Ontario Public Service Employees Union (Correia) v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services), 2023 CanLII 17148

GSB# 2021-1076

UNION# 2021-0310-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Correia)

Union

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Andrew Mindszenthy Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 26, 2022, August 11, 2022 and January 30, 2023

Decision

1The Grievor, Ciji Correia, claims that she was the victim of harassment when, on August 12, 2021, Tyler Barclay, a Manager, made remarks to her which, in context, she considered demeaning. She seeks a declaration that his remarks and the manner in which he made them were “harassment” and violated the Collective Agreement and relevant legislation.

2The Parties here have asked that I issue a “bottom-line” decision without reasons as provided for in Article 22.16 of the Collective Agreement. Such decisions are designed to resolve the current grievance only and are issued, as is this decision, without precedential value.

3There was significant viva voce testimony with conflicting versions from the two as to exactly what was said. Accordingly, I believe that the matter warrants at least some modest comment as to the reason(s) for my findings which follow:

i). The manager’s remarks and the manner in which he delivered those remarks did not rise to the level of “harassment” as characterized in arbitral jurisprudence.

ii). At worst, the situation may be characterized as a work-related disagreement during which the manager became frustrated and took issue with the Grievor’s persistence in challenging as unclear a newly introduced COVID screening document that all persons, including her at that moment, were required to complete prior to entering the facility. As a union H&S representative her concerns may have been appropriate for later discussion, but, at that moment, the manager was simply trying to clear her for work as an employee. In the circumstances, he over-reacted and sarcastically suggested that the Grievor ought to be able to read and understand the document like other employees, but that he would take her through it himself given her view that it was unclear and that she herself did not understand it. Clearly, the remarks were not meant literally.

iii). Nonetheless, I am of the view that the Manager’s remarks were inappropriate and sarcastic. Further, I am of the view that sarcasm when directed at another is almost always hurtful and demeaning. So it was in this case.

iv). However, I am not satisfied that as a single “one off” exchange, the Manager’s remarks rose to the level of “harassment” as characterized in arbitral jurisprudence. (see for example: Toronto (City) and CUPE Local 79 (Fuller), 2017 CarswellOnt 18600, 133C.L.A.S. 218 (Goodfellow)).

v). In the circumstances I conclude:

a) that the Manager’s remarks were not “harassment”;

b) that the requested declaration will not be issued;

c) that the Grievance is dismissed.