GSB# 2021-0925; 2021-0926; 2021-1052

UNION# 2021-0375-0013; 2021-0375-0014;

2021-0375-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hansen et al)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Sarah Khan Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Michael MacLellan Crawford Chondon & Partners LLP Counsel

HEARING

January 29, 2024

Decision

1Before me today is a Motion by the Employer to strike several elements of the particulars provided by the Union in relationship to the grievances of three individual employees of the Liquor Control Board of Ontario (LCBO). On behalf of the Ontario Public Service Employees Union (OPSEU) Ms. Sarah Khan challenged the deletion of those provisions.

2Although there are three grievances still in issue, the Parties agreed to reserve their rights with respect to the Grievance of Judith Svensson to a later time.

3Briefly, Mr. Michael MacLellan, counsel for the LCBO, challenged several elements of those particulars provided by the Union with respect to the Grievor Michael Hansen and the Grievor Tamara Schlosser for one or each of the following reasons:

1. The original Ten (10) day suspension imposed upon the Grievors was rescinded and they were repaid in full for their losses during the time of that suspension;

2. The remedy requested with respect to each of the Grievors was in some measure an expansion of the original grievance as framed;

3. The remedy requested was too remote and was beyond that reasonably flowing from the grievances as originally framed;

4. In some cases, the particular identified by the Union was lacking in detail such that it constituted a bare allegation and was insufficient to call for a reply.

The Background

4The Employer received information that employees in its Store 106, Huntsville, had engaged in inappropriate conduct some of which might have been racially motivated. In the circumstances, it engaged a third party investigator to inquire into the issues and report its findings. On the basis of those findings, the Employer suspended each of four employees for periods of ten (10) days or more as well as taking corrective measures with respect to the Manager of that Store.

5The Report, aside from specific concerns about the conduct of individual employees, determined that the workplace culture in the Store was such that “management needs to establish concrete mechanisms to address the workplace issues, concerns, and problems in the Store ranging from workplace discrimination and harassment, favouritism, lack of transparency and inequitable treatment of employees”. Further, “management must eradicate the workplace dynamics leading to a poisonous (toxic) workplace culture in the Store”. Underlying that report was a finding that there existed “a workplace in which a clique of female employees….run the store or dictates the culture of the store”.

6In order to address that “toxic” culture in Store 106, in addition to the suspensions, the Employer transferred each of the Grievors to alternative stores in neighbouring municipalities.

7On or about June 24, 2021 each of the Grievors received a letter of discipline which included the suspension without pay and notice of their respective transfers following which they were required to engage in training with respect to the Employer’s Respectful Workplace Policy. In response each of the four Grievors filed grievances on June 29, 2021 in similar terms and requesting a similar remedy as follows:

Statement of Grievance

The employer is in violation of the Collective Agreement under Articles 1.1, 27.4, and all other applicable articles and legislation. The employer has wrongfully suspended and transferred me which will cause me undue hardship which includes financial hardship. I believe the discipline is discriminatory in nature.

Settlement desired is:

Full redress and to be made whole in all respects. To remain in my current store and to be awarded any monetary losses due to suspension and the transfer, and any other remedy deemed appropriate by the Arbitrator.

8Of the four grievances:

1. One was settled during a subsequent mediation process;

2. That of the Grievor, Judith Svensson, remains unresolved. However, as noted earlier the Parties have agreed to reserve their rights respecting her particulars to a later time;

3. With respect to each of Michael Hansen and Tamara Schlosser the Employer unilaterally chose to eliminate their suspensions completely and to reimburse them for their losses from the ten (10) days of suspension. In place of that discipline the Employer added a letter of counsel with respect to its expectations regarding the LCBO’s Respectful Workplace Policy. The Letter of Counsel addressed to each of Ms. Schlosser and Mr. Hansen was general in nature and read as follows:

The purpose of this letter is to confirm and clarify our expectations of acceptable conduct in the workplace. It is expected that all employees treat each other with dignity and respect.

All employees are prohibited from engaging in discrimination, harassment and sexual harassment within the LCBO. It is our expectation that all employees remain familiar with and comply with all aspects of the LCBO’s Respectful Workplace Policy (HR-0129)

9At that time none of the Grievors were returned to Store 106 from which they had been transferred.

10It was and remains the Employer’s position that the transfers were an administrative decision relating to the toxic culture in that Store. The Union, as might be expected, takes the opposite position contending that the transfers were also disciplinary and wrongly imposed as were the suspensions all of which it contends were done in bad faith and/or arbitrarily.

11In addressing his challenges to the Union’s particulars, Mr. MacLellan referred to the particulars relating to each of the two Grievors, Tamara Schlosser and Michael Hansen, separately as well as to the numbered items within those particulars relevant to each of those two employees. I propose to follow his challenges in the same order later in this decision.

The Particulars, the Challenges and Discussion

12Notwithstanding the revocation of the suspensions and the replacement or substitution of the Letter of Counselling, the grievances were not withdrawn for these two individuals, it being the Union’s position: firstly, that the Letters of Counselling were in themselves disciplinary in nature; and secondly, that the transfers of each of the employees out of Huntsville Store 106 was part and parcel of the discipline they had initially received in June, 2021. Finally, that the discipline originally imposed, although revoked in part, had consequences for the Grievors for which remedies should be provided.

13For the Union it is submitted that the grievances alleged unjust discipline and that in such situations the knowledge with respect to the basis for the discipline falls entirely within the knowledge of the Employer and in such cases it is incumbent upon the Employer to proceed first to rationalize its decision and actions.

14It is the Employer’s position that the rescission of the suspensions and the reimbursement to the Grievors of all financial losses rendered the grievances moot. Additionally, it is the Employer’s position that the transfers were administrative in nature and not disciplinary. In the circumstances, the Employer submits that should the Union seek to pursue the grievances the onus is upon it now to demonstrate not only that some element of discipline remains either with respect to the original discipline or in the Counselling Letter which replaced that discipline. With respect to the transfers themselves, it is the Employer’s position that they were implemented not as part and parcel of the original discipline but as administrative transfers which fall within the management rights of the Employer and which transfer rights are not restricted in any way pursuant to the terms of the Collective Agreement.

15Notwithstanding the foregoing, in the instant proceeding the parties do not seek a ruling as to whether or not the grievances are moot and/or whether or not the transfers were administrative or disciplinary in nature. Rather, I am asked at this stage to determine only if elements of the Union’s particulars with respect to each of these employees should be struck as contended by the Employer. The stated purpose of the exercise is to eliminate unnecessary issues so that the remaining issues on the merits may be crystallized for appropriate determination.

16This now brings me to a consideration of those paragraphs of the Union’s particulars which are challenged by the Employer regarding each of Tamara Schlosser and Michael Hansen.

17The various provisions challenged by the Employer with respect to the Grievor, Tamara Schlosser, appeared in the Union’s letter setting out the particulars of its case at paragraphs 18, 19, 20 and 21.

18With respect to the Grievor, Michael Hansen, the Employer challenges paragraphs 31, 32, 33 and 34.

Tamara Schlosser – Particulars Challenged, the Discussion and Determination

1. Paragraph 18 – Reputational Damage

19The Union particulars claim that the Grievor suffered reputational damage following her transfer out of Store 106 in Huntsville to the alternative store chosen by the Employer. It is alleged that the Grievor suffered damage when a customer who knew her from Store 106 recognized her in the new store and asked her why she had been transferred.

20As Mr. MacLellan submitted, there is nothing in those facts or assertions that suggests that the Employer promulgated any information to the public or customers that the Grievor had been transferred against her will and/or that the transfer had been for disciplinary reasons.

21I am satisfied here that there is indeed no basis upon which to find the Employer was responsible for any alleged reputational harm that the Grievor might have suffered. Indeed, the fact that one or more customers might have inquired about her presence in this alternative store does not in any way form the basis for a finding that her reputation had been damaged let alone that the Employer was responsible for any such damage. Accordingly, the motion with respect to paragraph 18 succeeds and it is struck from the Union’s particulars.

2. Paragraphs 19 and 20 – Mental Health

22In this particular claim the Union alleges that the Grievor was suffering from some mental health issues for which she initially went on stress leave due to the toxic work environment in Store 106. That, however, was before she received the discipline here. After she was disciplined, the Grievor started taking medication for her stress and anxiety.

23Mr. MacLellan for the Employer takes the position that the Grievor was suffering with mental health issues and was on stress leave before she had been disciplined. The Union in its allegations suggests that her condition arose from the discipline for which the Employer is responsible.

24I have considered the submissions of the parties and I am satisfied that while the Grievor’s condition may well have been exacerbated at the time she was disciplined, it was indeed a pre-existing condition which was not initiated by the discipline itself. While I agree with Mr. MacLellan that there is no basis to find that the discipline itself caused the Grievor’s mental distress, it is arguable that the original discipline did indeed exacerbate that condition.

25In the circumstances I do not find it appropriate to strike the totality of the particulars in paragraphs 19 and 20 with respect to Tamara Schlosser. On the other hand, in those provisions the Union for the first time alleges that the original discipline imposed by the Employer was imposed in bad faith. There were no facts alleged in that specific allegation to support the notion that the Employer acted in bad faith when it disciplined the Grievor. In the circumstances, that part of paragraph 20 alleging bad faith is stuck.

26While the remaining portions of paragraph 19 and 20 remain for the time being, I direct the Union to provide more fulsome particulars with respect to the alleged causal connection as well as the extent of the mental health damage suffered and claimed on behalf of Ms. Schlosser.

27However, any consideration of her mental health issues and related damages will not be considered in respect to her work or time at the store to which she was transferred. Issues there, if any, would form the basis for a fresh grievance and are too remote to be remedied in this complaint.

3. Paragraph 21 - Lost Promotional Opportunity

28In paragraph 21 the Union alleges that the Grievor was unsuccessful in two promotional opportunities notwithstanding that she was the senior applicant.

29Mr. MacLellan argues that this represents an unwarranted expansion of the grievance. Furthermore it is too remote to be entertained in this arbitration.

30I have considered that issue and I am satisfied that it is, indeed, too remote an issue to be entertained pursuant to this grievance. Also, it does represent an unwarranted expansion of the grievance. Finally, if Ms. Schlosser was wrongly deprived her rights through a selection process, her claim would form the basis of a grievance independent of that before me.

31Accordingly, paragraph 21 is struck from the Grievor’s particulars.

Michael Hansen – Particulars Challenged, the Discussion and Determination

1. Paragraph 31 – Loss of Hours

32Here, the Union is seeking a remedy for matters arising in the Store to which the Grievor was transferred. Specifically the claim is that “the LCBO also struggles to accommodate his disability due to fewer staff at this store”.

33Here Mr. MacLellan takes the position that the allegation is that the Grievor has lost hours at the new store. However, there is no allegation that he has been discriminated against due to his disability. Rather the employer is struggling to accommodate him. Accordingly, there is no valid claim for loss. Further, if there was such a claim, it ought to have been raised as a fresh grievance. The provision should be struck.

34It is my view that, absent alleged discrimination by the Employer in the new facility, there is no basis for this claim. Additionally, if Mr. Hansen has been discriminated in that store by reason of his disability, the appropriate response was to grieve the matter where the hours have been lost.

35I agree with Mr. MacLellan that this is an expansion of the original grievance which issue, if valid, ought to have been grieved at the new store rather than being piggy-backed on the grievance before me.

36Accordingly, paragraph 31 is hereby struck from the Union’s particulars.

2. Paragraph 32 – Lost Promotional Opportunity

37The allegation here, as in the case of Ms. Schlosser, suggests that the Grievor was passed over for two permanent positions.

38As in my determination with respect to Ms. Schlosser’s similar claim, this aspect of the particulars respecting the Grievor must also be struck. It represents an unjustified expansion of the original Grievance.

39Accordingly paragraph 32 is struck from the Union’s particulars.

3. Paragraph 33 – Mental Health Issues

40Paragraph 33 of the Union’s particulars alleges that the Grievor is experiencing stress and anxiety due to his discipline.

41As in the case of Ms. Schlosser, the Grievor had sought and was receiving assistance pursuant to the LCBO’s Employee and Family Assistance Program as early as April 2021 which predated the discipline here. Although there was no medical to support that assertion, the provision went on to assert that he continued to receive that assistance into August of 2021.

42Similarly to Ms. Schlosser’s situation, the Grievor’s mental health issues appear to have started before he had been disciplined. It is unfortunate that Mr. Hansen is suffering from those issues but it is difficult at this stage to determine whether or not there is a legitimate causal of connection between his issues and the discipline he originally received. That problem is more apparent in the case of Mr. Hansen since the causal connection did not appear in earlier particulars provided by the Union.

43Nonetheless, as in the case of Ms. Schlosser it may be that the Grievor’s condition which pre-existed his discipline was indeed exacerbated by the discipline he received. I will not strike that provision at this stage of proceedings, however, I would expect and hereby direct the Union to provide more fulsome particulars with respect to the alleged causal connection as well as the extent of the damage suffered and claimed on behalf of Mr. Hansen.

44Finally as clarified in the case of Ms. Schlosser, and in respect of my disposition of Paragraph 31 of the particulars, loss of hours in the alternative store will not be considered here under the rubric of mental health issues. That would represent an unwarranted expansion of this Grievance.

4. Paragraph 34 – Reputational Harm

45As in the case of Ms. Schlosser the Union pleads or particularizes an allegation that Mr. Hansen has suffered reputational harm due to the transfer to the new store from Store 106.

46As in the case of Ms. Schlosser, I find that allegation fails to assert that the Employer promulgated any information that might have damaged Mr. Hansen’s reputation nor is there anything in the particulars indicating how his reputation might have been damaged. The fact that he was recognized in the new store by customers who knew him in Store 106 and that they remarked upon this matter does not indicate any reputational harm let alone harm that might have been caused by the transfer itself. Additionally, I might add that there was no suggestion in the particulars as to how the Grievor suffered some financial loss with respect to any damage to his reputation.

47In the circumstances, Paragraph 34 is struck from the particulars regarding Mr. Hansen.

Summary Conclusions

48As noted in the body of this decision with respect to the Grievance of Tamara Schlosser and the particulars provided by the Union, Paragraphs 18 and 21 are struck for the reasons provided above. Paragraphs 19 and 20 relating to her mental distress are not struck but are subject to my comments there striking a bad faith allegation and requiring the provision by the Union of more fulsome particulars to substantiate some causal connection between the discipline she received and her mental health as well as the extent of her mental distress.

49With respect to Michael Hansen, Paragraphs 31, 32, and 33 are struck. Paragraph 34 of the Union’s particulars relating to the Grievor’s mental stress and anxiety is not struck but, as in the case of Ms. Schlosser is subject to provision of more fulsome particulars with respect to a causal connection between the discipline and the Grievor’s distress and the extent to which his mental issues might have been exacerbated by the alleged discipline.

50The foregoing constitutes my decision with respect to the Preliminary Motion brought by the Employer. I remain seized to deal with all other outstanding issues and the merits of the grievances which are before me.