P/0027/91

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

V. Daley

Grievor

• and -

The Crown in Right of Ontario (Ministry of Correctional Services)

Employer

BEFORE

J. A. Willes N. Argarwal

Panel-Chair Member

FOR THE GRIEVOR

K. Jull Counsel Beard, Winter Barristers and Solicitors

FOR THE EMPLOYER

J. Ravenscroft Grievance Officer Ministry of Correctional Services

HEARING

August 26, 1992 November 6, 1992.

Decision

The Grievor, Vince Daley, was employed at all material times as an OM-14 Unit Manager, a management employee at the Metro Toronto East Detection Centre. As a result of a series of events which began in July of 1990, the Grievor filed a grievance dated October 18, 1991, which reads, in part, as follows:

"Ms. D. Doherty Superintendent Ministry of Correctional Services 55 Civic Rd., Toronto, Ontario M1L 2K9

Dear Madam:

I hereby wish to grieve the working conditions that I have been forced to endure over the past 10 months.

On October 15th, 1991, I was to have been the focus of a hearing at the Grievance Settlement Board of Ontario. This action was Union directed. My person, my integrity and all my fundamental rights were violated by a group of individuals who are members of Local 582 OPSEU at the Metro Toronto East Detention Centre and their clique.

I am a BLACK Unit Manager OCR 14 with high standards and expectations and actively involved in the Ministry’s United Way Campaign and the Corrections Against Drugs Campaign. It is for these reasons that I believe that I am a TARGETED MANAGERIAL PERSON at the Metro Toronto East Detention Centre.

In March of 1989, there was a reorganization of administrative groupings and an upgrading of the C.O. III status and category. This action removed the old Correctional Officer III out of the bargaining category and realigned them with the OM and AM Managerial Excluded Categories.

Whatever the issues were from OPSEU's standpoint, normalization of labour relations did not appear to be one of them. As a matter of fact many locals and in particular Local 582 saw managers as TARGETS to vent their personal frustration

whether through legitimacy on falsification. In other words, the ends justified the means.

In my case, a campaign of deceit, slander, defamation of character and racism was launched against me due to:

1. Reporting a staff member being unfit for duty;

2. Reporting the complicity in the reporting of an alleged assault by an inmate upon staff.

3. Reporting of verbal threats to a member of staff by parties involved in the alleged assault of an officer;

4. Reporting an incident of insubordination by staff;

5. Unauthorized entry and removal of institutional food and tobacco items by a staff member;

6. Compromising of security by two staff members who allegedly had agreements with inmates to run and maintain law and order in a Ministry's holding facility;

7. Wearing unauthorized and improper footwear while on duty and

8. Smoking in an unauthorized area in contradiction of Institutional and Health Standards.

The Union had then given notice to line staff workers that (1) I am a dangerous man and should be watched and (2) my activities should be reported to Senior Executive Local 582 members for scrutiny and grievance filing.

This policy has resulted in my present predicament and my accusers and aggressors remain active and operating with impunity. Even their own rank and file members are in fear and intimidated by their actions. My appeal is therefore addressed to you Madam Deputy Minister. I would like a formal investigation into the activities of Local 582 OPSEU and its Local Executive members in particular the role and scope of

Messrs: Derek Miller, President Michael McKinnon, Vice President Mike Bunting, Steward Members: John Nichols Ruddy Spencer Anita Hohol-Brown Dave Davis (Maplehurst D.C.)

Mrs. A. Brown withdrew her grievances and complaints on October 11 1991 (see document attached). This confirmed my statements to the Ministry and MTEDC senior administration personnel all along that I had been targeted and was the central figure in paper-coup against Mrs. Doherty and her administrators.

To date there are several matters outstanding of which I am in need of your assistance;

(1) Financial and compensatory remunerations due to legal costs incurred and pain and suffering;

(2) Withdrawal of all negative reports from my file re this matter and all other matters March 1979 - October 1990.

(3) First chance of all upcoming promotional opportunities in the OM ranks up to and including the Am-17-18 level.

(4) First chance at all upcoming Management Development Program Opportunities at the entry and the interview levels.

Thank you for allowing me to present this letter to you for your consideration and expeditious action.

Respectfully submitted,

Vince M. Daley O. M. 14 Unit Manager M.T.E.D.C."

The grievance was denied by the Employer, and the dispute was placed before this Board for resolution. Hearings were held on August 26, 1992 and November 6, 1992, and written submissions made by the parties in the months that followed.

According to the evidence given and filed, the events which led to the grievance began with an informal conversation between the Grievor and a correctional officer, Mrs. Anita Brown, concerning her relationship with her then fiance, Mark Brown, a former correctional officer. During the conversation, the Grievor was alleged to have made certain critical remarks about the personality traits of Mrs. Brown's fiance which upset and angered her. In a later conversation the Grievor suggested that Mrs. Brown misinterpreted their discussion.

A month later, in an incident involving an inmate's letter, comments by the Grievor concerning the letter resulted in Mrs. Brown becoming concerned about her safety and security in the institution. Attempts were then made to mediate the dispute by senior management, but the matter was not resolved to the parties' satisfaction.

In September, 1990, the Grievor observed a correctional officer engaging in activities which he (the Grievor) believed at the time to be a breach of rules, and following a meeting with staff and the officer, filed a report concerning the alleged activities. The correctional officer denied the allegation, and complained to management about the Grievor's report that had been placed in his file.

In October, the Grievor verbally reprimanded Mrs. Brown for failing to follow Standing Orders by not maintaining proper post supervision. On October 28, 1990, Mrs. Brown then filed an Occurrence Report in which she stated that she has "being harassed because of this incident and some other problems" that she had experienced with the Grievor in the past.

As a result of the allegations, Senior Assistant Superintendent S. Small was directed to investigate the complaints of the correctional officer and Mrs. Brown, and report his findings to the Superintendent. The Senior Assistant Superintendent's report was submitted on January 7, 1991, and recommended that disciplinary hearings be held for the Grievor, the correctional officer, a second correctional officer, and a Lieutenant that had been involved in the incidents.

A hearing was scheduled for January 30, 1991 to deal with the complaint against the Grievor. The notice reads, in part:

"Dear Mr. Daley:

This letter is to advise you that a hearing has been scheduled to discuss the following allegations:

1. “That you failed to follow Standing orders of the Metropolitan Toronto East Detention Centre, Section 1.5, Page 5, which states: "in the course of their duties, employees will exhibit courteous and professional conduct in all of their dealings with each other.” This allegation concerns four (4) incidents on July 03, 1990, (2) August 10, 1990 and October 27, 1990, involving Mrs. A. Brown, correctional officer.

2. “That you accused Mr. J. Nichols, correctional officer, of committing the act of theft of government property without possessing sufficient evidence.”

The meeting is scheduled for Wednesday January 30, 1991 at 1030 hours in the office of the Senior Assistant Superintendent, Corrections.

As the outcome of the above-noted hearing may result in disciplinary action against you, you have the option of being accompanied and represented by an employee representative at the hearing.”

The matter was rescheduled to February 4 , 1991, but not carried further at that time due to the Grievor's ill health, which the Grievor alleges was brought on by the stress associated with the incidents.

On February 10, 1991, Mrs. Brown filed a grievance against the Employer under the provisions of her collective agreement alleging sexual harassment by the Grievor. The Employer denied the grievance, and engaged counsel to defend the grievance. Senior management gave the Grievor verbal assurance at the time that they believed the accusations were unfounded, and that the Employer's counsel would defend the Grievor. The Grievor, nevertheless engaged his own counsel to represent him in the dispute. Mrs. Brown later withdrew her accusation of sexual harassment against the Grievor, and the issue ended.

Because the sexual harassment case had resulted in a lengthy interruption of the discipline hearing for the Grievor, the Employer decided to abandon the investigation of the allegations against the Grievor raised in the January 7, 1991 report, but left in the Grievor's file the notice of the hearing and references to the sexual harassment complaint of Mrs. Brown. The Grievor at this point in time filed his grievance dated October 18, 1991 containing the allegations and relief requested as set out in detail and noted in this award.

Counsel for the Grievor submitted that the series of events and their handling by the Employer were a direct cause of the frustration and stress which the Grievor was forced to endure and which affected his health. Counsel also submitted that the incidents had been considered by management in their assessment of the Grievor's applications for promotion to several more senior positions in the Ministry. It was his position that the Grievor also suffered financially as a result of the allegations made against him because he not only incurred legal costs to defend himself, but because of the stress effects on his health, he was required to 'top-up' his disability compensation by using some of his vacation credits. Counsel stated that the Grievor should be entitled to compensation from the Employer for these losses. The Grievor gave evidence on these submissions, and the Grievor's wife testified as to the effects of the events on the Grievor's physical and mental health.

The Employer's position was that everything had been done to defend the Grievor in the complaints made against him, and because of the lengthy delay, the Employer decided to abandon any further investigation of the Grievor's alleged violation of Standing Orders. The Employer's position was that the grievances were union-driven in the sense that they were against the Employer, and the Employer was obliged to defend against the allegations. The decision by the Grievor to engage his own counsel was his decision, and the costs so incurred his responsibility. The Employer also submitted that it should not be responsible for the loss of vacation credits used to top-up the Grievor's sick benefits as this was an option open to the Grievor. The Employer also denied any bias against the Grievor in the job promotion process because of the Grievor's health or employment problems. In support of its position, evidence was given on these matters by the Senior Assistant Superintendent at the Centre during the period when the incidents occurred.

Mr. Small, who was the Senior Assistant Superintendent testified that the labour relations climate at the centre was complicated, volatile, adversarial and poor in terms of co-operation between the unionized staff and management throughout the time in question. His evidence was that many grievances were filed against first line management alleging unfair labour practices and a variety of other complaints, among them, the complaints against the Grievor. He stated that he investigated the complaints against the Grievor (among others) and produced a report on January 7, 1991 recommending the disciplinary hearing scheduled for January 30, 1991. His evidence was that the notice of the hearing remained on the Grievor's file because it was only a notice, and not a letter of discipline, consequently it would have no effect on his career.

Mr. Small also testified that the Grievor was not a successful candidate for the positions he applied for because his scores were low. He denied that the correctional staff grievances against the Grievor were considered in the Grievor’s assessment for the positions he had applied for during that period of time.

This Board has carefully reviewed the evidence (of which only brief excerpts have been set out) and the submissions of the parties. The incident concerning the allegations of sexual harassment were no doubt extremely stressful for the Grievor, as was the thought of the discipline hearing which was eventually abandoned. Since the complaint of sexual harassment was withdrawn, the Grievor's file should not contain any reference to it, and it is this Board's award that the Employer forthwith review the Grievor’s file and remove any documentation which may refer to the sexual harassment complaint.

The notice of hearing concerning the allegation of violation of Standing Orders made against the Grievor (and subsequently abandoned) should also be removed in our view, since the matter was not pursued by the Employer, and may in some way be construed to relate to the allegation of sexual harassment. This Board, therefore, directs the Employer to remove this document from the Grievor's file as well.

The Grievor also claims that as a result of the allegations against him, and their effect on his health, he was unsuccessful in his applications for the job opportunities that were open to him during this period. While his health problems (and time lost from work related thereto) may have been a very minor consideration, this Board has reviewed the evidence, and is unable to conclude that the assessment panel had acted improperly in their assessment of the Grievor's qualifications or his suitability as a candidate. We accordingly find no basis for requiring the Employer to give the Grievor first priority consideration for all upcoming promotional opportunities in the OM ranks up to and including the AM-17-18 levels, or upcoming Management Development Program Opportunities at the entry and interview levels.

On the matter of the financial loss incurred by the Grievor with respect to the sexual harassment complaint, the use of vacation credits to top-up the Grievor's disability benefits, and the costs for this arbitration, this Board has carefully considered the arguments put forward by the parties. On the matter of use of vacation credits to top-up the Grievor's disability benefits while the Grievor was off work, this Board has been unable to determine any wrongdoing on the part of the Employer that would justify compensation for the Grievor's lost vacation credits. The events which occurred were no doubt stressful for the Grievor, but they were not as a result of the Employer's actions. The complaint was made by a union member, and pursued by the union against the Employer and management, including the Grievor. The Employer defended the Grievor in the process, and in our view took all steps required to protect the Grievor with respect to the complaint. While the situation was most stressful for the Grievor the evidence appears to be that the cause of the stress was essentially the actions of the complainant and the union, rather than the Employer. For these reasons, we are unable to find in favour of the Grievor on his request for the replacement of vacation credits.

On the matter of re-imbursement for the legal costs incurred by the Grievor on the sexual harassment complaint, in our view the Employer did nothing to require the Grievor to obtain counsel. While the interests of the Employer and the Grievor might conceivably have differed at some point in the complaint resolution process, the evidence does not suggest that the Employer's counsel did anything that was not in the Grievor's interests in this matter, nor did the Employer suggest that the Grievor engage his own counsel on the basis that their interests might differ. Under these circumstances this Board is not prepared to hold the Employer responsible for the legal costs of the Grievor in the sexual harassment grievance proceedings.

Counsel for the Grievor has also submitted that the legal costs of the Grievor in the grievance before this Board should be awarded against the Employer. In support of this submission, counsel has cited B. Callaghan and the Crown in Right of Ontario (Ministry of Agriculture and Food) P/0009/89.

The Callaghan case represented a particular incident in which the employer failed to disclose to the Board during the arbitration hearing process that it had made the grievor's position redundant, an action that essentially rendered the grievance pointless and the Board's award useless to the grievor in terms of the relief requested and ultimately granted. The grievor in that case was then required to grieve again the actions of the employer, and it was in the second case that his reasonable legal costs were awarded .

The general and long-standing policy of this Board has been to not award legal costs to grievors. The Callaghan case represents a very rare situation where justice and fairness required making the Grievor whole, and should not be taken to reflect present Board policy on the issue of legal costs. This Board is not persuaded that the case before it should fall within the Callaghan exception, and it is accordingly not prepared to award legal costs.

In summary then, the grievance succeeds in part, and the Employer is directed to forthwith purge the Grievor's files of all references to the sexual harassment complaint, and the reference to the disciplinary hearing originally scheduled for January 30, 1991.

DATED AT TORONTO THIS 18th DAY OF August, 1993.