards. I grieve that Brad Farnand is in an acting position as District Supervisor and lacks the authority to conduct a performance appraisal. I further grieve that the Employer has used questionable statistics and performance measures for specific purpose of marginalizing my performance.

3In addition to the foregoing, the Union prepared a letter dated January 4, 2022 with particulars regarding the first two grievances. Those regarding the PDP Grievance were set out in the first eleven paragraphs. While the grievance itself and discussions between the parties reiterate the Grievor’s concern that the PDP was prepared by her Acting Supervisor, otherwise a co-worker of the Grievor, that concern is not reiterated or pursued in those particulars. Presumably the Union’s author of those particulars recognized that an Acting Supervisor was nonetheless a member of management with responsibility and authority to do a PDP of employees within the bargaining unit such as the Grievor. In any event, I am satisfied that the Statement of Grievance with respect to that issue would not have succeeded had it been pursued or itemized in the particulars.

4Notwithstanding that omission, in addition to the complaint that the PDP itself was unfair, the particulars raise a secondary issue regarding the appointment of yet another Acting Supervisor at or about the time the Grievor’s PDP was being prepared. The particulars suggest that the unfair PDP somehow might have interfered with that opportunity for the Acting Supervisor position which might otherwise have been available to the Grievor.

5Furthermore, although I noted earlier that the Union’s particulars did not identify the Grievor’s concern that her Acting Supervisor did not have the authority to conduct a PDP, the particulars included the following paragraph:

Mr. Farnand is a union peer and an officer out of the Ministry’s Hamilton District, working in an Acting Supervisor position. It is the grievor’s position that the harassment is self serving as they could possibly be in a competition for future promotional jobs, such as supervisor.

On behalf of the Employer, Mr. Joohyung Lee in his Motion submitted that:

1. Fundamentally, the grievance as written related to a PDP only;
2. A PDP is not a disciplinary act of management and therefore is not the proper subject of a grievance;
3. An arbitrator has no jurisdiction to interfere with the selection or appointment of persons be they co-workers or otherwise to management positions outside the scope of the bargaining unit or collective agreement.

6In the circumstances it was the Employer’s position that the grievance itself should be dismissed together with the additional particulars which in part constitute an expansion of the grievance as originally framed.

7In particular, Mr. Joohyung Lee took exception to the Union’s attempt to expand the scope of the grievance by claiming that the appointment of the new Acting Supervisor was an attempt to expand the nature of the grievance to one involving a Human Rights violation in that the particulars state:

That the Employer demonstrated a gender bias in their selection process by promoting a male, non-officer from another branch, over the Grievor”.

8In support of those submissions, amongst others, Employer counsel relied on the following decisions:

1. Re OPSEU and (Ontario (Ministry of Government and Consumer Services) (Boudarga), 2019 CarswellOnt 16161, 141 C.L.A.S. 202 (Brian McLean);
2. Re Ontario (Ministry of Children and Youth Services) and OPSEU (Rafo), 2013 CarswellOnt 2975, [2013] O.G.S.B.A. No. 40, 114 C.L.A.S. 54 (Nimal Dissanayake);
3. Re Ontario (Ministry of Transportation) and OPSEU (Ahmed), GSB #2013-2757, August 26, 2014 (Marilyn A. Nairn);
4. Re Ontario (Ministry of the Solicitor General) and OPSEU (Schnoflak), GSB #2017-3409, November 19, 2019 (Ken Petryshen);
5. Re Ontario (Ministry of Transportation) and OPSEU (Fernandes), GSB #2002-1551, January 2, 2004 (Nimal Dissanayake).

9Mr. Andrews on behalf of the Union argued that the grievance ought not to be dismissed nor the particulars since these are part of the narrative setting out the basis or foundation for the continued harassment and discrimination suffered by the Grievor and identified in the second grievance.

10I have considered the grievance document, the particulars provided by the Union and the submissions of the Parties and I am satisfied that the Employer’s Motion with respect to this first grievance referred to as the PDP Grievance should be upheld in all respects and the grievance itself dismissed for the reasons which follow:

1. The grievance as originally framed was fundamentally a complaint that the Grievor’s Personal Development Plan (PDP) having been prepared by the Grievor’s then Acting Supervisor was unfair and should be “vacated” and replaced with “a performance evaluation that is fair, reasonable and consistent with provincial standards”.

11That position on its face is a complaint about the fairness of the Grievor’s PDP. However, this Grievance Settlement Board in earlier cases has found that such evaluations are not subject to review by the Board for fairness. Indeed, unless the evaluation constitutes a matter of discipline on the employee’s record it is not a matter concerning which an arbitrator assumes jurisdiction to set aside a document and/or refer it back to the parties for revision. In the Fernandes case decided by Vice Chair Dissanayake (supra) an almost identical issue arose. In that case the arbitrator commented as follows:

No doubt the grievor is not happy with the contents of the performance appraisal. However, that does not make the appraisal disciplinary. There is no suggestion that the grievor has suffered any sanction or penalty as a result of the contents in the appraisal. The employer is entitled to give guidance to an employee on performance issues without engaging in disciplinary action. Every such action by the employer is not subject to review by the Board for fairness. An appraisal will only be disciplinary, if it is used to build up a record against the employee. The employer has clearly taken the position here that the appraisal is not disciplinary. The employer is bound by that. Once the employer takes such a position, the grievor has the assurance that the appraisal will not, and cannot be used as a disciplinary record in the future. In other words, once the employer clearly states that the appraisal is not disciplinary, then it is not disciplinary. (See Re Bacchus, 911/88 (Watters).

12In the matter before me there was no suggestion by the Union that the PDP was in fact disciplinary. Further, although there were suggestions that the document might interfere with the Grievor’s future prospects for promotion, that submission was speculative only. As such it could not be relied upon to characterize the evaluation as a disciplinary matter. In the circumstances, it is my view and I find that the evaluation itself was a legitimate exercise of management rights, was not disciplinary in nature and although perceived by the Grievor as unfair, is not subject to review at arbitration.

2. With respect to the suggestion that an Acting Supervisor did not have the authority to appraise the Grievor’s performance. As noted earlier, I reject that assertion. The individual was appointed to perform management functions which include the preparation of PDP for bargaining unit employees. Further, it is only speculation again that his appraisal of the Grievor was biased so as to prejudice her in future management opportunities when both may be applicants.

3. With respect to the particulars alleging gender bias relating to the promotion of a male from a different district to an Acting Supervisory position, the particulars are not supported and are struck for the following reason:

13They represent an unwarranted expansion of the grievance in that two new issues are identified that being the promotion of someone other than the Grievor to an Acting Supervisory role and secondly the suggestion that the promotion to the Grievor’s detriment was gender biased.

(a)(i) With respect to the promotion of another to Acting Supervisor, promotions to managerial positions such as Acting Supervisor are beyond the scope of the OPSEU agreement here. In the Schnoflak decision of arbitrator Petryshen (supra) one of the issues identified in paragraph 3 of the decision was that the grievor “was denied the Acting Sergeant position because of a failure by the employer to accommodate him, with the result that the employer discriminated against him on the basis of his disability.” In his decision Arbitrator Petryshen in paragraph 6 referred to several cases relied upon by the employer including the decision of Vice Chair Nairn in the Ahmed matter:

In OPSEU (Ahmed), the grievor was screened out of a competition for an Engineer position in PEGO bargaining unit. The grievor claimed his treatment by the employer was based on his age and race. Vice-Chair Nairn upheld the Employer’s preliminary objection by finding that she did not have the jurisdiction to entertain the grievance. She found that the real issue behind the grievance related to the proper administration of the PEGO collective agreement and was beyond the scope of the OPSEU collective agreement.

14Arbitrator Petryshen went on to distinguish several cases submitted and relied upon by the Union but went on to find in favour of the employer’s Motion at paragraph 9 of his decision for the following reasons:

As set out in article 22.1 of the OPSEU Agreement, my jurisdiction is limited to”…any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.” There is no provision in the OPSEU Agreement which gives an employee covered by that Agreement a right to apply for a management position. The complaint about discriminatory treatment in this instance is not in relation to a matter covered by the OPSEU Agreement and I do not have a general jurisdiction to deal with allegations of discrimination in employment that are beyond the scope of the OPSEU Agreement.

15The case before me as that before arbitrator Petryshen claims in part discrimination based upon grounds which were allegedly discriminatory. Notwithstanding those allegations, Arbitrator Petryshen was satisfied that he had no jurisdiction to deal with the assignment to a position outside the bargaining unit. In his case it was to an Acting Sergeant position whereas in that before me the position is that of Acting Supervisor. In any event the position before me is similar in that the Acting Supervisory job is a managerial position beyond the scope of the OPSEU Agreement. Accordingly, I have no jurisdiction to address the Grievor’s complaint in that regard.

(a)(ii) Additionally, the assignment in question was not the subject of discussion between the Parties nor was it identified in the grievance as written. It was therefore an unwarranted expansion of the grievance.

(a)(iii) It was also an unwarranted expansion of the grievance in as much as it framed the issue or attempted to frame the issue as a violation of the Human Rights Code on the basis of gender discrimination. That had never been part of the discussions or the grievance in the first instance. An expansion or introduction of a new issue of that nature was disallowed by Arbitrator Dissanayake in the Rafol case before the Grievance Settlement Board (supra). In paragraph 18 of his decision Arbitrator Dissanayake found as follows:

In the present case, the human rights issues belatedly raised by the union are very discreet and different than the issue originally grieved and discussed between the parties. The remedy in the original grievance was the approval of a paid leave of absence. Pursuant to its human rights allegations, the remedy may involve human rights damages. The human rights issues were not subject any discussion between the parties. They were raised for the first time just prior to the scheduled arbitration.

16Consistent with that decision it is my view that those particulars relevant to the alleged improper promotion together with the allegation of violation of Human Rights Code constitute an improper expansion of the grievance and are also struck.

17Having reviewed the various elements of the grievance and particulars in support, I am satisfied that the Employer’s Motion to dismiss the grievance together with particulars succeeds. More precisely or clearly that the PDP Grievance is dismissed in its entirety including all supporting particulars.

The Harassment Grievance

This brings me to a consideration of the second grievance being GSB #2020-2264 and which the Parties have referred to as the Harassment Grievance. The grievance was filed April 6, 2020.

18The Statement of Grievance centres upon an alleged pattern of harassment, bullying and discrimination in violation of the Collective Agreement, the Occupational Health and Safety Act and the Ontario Human Rights Code by two management officials over an extended period. The Grievor complains that she was subjected to a poisoned work environment which the Employer failed to remedy. The grievance itself is lacking in particular with respect to the alleged pattern of unacceptable conduct. However it does go on to request a reassignment of the Grievor’s reporting duties to persons other than those two officials as well as financial compensation for her losses and damages.

19The Union in its letter of January 4, 2022 provided particulars with respect to this grievance. Those are set out in paragraphs numbered from 12 to 34 together with remedial requests identified in paragraphs 35 and 36.

20Mr. Lee for the Employer challenged paragraphs 13 and 14 which reflect back to a grievance settlement entered into in 2014. The Union agreed to strike those two paragraphs from the particulars.

21In addition to those paragraphs the Union agreed to strike paragraphs 30 to 34 inclusive which related to a WSIB claim which was before that tribunal on appeal.

22Of the remaining particulars the Employer moved to strike the following paragraphs:

Medical Accommodation

Paragraphs 19 to 29

23Aside from paragraphs 13 and 14, paragraphs 12 through 18 of the Particulars provided details of the nature of the conduct or events beginning as early as of May 2018 up to and including April 6, 2020 when the grievance was filed and up to and including the denial of the grievance on July 6, 2020 by the Employer. Paragraphs 12 to 18 were not challenged by the Employer.

24Paragraphs 19 to 23 which are challenged by the Employer relate to absences by the Grievor in the month preceding the filing of the grievance and include reference to the Grievor being placed on a paid leave of absence commencing April 1, shortly before she filed her grievance. The remaining paragraphs that is 23 to 29 outline the Grievor’s return to the work place with accommodations based on restrictions and limitations. Those restrictions and limitations and the need for accommodation according to medical reports provided by the Grievor’s treating physician were triggered in large measure by the alleged harassment within the workplace. That medical report was dated September 8, 2020 and is referred to in paragraph 25 of the Union particulars.

25Paragraphs 26 to 27 relate to a request by the Employer on July 8, 2021 for an updated medical with respect to the Grievor’s status, limitations and restrictions. Paragraphs 27 identifies the nature of the physician’s response to that request and includes reference to the limitation on the Grievor’s contact with the two management officials who were the subject of the harassment allegations.

26In the circumstances, given the breadth of the grievance as filed on April 6, 2020 including the time off work allegedly suffered by the Grievor as a result of the harassment together with consequential accommodations of her needs, it is my view that the grievance is broad enough and anticipates not only the losses suffered financially up to the filing of the grievance but also the accommodation sought in the grievance which may also include the nature and adequacy of the accommodation during the ensuing period. Accordingly, I am not persuaded that paragraph 19 through to 27 constitute an expansion of the grievance filed on April 6, 2020.

27On the other hand, paragraphs 28 and 29 deal with a request by the Employer for an independent medical examination of the Grievor. It is my view that those paragraphs raise an entirely new issue and are not the proper subject of the April 6, 2020 harassment grievance. Accordingly, those two paragraphs themselves do constitute an expansion of that grievance and are duly struck from the Union’s particulars. I should note that this result will not eliminate the Grievor’s opportunity to challenge the requirement that she submit to an independent medical examination since the third grievance relates specifically to that matter and will be dealt with further hereunder. In summary, in respect to the harassment grievance I confirm the following:

Paragraphs 13 and 14 have been withdrawn by the Union.

Paragraphs 28 and 29 are struck from the particulars.

Paragraphs 30 to 34 have been withdrawn by the Union from the particulars.

The IME Grievance

The final grievance which has not been consolidated with the former two is referred to by the parties as the IME Grievance which was dated February 17, 2022 and now bears the Grievance Settlement Board No. 2021-3246.

28Only two of the fifteen paragraphs outlined in the particulars of this matter by the Union are challenged by the Employer. That is paragraphs 3 and 5.

29Regarding paragraph 3 itself, it refers back to the settlement of 2014 which was withdrawn by the Union in the harassment grievance. The Union has also withdrawn that reference as a particular in this IME Grievance.

30Paragraph 5 reiterates the very same substance and allegations as were identified in the PDP Grievance itself. The Employer reiterated the same concerns regarding this paragraph 5 as it had with respect to the PDP Grievance itself. Mr. Andrews reiterated his request that paragraph 5 remain as part of the narrative or background to the Grievor’s concerns.

31For those reasons that I excluded or rather dismissed the PDP Grievance itself, I find that paragraph 5 is an inappropriate particular relating to the legitimate exercise of management rights which are beyond the scope of review at arbitration.

32In summary with respect to the IME Grievance paragraphs 3 and 5 of the particulars are hereby struck.

33The foregoing constitutes my decision and order with respect to these preliminary Motions of the Employer. I remain seized to deal with all other aspects of these three matters.