GSB# 2022-9373

UNION# 2022-0584-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Silaghi)

Union

• and -

The Crown in Right of Ontario (Ontario Clean Water Agency)

Employer

BEFORE

Annie McKendy

Arbitrator

FOR THE UNION

Sarah Khan Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 22, 2024

Decision

1This Decision addressed two preliminary objections brought by the Employer. The first seeks to have the Grievance dismissed for failure to disclose a prima facie case of breach of the collective agreement. The second argues that the Union seeks to expand the scope of the Grievance.

2For the reasons that follow, I find that the Union has set out a prima facie case in its particulars. On the issue of scope, the Union may raise issues regarding the sufficiency of the investigation conducted by the employer, but it may not argue a freestanding breach of Article 22.10.3.2.The matter will therefore proceed on its merits on the next scheduled hearing date.

Background

3The Grievance before me was filed on September 26, 2022 and reads as follows:

I grieve the employer has violated the collective agreement but not limited to Article 2 – Management Rights, 3 – No Discrimination, 9 – Health and Safety and any other articles or legislation that appl[ie]s.

Settlement desired

Full redress including 1 – All sick credits be restored to my sick leave band for this period. 2 – A declaration that the employer has fostered a poisoned work environment. 3 – The employer to [e]nforce their Harassment and Discrimination Policy in the workplace and any other remedy and any other remedy that in the opinion of the arbitrator will make whole[.]

4The particulars are brief. They set out a single allegation of harassment which took place in March of 2022, during which the Grievor’s Team Leader grabbed a banana and placed it suggestively near the Grievor’s groin and then near his mouth. The particulars allege that the incident took place in the lunchroom in front of witnesses and that the incident was sexual in nature.

5The particulars allege that “the Grievor complained to his manager and the Employer investigated the allegations. On or about August 2022, the Employer concluded their investigation and failed to follow Article 22.10.3.2. The Grievor filed the grievance on September 26, 2022. Since the Grievor was not provided with the result of the investigation, he believes his complaints were not taken seriously and he is forced to work in a poisonous work environment.”

No Prima Facie Case

6The Employer submits that the Union has failed to plead a prima facie case. The test was summarized in OPSEU (Solomon Smith et al) and Ministry of Children, Community and Social Services, GSB#2017-0054, (Anderson), citing Ontario Public Service v Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson):

… In order to succeed, the moving party, in this case the Ministry, must establish that the “facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged”: Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion.

7The Employer submits that in order to make out a prima facie case the Union must first, demonstrate that the Employer, in the exercise of management’s rights, conducted itself in a manner that was discriminatory or harassing of the Grievor. Second, it submits that the Union must establish that such conduct was motivated in whole or in part by the Grievor’s harassment complaint. They submit that I should follow the Board’s decision in OPSEU (Brydges et al) and Ministry of Transportation, GSB#2012-1012, (Dissanayake). The Employer submits that no Code-protected ground has been pled that would attract the protection of the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”).

8With respect, it is plain on the face of the allegation that the impugned conduct attracts the protection of the Code prohibits harassment in the workplace because of sex, sexual orientation, gender identity or gender expression, including harassment by another employee. It is trite law that a single incident of unwelcome conduct can constitute harassment, both pursuant to the Code and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”)

9The Union directs me to the decision in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, which sets out the test for determining whether an employer is liable for harassment perpetrated by its employee. An employer may be liable for harassment where management knew or ought reasonably to have known of the harassment and failed to take appropriate steps to address it. OHSA, which covers both workplace harassment and sexual harassment, requires at a. 32.07 that an employer conduct an investigation which is appropriate in the circumstances upon receipt of a complaint of harassment.

10The question at issue is not, as the Employer suggests, whether the employer itself acted in a manner that is discriminatory or harassing, but whether it was made aware of the allegation of sexual harassment, and if so, whether it conducted an investigation which was reasonable in the circumstances.

11While the failure of the Employer to communicate the results of an investigation, if established on the merits, may not on its own be sufficient to demonstrate that the investigation was inappropriate, I note that the evidence around the sufficiency of the investigation is in the hands of the Employer and may only be available to the Union when the Employer presents their evidence.

12The Employer submits that the results of the investigation were communicated to the Grievor during the First Resolution Stage Meeting. I am not satisfied that a disclosure of the results following the filing of the grievance is such that the Union’s particulars, if proven, could not constitute a breach of the collective agreement.

13The Employer further submits that the Union has not made out a prima facie case with respect to the allegation of reprisal in their particulars. On this narrow point, I agree. My understanding of the particulars is that the Grievor “feared reprisal”. However, to the extent that the Union intended to call evidence of reprisal, I accept the Employer’s assertion that no facts have been set out that could support such a finding.

Scope of the Grievance

14The Employer submits that the Union attempts to expand the scope of the grievance by suggesting a breach of article 22.10.3.2 of the collective agreement in the particulars.

15Article 22.10.3.2 states the following:

Where, at any time either before the making of a complaint or the filing of a grievance under Article 22, the Employer establishes an investigation of the complaint, or the employee agrees to the establishment of such an investigation, pursuant to any staff relations policy or other procedure of the Employer, the time limits for the processing of the complaint or grievance under Article 22 shall be suspended until the employee is given notice in writing of the results of the investigation, which shall be completed within ninety (90) days or less, which time limits may be extended by mutual consent.

16The Employer directs me to the decision of the Board in OPSEU (Botosh) v. Ministry of the Attorney General, GSB Nos. 2014-1088, 2014-1089 et al., February 20, 2018 (Abramsky), which summarizes the guiding principles at paragraph 24 and following:

24The jurisprudence is clear and the legal principles are well-established. In Re OPSEU (Jones et al.) and Ministry of Labour, GSB No. 2006-1203, the Board addressed the issue of when a claim may be viewed as part of a grievance or raises a new issue. After citing Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (Ont. C.A.), and Re Electrohome Ltd. and I.B.E.W., Local 2345 (1984), 1984 CanLII 5204 (ON LA), 16 L.A.C. (3d) 78 (Rayner), the decision states, at par. 19:

Thus, in determining whether an issue raised by a party at arbitration is properly before a board of arbitration, the board determines whether, on a liberal reading of the grievance, the issue in dispute may be viewed as part of or inherent in the original grievance or is essentially a new grievance. If the issue was part of or inherent in the original grievance, the lack of precision in the written grievance should not be a technical bar to a board of arbitration’s jurisdiction. Conversely, if the matter is truly a different, new issue, the board will decline jurisdiction. In Re Greater Sudbury Hydro Plus Inc. and CUPE, Local 4705 (Armstrong Grievance) 2003, 12 L.A.C. (4th) 193 (Dissanayake), Arbitrator Dissanayake determined that “[t]o include an issue through a ‘liberal reading’ I must be able to conclude that the employer reasonably should have understood upon reading the grievance that the issue in question was part of the grievance.”

17The Employer submits that based on the language of the grievance, that it could not have reasonably understood that 22.10.3.2 was at issue. Insofar as the article speaks to the suspension of time limits of the grievance, I agree with the Employer. The Union may not advance a freestanding breach of article 22.10.3.2 without expanding the scope of the grievance.

18However, as I understand the Union’s position, it points to this article in support of its view that the Grievor should have received written results of the investigation as part of an appropriate investigation, since this step is contemplated by the collective agreement.

19The Grievance cites article 3 of the Collective agreement, which incorporates the Code by reference. It also cites article 9 which addresses health and safety. The sufficiency of an investigation into allegations of harassment is inherently engaged by both the Code and OHSA, both of which I have jurisdiction to apply. I therefore find that the grievance was written sufficiently broadly that the appropriateness of the Employer’s investigation into allegations of sexual harassment could reasonably have been contemplated as forming part of the grievance. Additionally, the notes from the First Resolution Stage Meeting show that the question of the method and extent of communication of the results were at issue at that time.

20The Union may raise arguments around the appropriateness of the investigation and communication of its results to the Grievor. It may not argue a freestanding breach of article 22.10.3.2.

21For these reasons, the matter will go forward to a hearing on the merits on the next scheduled date.