P/0070/93

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

D. DaSilva

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Health)

Employer

BEFORE

D. Leighton

Panel Chairperson

FOR THE GRIEVOR

D. DaSilva

FOR THE EMPLOYER

C. Nikolich

Counsel

Legal Services Branch

Management Board Secretariat

HEARING

July 27, 1995

Mr. Doug DaSilva brings a grievance to the Public Service Grievance Board (the Board) alleging that unfair treatment and mismanagement by Mr. C. Mee, his immediate Supervisor, of two grievances filed on October 15, 1992 by a bargaining unit employee of the Ontario Public Service Employees Union (OPSEU) alleging sexual harassment and harassment, has caused him severe and unnecessary emotional and psychological stress which led to special medical treatment and a lengthy sick leave. At the time of the bargaining unit grievances, Mr. DaSiIva was Manager, Claims Services, in the Ministry of Health, London office. He was notified on July 5, 1994 that because of a management restructuring his position had been declared surplus. Thus his employment with the government was being terminated pursuant to Section 22(4) of the Public Service Act, R.S.O. 1990 c.P. 20.

Counsel for the Employer brought two motions to the attention of the Board on the first day of the hearing into this matter. Counsel argued that this Board had no jurisdiction to hear this grievance because the grievance of the bargaining unit employee was withdrawn, and there was no action taken by the Employer against Mr. DaSilva. Counsel argued that the Grievor wanted this Board to review the handling of the grievance of the bargaining unit employee, a grievance for which Mr. DaSilva was not a party. Counsel argued that the investigation and the grievance procedures were followed according to the collective agreement and that the investigation was handled reasonably and within the guidelines. She argued that this was not a working conditions or terms of employment grievance, nor was it a wrongful termination grievance and that for all these reasons this board should dismiss the grievance.

In the alternative, Counsel also argued that the grievance had not been filed in a timely manner, being filed five months late.

Mr. DaSiIva summarized the facts of his grievance in a letter to Mr. Michael Decter, then Deputy Minister, dated August 11, 1993. On October 16, 1992 Mr. DaSilva was given notice that there were two grievances by a bargaining unit member, one alleging harassment, and the other alleging sexual harassment against Mr. DaSilva. Mrs. K. Charlton, Manager, Organization Planning and Development, Ministry of Health, was asked to investigate the grievances and write a report. The investigation took place on January 26, 1993 and subsequently a report was prepared which was dated March 22, 1993.

At the same time that these grievances were pending, Mr. DaSilva’s workplace was going through management restructuring. As a result of this process, management employees were required to “apply” for new positions in early December 1992. In his letter to Mr. Decter, Mr. DaSilva states clearly that he felt that he could not adequately compete for a new position in December 1992, given the pending grievances. He stated this again at the hearing before me. There is no dispute between the parties that he did not apply for a position in December 1992.

Mr. DaSilva’s complaints about the process of handling the two grievances by the bargaining unit employee are that 1) it took too long to investigate and resolve the grievances, and 2) the investigator, Ms. Charlton, who was a management employee within the Ministry of Health, a colleague of his supervisor and, therefore, not impartial. 3) Further, he was not kept informed about the process as the investigation was handled and, generally, not treated fairly. 4) There was an unnecessary delay in investigating the grievances between October 16, 1992 and January 26, 1993 - three months.

Although Mr. DaSilva requested a copy of the investigation report from Mr. Mee, it was not given to him. Mr. DaSilva was informed by registered letter on May 7, 1993 by Mr. Mee that the grievances had been withdrawn at the Stage 2 meeting with OPSEU that had occurred on April 21, 1993. That letter also states that if he wished to acquire a copy of the report he must make a request through Freedom of Information.

Mr. DaSilva stated that he suffered a great deal of emotional distress as a result of the two grievances which were filed against him. He felt unable to apply for a job and interview for a position in December 1992 during the unit’s restructuring. He went on sick leave as of April 1, 1993, and remained on sick leave until June 1994. The Employer disputes the evidence as to why Mr. DaSilva did not apply for a job after notification of the two grievances.

The allegations by the bargaining unit employee against the Grievor were serious ones. The bargaining unit employee alleged sexual harassment and general harassment in the other grievance. However, the report of Ms. Charlton makes it clear that by the bargaining unit employee’s own evidence, Mr. DaSilva did not sexually harass her. She stated, “No facts were found to substantiate the sexual harassment allegations.’’ The report noted a “poisoned work environment” which essentially seemed to be a result of relationships which had deteriorated over a long period of time. The poisoned work environment was not supported by any evidence of discrimination on any of the prohibited grounds by the Human Rights Code. Rather, it seemed that there was a generally negative atmosphere in the office among most employees.

The general harassment grievance, had to do with a disagreement between the bargaining unit employee and Mr. DaSilva as to her banked time and vacation entitlement. The bargaining unit employee used five banked days for vacation, while Mr. DaSilva himself was away on vacation. Authorization for the bargaining unit employee’s vacation for the period in question had been approved, but standard office practice made it clear that using five banked days for vacation was beyond the maximum allowable at any one time which was four days. The recommendation of the report was that the reporting systems needed to be reviewed by management.

No disciplinary action was ever taken against Mr. DaSilva as a result of these grievances, or as a result of the report.

Decision

It is undisputed that prior to these harassment grievances the Grievor was considered an exemplary employee. He was accused of a serious breach of the Human Rights Code, which was never substantiated. He became ill as a result of the stress and eventually he lost his employment with the government.

Employers’ Counsel argued that the investigation was handled properly and the Grievor was fairly treated. The Grievor disagrees and alleges unfair treatment. Without a hearing into the merits of these contradictory allegations, I am not in a position to decide between the two positions. The facts as presented for the preliminary motion were agreed upon by the parties, except as specifically noted where they disagreed. But I have heard only partial evidence as to the process of investigation of the complaints, and thus at this stage I do not have sufficient evidence to warrant dismissing this case.

I do not accept the argument by Ministry Counsel that the Grievor was not disciplined, therefore there has no cause for complaint, nor that the Grievor had no interest in the outcome of the original grievances brought by OPSEU. There is a fundamental duty to treat those accused of what constitutes a serious breach of the Human Rights Code with fairness whether the complaint is pursued under the Workplace Discrimination and Harassment Prevention Policy (WDHP) or as a result of grievance rights under the collective agreement. Masters V. Johnson (1994), 1994 CanLII 10571 (ON CTGD), 18 O.R. (3d) 551 (Div. Ct.), cited by Ministry Counsel stands for the principle that even in the investigation of a complaint of sexual harassment, there is a duty of fairness to the accused employee (at p.585). The Divisional Court in Masters recognized that a "mere allegation of sexual harassment may indelibly damage an individual" (at p.588). The Employer must address the well being of the employee alleging the harassment and the need for a harassment-free work place and the effect of the accusations upon the alleged harasser, according to the Divisional Court decision. In the Master's case, fairness did not require a full evidentiary hearing into this complaint before the employee was terminated. The Court measured fairness against the procedures chosen by the government, in this case the WDHP procedures, and found that there was not unfair treatment of the employee. Whether the employer has been fair to the alleged harasser will depend on the facts of the case taken as a whole.

It was submitted by Ministry Counsel that the Grievor took a voluntary retirement sometime after his sick leave. Again, without a full hearing of the evidence I am unable to judge the significance of this fact.

Finally, while Counsel for the Ministry brought up the issue of timeliness, no cases were cited to me and little argument was made on this ground. This Board has the jurisdiction to waive time requirements and has done so in the past. The Employer does not claim any prejudice by the delay. The Grievor was on sick leave and under a doctor's care at the time. In all the circumstances, the delay of five months is not excessive and should not bar a grievance being heard in this case.

For the reasons stated above, the motion to dismiss the grievance is hereby dismissed and a hearing on the merits of the case should proceed.

Dated at Toronto, this 10th day of April 1996.