C. Murphy v. The Crown in Right of Ontario (Ministry of Transportation), 1999 CanLII 13876

PSGB # P/0017/92

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

C. Murphy

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Transportation)

Employer

BEFORE D.J.D. Leighton Vice Chair

G. Deszca Panel Member

FOR THE David Moore

GRIEVOR Counsel, Bellmore & Moore

Barristers & Solicitors

FOR THE Roy Filion

EMPLOYER Counsel, Filion, Wakely & Thorup

Barristers & Solicitors

HEARING January 5, May 17, 18, June 21, 22, 1993

March 8, 24, 25, October 18, 27, 1994

January 5, 6, March 31, August 14, 15, 1995

April 9, 10, 11, 24, 25, 26, May 8, 21, 22, 29, 30, 31, 1996

June 17, 21, 24, 27, September 18, November 1, December 2, 3, 1996

May 13, 15, 1997

Ms. Murphy began employment with the Ministry of Transportation (the employer or MTO) in 1988. There were four grievances before the panel: the transfer grievance dated May 29, 1992, in which the grievor alleged she had been wrongly transferred to the position of Project Manager, Aboriginal Issues, Corporate Policy Branch; two grievances claiming a breach of human rights and discrimination against her dated July 31, 1992; and the competition grievance in which the grievor complained that she was wrongly not considered for competition #MT/SMG-13 for the position of Employment Equity Manager. The hearing into these grievances took almost forty days, over the course of four and a half years. The grievor went on long-term disability on January 31, 1994. With regard to the first grievance, Ms. Murphy alleged that:

The decision to reassign me was unfair and unreasonable, was based upon allegations which were never discussed with me and upon irrelevant and improper considerations, and was implemented in a manner which violated the established practices and policies of the government and the ministry.

In her second grievance, Ms. Murphy alleged that the decision to transfer her to the Project Manager position was improper because the decision was one in:

The culmination of a series of acts taken against her in an unfair, arbitrary and discriminatory manner. The culminating incident was preceded by acts of sexual discrimination, harassment, and general lack of support for the employee between the period March 1991 and May 1992.

In her third grievance, Ms. Murphy alleged that the employer, and specifically the Director at the time, mishandled the complaint of Glenys Bryant against Ms. Murphy. In this grievance, Ms. Murphy alleged

The Director personally decided to treat Bryant’s grievance as a complaint rather than a grievance to the Deputy Minister. The Director then decided to treat Ms. Bryant’s grievance as a grievance after the Workplace Discrimination and Harassment Prevention Unit decided her complaint was without merit. The Director further undermined the employee by giving the employee instructions the Director later chose to not support; all without advising the employee or discussing his change of perspective, beforehand. In addition, the Director allowed the process involving Ms. Bryant’s grievance-complaint to become protracted for a period of over sixty days, before informing the employee that Ms. Bryant’s grievance-complaint was without merit.

This grievance also alleged that the Director’s recommendation for Ms. Murphy to be transferred to the Project Manager position was made in bad faith. The fourth grievance alleged that Ms. Murphy was wrongly not granted an interview for the position of Employment Equity Manager:

I held this position from February 22, 1988 to September 30, 1991 and had the necessary qualifications and experience to be the successful candidate in the said competition. However, I was not even granted an interview for the position. I grieved the procedures followed and decisions taken in this competition were unfair and improper and that I was wrongly denied an opportunity to obtain the position in question.

Ms. Murphy sought reversal of the decision to transfer her to the position of Project Manager and reassignment either to her former position or to a position within the SMG Group, legal costs, and an apology letter. With regard to the competition grievance, Ms. Murphy sought reinstatement to the position of Manager of Employment Equity in the Ministry of Transportation as a remedy. The parties requested that the panel not address the issue of remedy and only make a decision on whether or not the employer was liable for any of the four grievances. Pending the outcome of the panel’s decision, further submissions on remedy would occur at a later date.

The employer took the position that the four grievances should be dismissed, that the decision to transfer Ms. Murphy to the position of Project Manger was made in good faith, and that there had been no discrimination or harassment of the grievor.

Given the length of the hearing and the extensive evidence tendered, we have summarized the key evidence, and referred to evidence where necessary in our reasons for the decision.

THE EVIDENCE

Ms. Murphy worked for eight years in the federal government before obtaining her first position with the Ontario Public Service (OPS) in 1984 as a Manager in the Ministry of Citizenship and Culture, responsible for policy development, programs and services to support aboriginal communities. In 1988 she was the successful candidate for a competition for the position of Manger, Employment Equity for MTO. She held this position until September 1991 when she was reassigned to the position of Manager, Employee Services. The evidence is clear and the employer conceded that Ms. Murphy was a good employee who received positive performance appraisals. No performance appraisals were done for Ms. Murphy during her tenure in the Human Resources Branch of MTO. The evidence was also clear that she was well respected within the employment equity community within the government. Her career and advancement were important to her. In a letter to Mr. Norman Mealing, dated August 1, 1990, Ms. Murphy wrote the following:

Re: Curriculum Vitae - Carol Murphy

Please accept my letter and attached resume for your consideration when an opportunity or position will allow me to contribute to the ministry’s new directions and to advance in my career.

My resume outlines my skills and accomplishments as a manager, consultant, human resources specialist, and educator with the federal and provincial governments in Canada. I believe I have demonstrated my capability as a senior manager and policy analyst in the delivery in economic, social, education and employment programs affecting diverse client groups. My experiences include a thorough working knowledge of government planning, allocation and consultation process. I have been responsible for the development, integration and evaluation of various government programs and services. As a policy analyst, I was responsible for developing innovative policies, the interpretation of acts and regulations, and the formulation of options for issues management. I work effectively with all levels of government, with education institutions, with agencies and the private sector. I appreciated meeting with you recently in my role as Employment Equity Manager and hope you will consider my resume for future opportunities.

The Employment Equity Manager’s Position

The evidence supports a finding that promoting employment equity within MTO was challenging and was met by resistance by some. Early in her tenure as Employment Equity Manager, Deputy Minister Hobbs encouraged her to make changes, be candid and open. Ms. Murphy testified to a number of incidents that occurred during her tenure as Employment Equity Manager in the field. According to Ms. Murphy, her difficulties began with Mr. Kim Devooght’s appointment as Director of Human Resources. Ms. Murphy testified that in her view Mr. Devooght thought employment equity was a “joke” and a “numbers game.” Mr. Devooght acknowledged that he might have used such language in a meeting with Ms. Murphy and others. He testified that it was said in a context where he believed Ms. Murphy was being dogmatic, inflexible and taking an unyielding attitude towards certain target numbers or quotas. Mr. Devooght’s appointment as Director was in September of 1990.

Ms. Murphy disagreed with MTO’s policy that workplace discrimination and harassment complaints should be dealt with by the Employee Relations Office rather than the Employment Equity Office. Ms. Murphy wanted, at the least, some coordination with the Employment Equity Office on such complaints. However, Mr. Malcolm Smeaton, who was the Director of Employee Relations, adamantly opposed this view. Mr. Devooght agreed with retaining the status quo. This issue went beyond MTO and at the time was being debated throughout the OPS. One of the reasons Ms. Murphy wanted to be involved with such complaints was that during her day to day duties promoting and educating MTO employees on employment equity she was sometimes approached by employees with complaints of harassment or discrimination. Mr. Smeaton and Mr. Devooght viewed Ms. Murphy as not being able to drop this issue and accept the decision of the Director, that she should not investigate such complaints. It is clear in the evidence that this issue created a great deal of friction between Mr. Smeaton and Ms. Murphy. Before this issue arose, the two managers had collegial relations. Even after Ms. Murphy was transferred out of the Employment Equity position, the relationship between the two continued to deteriorate, and there was clear evidence that Mr. Smeaton did not like Ms. Murphy.

Ms. Murphy tendered the following evidence to support her claim that after Mr. Devooght’s appointment in 1990 she was the victim of increased harassment and discrimination because of her position as Employment Equity Manager. A summary of the following specific events was relied upon in argument. In October of 1990, at an inter-ministerial conference on employment equity Ms. Murphy expressed her concern about employment equity managers being permitted to investigate complaints and reports of discrimination and related issues. It was reported to Ms. Murphy after the meeting that Mr. Smeaton had complained to Mr. Devooght that the grievor had “low balled” him by raising these concerns in an inter-ministerial conference.

In December of 1990, at a meeting called by Ms. Elizabeth Ritchie, Manager, Staff Development, in which Ms. Murphy and Mr. Smeaton were in attendance amongst others, Ms. Ritchie attempted to discuss arrangements to train staff in the Eastern region regarding the then new Workplace and Discrimination and Harassment Policy (WDHP). Mr. Smeaton left the meeting abruptly in an angry and frustrated state. He testified that he felt ganged up on by those in attendance at the meeting, and particularly felt that Ms. Murphy was manipulating her co-workers to advance her own training agenda.

In April of 1991, Mr. Smeaton as part of a special committee, was involved in a review of a draft harassment policy. Ms. Murphy was Acting Director, while Mr. Devooght was away. Ms. Murphy asked Mr. Smeaton for a copy of this draft. Mr. Gallagher, a fellow employee, said that Mr. Smeaton became angry at the request, pounded his fists, and used obscene gestures, but not in front of the grievor. Mr. Smeaton denied doing this. His view was that Mr. Gallagher was mistaken or lied. He told the board that Mr. Gallagher was being progressively disciplined at the time and was subsequently dismissed. There was also evidence by Mr. Gallagher that comments such as “some people around here thought they were heavies but he (Mr. Devooght) was going to show them who the heavies are” were made by the Director.

Ms. Murphy testified that Mr. Smeaton frequently used the word wacko. Mr. Smeaton admitted using the term wacko. He said that he used it to refer to people who took extremist positions and admitted using it to refer to those working in advocacy positions for employment equity.

Ms. Bev Morning, a Human Resources officer in North Bay, testified that Mr. Devooght abruptly interrupted Ms. Murphy in a management meeting when she attempted to discuss a policy relating to employment equity. Mr. Devooght did not allow Ms. Murphy to let her name stand for the Presidency of the Employment Equity Council. This occurred towards the end of her tenure as Employment Equity Manager and it was clear at this point that she was going to be transferred to a new management position as part of the general reorganization of the unit.

Ms. Murphy testified that Mr. Devooght failed to respond to Ms. Murphy’s attempts for feedback on employment equity policy issues, that he seemed to be unconcerned about her difficulties and relationship with Mr. Smeaton. Ms. Murphy also testified that Mr. Norman Mealing, Assistant Deputy Minister, Corporate Services objected strenuously to Ms. Murphy’s providing information concerning sexual harassment cases to the Deputy Minister, Pat Jacobsen. Ms. Murphy stated that he referred to them both as “rampaging feminists,” as he left the meeting in an angry state. Mr. Mealing acknowledged in his evidence that this comment was inappropriate.

Ms. Murphy testified about an incident that occurred in May of 1991 at a conference organized by MTO on employment equity issues. Ms. Murphy had a central role in arranging the conference. Alex Kelly, Assistant Deputy Minister of Provincial Highways, was a keynote speaker at this conference. There is no dispute in the evidence that during his speech he made a number of inappropriate comments. He referred to Ms. Jacobsen as an “alligator.” He commented that he had been at a meeting with seven female executives and that he had felt like pulling condoms out of his pocket. Several of the delegates to the conference were offended by these remarks and complained to Ms. Murphy. Ms. Murphy took her complaints to Mr. Kelly and Mr. Devooght. Ms. Murphy testified that from her point of view nothing was ever done. Mr. Devooght testified that he met privately with Ms. Jacobsen to inform her of what had occurred at the conference, but that he did not report this back to Ms. Murphy. Ms. Jacobsen did not inform Mr. Devooght what action she took.

Sometime shortly after the employment equity conference Ms. Murphy was one of two women attending a district engineers conference where Mr. Kelly was also in attendance as a speaker. Mr. Kelly told the group that he felt like telling a good dirty joke, but that Ms. Murphy would need to leave the room before he could tell it. She reported this to Mr. Devooght. Mr. Devooght testified that he met again in private with Ms. Jacobsen to inform her of this incident. He did not inform Ms. Murphy about this meeting. Ms. Murphy testified that she felt she was not supported by her Director.

Evidence of the other incidents was put before the board to show the difficulties that Ms. Murphy encountered in the field as Employment Equity Manager. These were listed in the grievor’s submission not as evidence of harassment against the grievor, but as incidents, when the grievor did not feel supported by Mr. Devooght.

(1) statements by field crews in the Bancroft area to the effect that the crews hated women, that women should not be employed by the MTO in these positions, and that they did not want Murphy or anyone else telling them about employment equity;

(2) the Putnma weigh scale incident in which Murphy was confronted with a sign stating that “Sexual Harassment AT This Work Station Will Not be Reported However... It Will Be Graded!!!

(3) the Port Hope incident when a female worker had had a dildo placed upon her desk;

(4) the repeated concerns expressed to Murphy about the handling of the Elaine Davies matter;

(5) the resignation of Helen Skiba as Sexual Harassment Advisor in the Kingston area because of expressed concerns over a lack of senior management support;

(6) the comments of Alex Kelly at the Employment Equity conference in the Spring of 1991 when he appeared as one of the keynote speakers; and

(7) the actions of Kelly a short time later, referring to a dirty joke which he wanted to tell in Murphy’s absence (grievor’s submission).

Ms. Murphy testified that she felt that these incidents required a response from senior management. She did not generally feel supported by Mr. Devooght when she encountered problems.

Ms. Morning testified that when Ms. Murphy began as Employment Equity Manager “she was like a breath of fresh air.” By the end of her tenure, Ms. Morning said she thought Ms. Murphy was burnt out and frustrated. Ms. Kelch also thought that Ms. Murphy was burnt out. She said that it was important not to keep people in advocacy positions for more than two to three years, because of the energy required and the difficulty of such positions.

Transfer to Employee Services

As part of a major reorganization of the human resources branch, Ms. Murphy was transferred to the position of Employee Services Manager in the fall of 1991. The transfer to this position was intended to be temporary. In the employer’s view at the time, Ms. Murphy’s next best assignment was outside of the human resources branch. Mr. Devooght said that he did not discuss this move in advance with Ms. Murphy, and that she was advised after senior management had approved the reorganization. Ms. Murphy testified that she wanted to stay on as the Employment Equity Manager, however she did not protest the assignment to Employee Services at the time.

Ms. Murphy had considerable problems in this position with staff and with Mr. Smeaton, who remained as Manager of Employee Relations. The two significant events in evidence are the “Berlin Wall” created between Mr. Smeaton and Ms. Murphy’s departments,” and the Bryant complaint against Ms. Murphy. The transfer to Employee Services meant Ms. Murphy had closer contact with Mr. Smeaton than in her previous position. By this time these two were very hostile towards each other. Mr. Smeaton admitted in cross-examination that he considered Ms. Murphy to be arrogant, totally negative, manipulative, and deceitful. According to Ms. Murphy, Mr. Smeaton directed his staff to create a barrier of filing cabinets and dividers to create a division between their two departments. Ms. Smeaton testified that he was trying to use limited space efficiently and prevent people from walking through his department’s work space because of the noise and distraction. Ms. Murphy complained to Mr. Devooght who instructed Mr. Smeaton to dismantle the “Berlin Wall.”

The Bryant Grievance

The panel heard extensive evidence on a grievance of Ms. Bryant against Ms. Murphy. There is disagreement in the evidence as to whether or not the Employee Services Office had had historical operational difficulties prior to Ms. Murphy’s appointment. Mr. Devooght’s view was that the problems were not as severe as portrayed by Ms. Murphy, but that there was certainly need for improvement. There is no disagreement that Ms. Murphy attempted to introduce a more structured schedule regarding “flex days.” This met with some considerable resistance by the employees of the office and Mr. Devooght advised Ms. Murphy to slow down in implementing change.

Shortly after Ms. Murphy was transferred to the position, several employees made complaints about her management style to Mr. Smeaton’s Staff Relations Office. Mr. Devooght advised individual employees that if they had complaints they should put them in writing. Ms. Murphy testified that she was never given an opportunity to respond to these complaints, nor notified that they existed. The first time she saw the written complaints was during her cross-examination. Mr. Devooght testified that the employees making these complaints did not want their names or the details of their complaints disclosed to Ms. Murphy. He thought it would be counter-productive to have Ms. Murphy comment on each point of each complaint. Instead, in the late fall of 1991, he spoke to her generally about her management style and encouraged her to be more collegial.

On December 3, 1991 Ms. Bryant made a complaint directly to Ms. Murphy in writing, asking to meet with Ms. Murphy to discuss issues which concerned her and which she listed as follows:

1. Harassment/failure to communicate with me/humiliation.

2. Discrimination in delegation of work.

3. Ostracism.

4. Non-approachable/fails to listen/explosive/jumps to conclusions.

5. Performance problems.

6. Destructive management style.

7. Emotional abuse.

8. Inability to identify with work issues.

Ms. Bryant sent a copy of this memo to Mr. Devooght with a longer memo detailing her complaints and specific incidents. When Mr. Devooght became aware that Ms. Murphy had not received this attachment, he provided a copy to her immediately.

Ms. Murphy’s chief complaint about Mr. Devooght’s handling of the Bryant grievance is that upon being notified of Ms. Bryant’s complaint he arranged a meeting in order to assist the two employees in mediating a solution. A meeting was set up for mid-December in 1991, and lasted approximately two hours. Ms. Bryant took the whole two hours to describe her complaints against Ms. Murphy in detail. Ms. Murphy had no opportunity to respond or to discuss the complaints. The meeting was adjourned when Mr. Devooght had to leave because of another commitment. It wasn’t until six weeks later that Ms. Murphy was allowed to respond to Ms. Bryant’s allegations. After this meeting, Mr. Devooght told Ms. Murphy to prepare a performance agreement for Ms. Bryant for his review. Although Ms. Murphy prepared an agreement, she never received a response or any direction from Mr. Devooght regarding the document. Ms. Murphy was of the view that she was treated unfairly and inappropriately by Mr. Devooght in the handling of the Bryant complaint.

Ms. Bryant filed a WDHP complaint which was sent to Margaret Kelch, Acting Deputy Minister in March 1992. In May 1992, when the WDHP unit declined to investigate the complaint, Mr. Devooght sent a letter to Ms. Bryant, copied to Ms. Murphy, informing her of this decision because they found that the alleged harassment was not based on a prohibited ground.

Ms. Bryant had also filed a grievance claiming unjust reprimand because of an incident which occurred on March 17, 1992. Ms. Murphy testified that during a meeting with Ms. Bryant, attended by another employee, which related to Ms. Bryant’s work performance, Ms. Bryant became upset and threw a file at Ms. Murphy, and verbally abused the other employee. After the meeting, Ms. Murphy discussed the incident with Mr. Devooght who advised her to ask Ms. Bryant to leave the office for a few days before her scheduled vacation. This leave was to be with pay. Ms. Murphy advised Ms. Bryant and at later date delivered a letter to Ms. Bryant indicating that her conduct at the meeting was unacceptable. The memorandum made it clear that any similar conduct would result in disciplinary action against Ms. Bryant.

After being advised of the leave by Ms. Murphy, Ms. Bryant went directly to Mr. Devooght to complain. It was Ms. Bryant’s evidence that she did not throw a file, but rather just pushed it towards Ms. Murphy. She did not want to leave even with pay because it would appear to fellow staff that she was being disciplined. Mr. Devooght allowed Ms. Bryant to remain in the office.

The Transfer to the Corporate Policy Branch

On May 25, 1992, approximately eight months after Ms. Murphy’s assignment to Employee Services, she was re-assigned to the position of Project Manager, Aboriginal Issues in the Corporate Policy Branch. Ms. Murphy’s evidence was that she was not advised in advance about the decision to move her from Employee Services and that MTO’s policies were to discuss career advancement and changes with employees before they occurred. Ms. Murphy did not want to move into a policy position on aboriginal issues because she saw it as a step backwards in her career. She had worked in aboriginal issues for the federal government and when she first began with the OPS.

The employer provided evidence that the reasons for Ms. Murphy’s transfer to the project were two-fold. Ms. Murphy’s tenure in Employee Services had resulted in considerable tension in the unit with ongoing and deteriorating problems such as the Bryant grievance. Mr. Devooght decided that the best solution was to find Ms. Murphy a new position. Since the position in Employee Services had never intended to be her ideal move, nor was it intended to be permanent, Mr. Devooght spoke with Mr. Mealing and as a result of a decision to go forward with looking for a position for Ms. Murphy, Mr. David Gusgott, Assistant Deputy Minister for the Corporate Policy Branch, and Ms. Kathy Moore, Director, Corporate Policy Branch who was to be responsible for the project, were approached. The second reason for the transfer was a business need of the ministry to fill the policy position with someone like Ms. Murphy who was so well qualified. Thus it provided a positive career move for Ms. Murphy and fulfilled a need for the employer.

Ms. Murphy received a 4.3% increase in her salary, earning approximately $76,000 annually, and she was promoted to PEC-21. Several senior MTO officials, Ms. Moore, Ms. Kelch, and Mr. Mealing, testified that in their view the position in this special project was much more important to the ministry than the position of Manager of Employee Services. Since the government of the day had identified aboriginal issues as a priority, the position presented an opportunity for Ms. Murphy to raise her own profile within the ministry. In such a position she would make new contacts with senior people in the ministry and advance her career.

Ms. Murphy was first notified of the transfer on May 11, 1992. She made her concerns known to Mr. Devooght immediately about the transfer. She did not want it. Mr. Devooght asked Ms. Murphy to meet with Mr. Mealing about the move, which she did. Mr. Mealing advised her that he thought it was a positive move, but that she should discuss the position with Mr. Gusgott and Ms. Moore, who would be her supervisor. Mr. Devooght also responded in writing to Ms. Murphy’s concerns about the position, which he advised her was a rotational “assignment for development purposes.” He also stated in his letter to her of May 19, 1992:

First of all, with respect to the reasons for this move, I had indicated to you, as early as last summer, that the best “next” assignment for you was most likely outside the human resources area. You have been in the position of Manager, Employment Equity since your arrival in the ministry, and exposure to other business areas was probably the best next move. We were not able to find an appropriate assignment during the branch restructuring, outside of human resources, and as a result, you were assigned to the position of Manager, Employee Services. As you are aware, my strong desire during the restructuring here was to accommodate all the managers, and we were able to accomplish this, but none of these assignments will prevent other management assignments from occurring in the future.

Ms. Murphy was not advised at the time of her transfer that part of the reason was to remove her from the increasing tension of Employee Services. Mr. Mealing indicated to Ms. Murphy, as she seemed to be resisting the transfer, that there were various unspecified problems with her staying in Employee Services and that these would be raised if she continued to object.

Ms. Murphy reported to her new position on May 25, 1992 under protest. Ms. Moore, who was Ms. Murphy’s supervisor and the head of this special project, testified that Ms. Murphy did not let her complaint or grievance about this transfer interfere with her work on the project. Ms. Moore said that she would favourably recommend Ms. Murphy.

Ms. Murphy gave evidence about the complaints that she had with regards to the physical space that the project occupied. There were, in fact, three separate moves while she was in this position. The spaces were cramped, had been used for storage purposes, and she never had adequate filing cabinets, furniture, and computer systems. Ms. Moore testified that the physical surroundings of the office were not indicative of the importance of the position, or the potential for development beyond this position since it was only temporary. Ms. Moore testified that many of the other project managers at the same level as Ms. Murphy in the Corporate Policy Branch had gone on to positions much higher in status after their tenure as project managers. She testified that this type of position was traditionally a stepping stone to a better job. Ms. Moore subsequently became Regional Director for the Eastern Region of the MTO. It was clear by Ms. Moore’s evidence that as the head of this project she was unconcerned about the comfort of the physical space. It was clear that both space and equipment were hard to get at this point. Ms. Murphy also complained about lack of support staff. Ms. Moore testified that the primary reason for lack of support staff was budgetary. Several months after Ms. Murphy began, two support staff were funded for the project.

Evidence on Competition Grievance

Ms. Murphy testified that after her assignment to the special project on May 25, 1992 she learned of a competition for the position of Employment Equity Manager in MTO. She applied, but she did not get an interview.

In May of 1992, Ms. Kelch was the Assistant Deputy Minister, Quality and Standards. The Deputy Minister was Mr. Gary Posen. Ms. Kelch was responsible for screening the applicants for the position of Employment Equity Manager. Ms. Margaret Robinson actually did the initial screening which was approved by Ms. Kelch. Then the people to be interviewed were recommended to the Deputy Minister for his approval. Ms. Kelch testified that they made a conscious decision not to give Ms. Murphy an interview for the position. She spoke to Mr. Posen about Ms. Murphy and there was a decision not to interview her. The rationale for this was that it was not wise for an individual to do a job twice. She testified that neither Mr. Mealing nor Mr. Devooght had anything to do with the decision of her not getting an interview. Mr. Smeaton also had nothing to do with the decision. The decision not to grant Ms. Murphy was not documented. Ms. Murphy made a freedom of information request for the file for the competition and information as to why she was not given an interview. Amongst other information, the response identified the interview panel as consisting of Mr. Posen, Ms. Kelch, Mr. Mealing and Mr. Richard Wong, Management Board Secretariat. The reason given for Ms. Murphy not getting an interview was that the panel agreed that it was not “in the best interests of the ministry to have Ms. Murphy assigned the responsibility to implement the expanded and accelerated employment equity program.”

When cross-examined on this reason for denying Ms. Murphy an interview, Ms. Kelch reiterated that it was a conscious decision not to interview Ms. Murphy. They considered that it was not in Ms. Murphy’s best interests or in the ministry’s for her to do the job twice. Also, she stated that it was a high energy, high profile job and it was best to give many people an opportunity in the position. It was a practice at MTO to keep people in such jobs for two to three years. Ms. Kelch confirmed that the competition file, that is, the notes of the panel members of those interviewed, was missing. She confirmed that there was a thorough search done, but the file couldn’t be found. She also testified that there would be nothing in this file with regard to Ms. Murphy.

Submission by the Grievor on the Transfer to the Policy Branch

Counsel for the grievor, Mr. Moore, argued that the grievances turn on an assessment of the evidence. He argued that the real issue before us is the consequences of the attitudes towards Ms. Murphy, attitudes held by people that affected her career. He argued that she was held in low esteem and was viewed as a pain in the neck and this amounts to a biased and non-neutral view of her.

Mr. Moore submitted that there were two basic flaws with the assignment dated May 25, 1992 to the Policy Branch. The first was that the employer had not followed its own policies on transfer and promotion, that it had breached its duty to treat employees fairly, balancing the employer’s need to manage with the interests and expectations of the individual. He acknowledged that Ms. Murphy did not have “a right of veto,” but maintained that the employer had not been fair in its treatment of Ms. Murphy. The second flaw was that the policies were not followed because people were discriminating against Ms. Murphy.

Counsel argued that the issue of the employer’s duty to be fair must be assessed, given all the facts. He asked the board to consider Ms. Murphy’s seniority, background, professionalism, and experience when we considered whether she had been treated fairly when she was transferred to the policy position. He emphasized that Ms. Murphy was a senior manager in an important position in employment equity who was very serious about her career. She had a good reputation and was respected by her peers as hardworking and dedicated. Counsel argued that there was no dispute in the evidence that MTO was a difficult ministry to advance employment equity issues since it was male-dominated. There is also no dispute in the evidence that Deputy Minister Hobbs told Ms. Murphy when she first arrived in the employment equity position to be candid and open and encouraged her to make changes. He argued that the evidence of her peers was that she did have tact, that it isn’t fair to characterize her as a number or quota person.

Counsel submitted that Mr. Devooght gave evidence that there were two reasons for Ms. Murphy’s transfer in May of 1992. One reason was because of the deteriorating problems in the Employee Services branch including the grievance of Ms. Bryant. The other reason was because it was to provide a developmental opportunity for Ms. Murphy. Counsel argued that this transfer was dictated and that Ms. Murphy had no opportunity to turn it down. This, he argued, was in direct violation of ministry policies. He cited a document in evidence entitled ”Assessment of Potential Executives - Summary” prepared for Ms. Shirley Promislow, Manager, Human Resources Planning and Development Office, dated March 1990. He also cited the MTO’s “Management Leadership Program Management Leadership Requirements - Performance Characteristics”:

• Enabling and encouraging staff to actively take risks, and respective responsibility.

• Delegating with “hands off” support.

• Putting promises and changes into action.

• Recognizing staff potential and creating developmental opportunities consistent with their needs and those of the organization.

• Promoting an organizational climate that encourages excellent performance.

• Participating in formal and/or informal mentoring relationships.

• Recognizing the need for change.

• Promoting change with involvement and consideration of stakeholders.

• Maintaining flexibility and adaptability within staff units and/or teams.

• Planning and change process.

(Emphasis added by grievor’s counsel.)

In this Management Leadership Program document it states “The ministry is committed to creating a work environment which is equitable, non-discriminatory and conducive to productivity, self-development and career advancement.” Counsel also cited and quoted from the ministry’s Management Identification and Development Program document prepared May 30, 1990, and quotes from the Staffing Principles as follows:

Recognition that employees’ career aspirations and development needs should be considered in achieving the ministry’s long-term goals. Selection, promotion and career development of employees based on assessment of individuals’ skills and abilities relative to the requirements of the work as well as on broader and longer term organizational needs and values.

Counsel argued that the way Ms. Murphy was transferred to the Policy Branch completely failed to meet the principles identified above. Ms. Murphy was not given a performance review while she was at MTO and she testified that there had been little discussion about her future career prospects and development. Counsel argued that despite Mr. Devooght’s advice to Ms. Murphy that the earlier transfer from Employment Equity to the position of Manager of Employee Services was in her best interests, the evidence showed that it was not, in fact, in her best interests. Ms. Murphy had expressed concern about the earlier transfer as well, thus it was not surprising in Counsel’s submission that Ms. Murphy was more concerned about the transfer to the Policy position. Ms. Murphy was convinced that the transfer to the Policy position was, in fact, a serious setback to her career, to her status and to her reputation. Counsel argued further that once she took the position in Policy, Ms. Murphy’s concerns increased because of the poor physical surroundings, lack of furniture, and, more particularly, the lack of support staff.

Counsel submitted in closing “that it is patently clear that the May 25, 1992 reassignment was an important decision that significantly affected Ms. Murphy’s career.” Whatever the potential opportunities inherent in this position, Ms. Murphy’s assignment to the Policy branch was against her wishes. The move was inconsistent with documented requests/preferences which the MTO had or should have had on file. Subsequent events bore out some of the concerns which Ms. Murphy expressed herself. The decision to transfer Ms. Murphy was taken unilaterally, for reasons that were not initially disclosed to the grievor. The grievance should be granted in Counsel’s submission for these reasons.

Submission by the Grievor that the Decision to Transfer was One of a Series of Discriminatory Acts Against Ms. Murphy

Counsel argued that the failure to follow ministry policies on promotion and transfer of employees was not just mismanagement. He argued that the decision was because of the personal antagonism of Mr. Devooght and Mr. Mealing which grew as a result of Ms. Murphy’s efforts to advance employment equity at MTO. He argued that it grew out of Mr. Devooght’s view of employment equity as a numbers game, and his view of Ms. Murphy as dogmatic about employment equity. He argued further that it was aggravated by the debate between Mr. Smeaton and Ms. Murphy as to who should be investigating complaints of sexual discrimination or sexual harassment. He argued that Mr. Smeaton’s use of the term wacko with regard to employment equity advocates should have been stopped by Mr. Devooght. Mr. Devooght did nothing about the Bankroft incident, the Putnam Weight Scale incident, and two sexual harassment cases that were reported to Ms. Murphy. He argued that Mr. Devooght did nothing when Mr. Kelly told a sexist joke at a conference and some weeks later stated that he would like to tell a similar joke but could not because Ms. Murphy was in the room. Counsel argued that Mr. Devooght did nothing to get the message out in the ministry that such comments were not appropriate. Although he reported the incidents regarding Mr. Kelly to the Deputy Minister, he did not communicate this to Ms. Murphy. Counsel argued that the reason Mr. Devooght did nothing more was because he had concluded to himself that Ms. Murphy was a pain in the neck. These attitudes, he argued, coloured what he did and how he acted.

He argued that Mr. Devooght and Mr. Mealing, who were mainly responsible for recommending the transfer, were both biased against Ms. Murphy. He pointed to evidence that Mr. Mealing left a meeting with Ms. Murphy and the Deputy Minister, Ms. Jacobsen, and referred to them both as “rampaging feminists.”

In summary, Counsel submitted that Ms. Murphy went about her job as Employment Equity Manager with enthusiasm and dedication. While initially she was encouraged to be candid and proactive by senior management, eventually she was seen as an unwanted and resented employee. He argued that while her efforts and approach were received well by many, she inevitably encountered resistance and, at times, hostility. Counsel stated Ms. Murphy was “a critical and persistent advocate of change in and re-evaluation of the MTO’s employment equity initiatives. Unfortunately, in the persons of Smeaton, Devooght, and Mealing, Murphy did not find or receive personal support.” Thus Counsel argued that Ms. Murphy’s second grievance objecting to the transfer of May 25, 1992 on the broader grounds that it was discriminatory should also be allowed.

Submission of the Grievor on the Third Grievance

Counsel argued that it was not for the board to adjudicate the Bryant grievance. However, it was Mr. Devooght’s handling of the Bryant complaint and grievance which he argued demonstrated an unfair, illogical and inappropriate treatment of the problem. Counsel argued that the evidence showed that the Employee Services Office had had operational difficulties before Ms. Murphy’s appointment as manager. According to Ms. Murphy’s evidence, initially Mr. Devooght indicated that she was doing a good job in her new assignment.

Ms. Murphy’s chief complaint was that Mr. Devooght responded to Ms. Bryant’s WDHP complaint by trying to mediate a settlement between Ms. Murphy and Ms. Bryant. He set up a meeting scheduled for two hours and gave Ms. Bryant an opportunity to describe her complaint about Ms. Murphy in detail. Ms. Bryant used up the whole two hours and when the meeting was adjourned Ms. Murphy had had no opportunity to respond or discuss any of the complaint. It wasn’t until six weeks later that the meeting was resumed. This evidence, coupled with the handling of the file throwing incident on March 17, 1992, in Counsel’s submission show the mishandling of the Bryant grievance/complaint.

Mr. Moore submitted that it was unfair that Mr. Devooght spoke with Ms. Bryant about a possible transfer to another position, when he did not consult with Ms. Murphy about a possible transfer. Counsel argued that even though the WDHP complaint of Ms. Bryant was rejected as unfounded, there still should have been an investigation into the complaint for Ms. Murphy’s sake. In Counsel’s view all of this supports a finding that the grievance against Ms. Murphy was handled inappropriately, and the grievance should be granted. Counsel stated that one would have expected Mr. Devooght to provide some support and assistance, or even some constructive suggestion on how to deal with the problem with Ms. Bryant. Thus this grievance should be granted.

Submission of the Grievor on the Competition Grievance

Counsel for the grievor argued that it was Ms. Murphy’s view that she had significant experience and expertise in employment equity and, therefore, it was unusual that she was not contacted for an interview for the position of Employment Equity Manager. Counsel argued that because the ministry was unable to produce the competition file, and given the ministry did not demonstrate that the competition was conducted fairly, this grievance ought to be granted. Counsel submitted that it was unrealistic to accept that Ms. Murphy’s exclusion from the competition at the screening level was unrelated to her historical difficulties with Mr. Devooght, Mr. Smeaton, and Mr. Mealing, given Mr. Mealing was on the interview panel. The memorandum to the FOI Coordinator stated that the reason Ms. Murphy did not receive an interview was because the panel had “agreed it was not in the interests of the ministry to have Ms. Murphy assigned the responsibility to implement the accelerated employment equity program.” Counsel argued that this statement was inconsistent with the evidence of Ms. Kelch who said a conscious decision was made not to have Ms. Murphy do the job because it was thought better not to have someone do the position twice.

Submission of the Employer on the Timeliness on the Second and Third Grievances

Counsel for the employer, Mr. Filion, argued that the grievances dated July 31, 1992 against the Assistant Deputy Minister and against the Director of Human Resources were filed beyond the time limits in the regulations of the Public Service Act R.S.O. c.P. and therefore should be dismissed. Section 44(1) of Regulation 977 requires:

Any person may present a complaint in respect of working conditions or terms of employment to his or her supervisor within fourteen days of his or her becoming aware of the complaint, and the person and his or her supervisor shall endeavour to resolve the complaint by informal discussion.

The employer acknowledged that the board has the authority to extend the time limits for filing a grievance, but argued that it can do so only when there are reasons to justify the delay. With regard to the second grievance. in Counsel’s view, the grievor had failed to meet the fourteen day requirement, filing the grievance more than seven weeks beyond the time limit. The third grievance specifically refers to the Director’s handling of Ms. Bryant’s grievance and harassment and discrimination against Ms. Murphy in December of 1991, March 1992, May 1992 and June 1992.

It is the employer’s submission that there is no reason for the board to extend the time limits for the grievor. Particularly with regard to the grievance against the Assistant Deputy Minister, Ms. Murphy had already filed a grievance dated May 29, 1992 with respect to the same subject matter, that is, the transfer to the special project. Finally, there is no reason for her failure to grieve in a timely manner against the Director. Thus both of these grievances should be dismissed on the basis of not being timely.

Submission by the Employer that the Fourth Grievance, the Competition Grievance

The employer argued that the board has previously held that where no effective remedy can be awarded a grievance is inarbitrable. Since the position of Employment Equity Manager is no longer in existence at the MTO, the remedy requested can not be granted and therefore the grievance is moot and should be dismissed. Alternatively, the employer argued that the decision not to give Ms. Murphy an interview for the position was fair, reasonable, not arbitrary, and there was no evidence of discrimination against the grievor. The burden of proof is on the grievor and she has not provided any evidence to satisfy the onus, in Counsel’s submission.

Submission of the Employer on the Transfer to the Policy Branch

Mr. Filion, argued that the alleged failure to follow policies and procedures for promotion and transfer, which are not mandatory, can not form the basis of a grievance. Counsel cited Turner-Lienaux v. Nova Scotia (Attorney General), (1993) N.S.J. #201 (N.S.C.A.) where the court held that the failure of the employer to adhere to government guidelines for job competitions was not grounds for complaint by an employee. The guidelines were not part of the employment contract, nor were they included in legislation governing the employee. Therefore the employer was not bound by them. Further, Counsel argued that there was nothing in the policies cited to the board that obliged the employer to consult with Ms. Murphy and get her consent before a new assignment. He pointed to the evidence of senior MTO officials like Ms. Kelch and Ms. Moore who testified that these policies were in the nature of guidelines and that, in fact, in their own personal experience they were often given very little input into a decision to transfer or re-assign them. Ms. Moore testified that transfers were often done with very little notice. Ms. Kelch testified that one was expected to take a transfer. The guidelines themselves note that while the ministry should recognize developmental needs of employees, decisions regarding staffing must be made according to the ministry’s needs and long-term goals. Selection and promotion of individuals is based on “assessment of skills and abilities relative to the requirements of the work as well as on broader and longer-term organizational needs and values.” Mr. Filion noted that transfers of employees have been found by the board to fall within the scope of working conditions and terms of employment; Kanga v. Ministry of Health (1986) P/0003/85 (Simmons) and Hough v. The Ministry of Community and Social Services (1994) P/0927/84 (Simmons). Counsel noted that the board will review non-disciplinary transfers, however to establish a breach of working conditions and terms of employment the grievor must establish that the transfer was arbitrary, discriminatory, unfair, or made in bad faith; A Grievor v. The Ministry of Health (1991) P/0014/90 (Springate).

Counsel argued that Ms. Murphy’s transfer was not for discriminatory, arbitrary or unfair reasons. He argued that the grievor was transferred for essentially two reasons. The first was a business opportunity: the ministry needed to fill a policy position for an important issue at the time for the government. The second reason was because the temporary assignment in Employee Services had not turned out as well as had been expected. The employer did not attribute any wrongdoing to the grievor for the difficulties and problems that were occurring in the Employee Services Department.

The transfer to the policy position was not only not discriminatory, unfair or arbitrary, it was made in good faith for bonafide business reasons. Counsel pointed out that this board has held that a transfer for the purposes of alleviating problems between staff was bonafide and legitimate. In Kanga, supra the board held that an employer was under no obligation to allow a poor work environment to continue rather than transfer an employee who did not wish to be transferred. Counsel cited The Ministry of Natural Resources v. OPSEU (1993) (McNabb) 1418/92 (Dissanayake) which held that the panel did not have jurisdiction to review an employer’s decision relating to a transfer unless there was a finding of bad faith.

Counsel argued further that in determining whether an employer has acted in bad faith the beliefs of the grievor should be given no weight. The grievor’s personal feelings, and the fact that she did not want the transfer, do not support a finding of bad faith; Clark v. The Ministry of Correctional Services (1990) P/0017/87 (Willes).

Counsel argued in addition that it is undisputed that Ms. Murphy received a 4.3% increase to her salary when she was transferred to the policy position, and that she was promoted to the higher classification of PEC-21. Counsel argued that the classification and salary increase indicate a promotion. He directed the board to the evidence of Ms. Moore, Ms. Kelch, Mr. Mealing and Mr. Devooght that the position in the Policy Branch was a much more important position than that of Manager of Employee Services. Since the government had identified aboriginal issues as a priority, the position presented an opportunity for Ms. Murphy to stand out in a high profile portfolio. Ms. Moore was of the view that these kinds of positions were often stepping stones to better positions. Counsel argued that the evidence that similar project managers went on to better and higher positions after their tenure as project managers supported the conclusion that this was a promotion. Counsel argued that there was ample evidence to support a conclusion by the board that the transfer was or could have been a progressive step in Ms. Murphy’s career development.

Mr. Filion submitted that the physical surroundings were not indicative of the importance of the position. He emphasized that Ms. Moore had testified that the Policy Branch was in the middle of significant changes at the time and very few people had decent furniture. Addressing the issue of lack of support staff, Mr. Filion pointed to the evidence that it was the norm in Corporate Policy Branch for managers to work with little or no support staff because of budgetary constraints, and because such positions were temporary.

Counsel argued that the transfer in September of 1991 from the employment equity position to the Employee Services Manager position was done as part of a significant reorganization of the Human Resources Branch, and that the grievor accepted this transfer without complaint at the time. Counsel argued that it is inappropriate now for the grievor to be asking the board to determine the merits of this transfer. Such a grievance is inarbitrable given the time limits for such a grievance expired ten months before her transfer to the Policy Branch on May 29, 1992.

Counsel for the employer argued that there was no evidence to support a finding that Ms. Murphy was not supported by Mr. Devooght. However, even if it was true, lack of support has been held not to be an arbitrable issue, as found by the board in Religious Hospitalers of St. Joseph of Hotel Dieu of Kingston v. OPSEU, Local 465 (1995) 1995 CanLII 18428 (ON LA), 50 L.A.C. (4th) 225 (Simmons).

The Employer’s Submission on Discrimination

In response to the grievor’s argument that the decision to transfer her to the Policy Branch was the culmination of a series of acts of discrimination against her, Counsel argued that there is no evidence to find that the grievor had either been discriminated against or harassed, contrary to the Human Rights Code R.S.O. 1990 c.H-9 (the Code). In reviewing some of the evidence which the grievor relied on to support her allegations of harassment and discrimination, Mr. Filion submitted that the evidence that the grievor disagreed with Mr. Devooght’s and Mr. Smeaton’s view of which department should investigate sexual harassment in the ministry was not evidence of harassment. The evidence was also clear, he submitted, that the grievor refused to accept Mr. Devooght’s decision and continued to raise the issue. This then became a turning point in an otherwise collegial relationship with Mr. Smeaton, and the beginning of the deterioration of the working relationship which ended with the “Berlin Wall.”

Counsel for the employer addressed some of the specific incidents that the grievor relied on to support her allegations of sexual harassment. Essentially he argued that the hostility between Ms. Murphy and Mr. Smeaton, the allegations that Mr. Devooght made a comment referring to “heavies,” that Mr. Devooght would not approve her standing for President of the Employment Equity Council, and other incidents of a similar nature did not constitute harassment. He submitted that the evidence of Mr. Devooght is clear that he did take action to deal with Ms. Murphy’s complaints about Mr. Kelly on the two occasions that Ms. Murphy complained. Ms. Kelch acted when she was informed about the Putnam Scale incident, directing that the sign be removed and making it clear that it was not acceptable.

Counsel submitted that the evidence is clear that Mr. Mealing and Mr. Devooght acted in good faith and without any discriminatory motives in deciding to transfer Ms. Murphy to the Policy Branch: the grievor’s belief that she was harassed or discriminated against, or the fact that she was unhappy with the decisions to transfer her, do not make it harassment or discrimination.

Employer’s Submission on the Bryant Grievance

Counsel for the employer noted that this board has held that the employer has a duty of fairness to a person who is the subject of a grievance: DaSilva v. Ministry of Health (1996) P/00070/93 (Leighton). Counsel argued that the employer had acted fairly and in good faith towards the grievor while she was the subject of Ms. Bryant’s complaint and grievance. Counsel emphasized that Mr. Devooght’s evidence for not reviewing certain complaints from individuals in Employee Services managed by Ms. Murphy was reasonable. These people were prepared to put their complaints in writing, but did not want their names disclosed. The complaints had to do with management style and Mr. Devooght spoke to Ms. Murphy about the matters generally. Counsel pointed out Mr. Devooght’s evidence that he thought it would be counter-productive to engage Ms. Murphy in a detailed rebuttal of these complaints.

Counsel argued that in an attempt to mediate and resolve the problems with the grievor and Ms. Bryant, he set up a meeting for December 12, 1991. Because of time constraints, Mr. Devooght had to end the meeting without giving Ms. Murphy an opportunity to respond to the long list of complaints that Ms. Bryant reviewed during the meeting. However, Mr. Devooght set up a meeting for Ms. Murphy to respond as soon as it was possible after Christmas. Counsel argued that Mr. Devooght attempted to be as fair as possible to Ms. Murphy, and pointed to the evidence that as soon as he had been notified by Management Board that Ms. Bryant’s WDHP complaint had been rejected, he notified the grievor. Thus in his submission there was no reason to investigate the complaint. Ms. Bryant’s grievance did not allege harassment or discrimination, but complained about an unjust reprimand because of an incident which occurred on March 17, 1992 - the file throwing incident.

Counsel for the grievor had argued that the evidence that Mr. Devooght initially told Ms. Murphy to tell Ms. Bryant to go home and take a few days of leave with pay before her vacation, which he subsequently retracted with Ms. Bryant, was an example of how Mr. Devooght undermined Ms. Murphy. Counsel for the employer argued that this whole incident had been blown out of proportion. While it was Mr. Devooght’s suggestion to Ms. Murphy that Ms. Bryant go home for a few days as a cooling off period, when Ms. Bryant came to him to complain that it would look like discipline, he recognized that and told her that it was alright to stay. He was attempting to be sensitive to Ms. Bryant and advised her to avoid contact with Ms. Murphy. Counsel submitted that Mr. Devooght was trying his best to deal with a difficult problem between two employees. Even if, in retrospect, it might have been handled differently, he argued that Mr. Devooght had not committed an offence.

Counsel asked the board to dismiss all four grievances.

DECISION

The Grievances About the Transfer to the Policy Branch

The onus is on the grievor to prove that a non-disciplinary transfer was arbitrary, discriminatory, unfair, or made in bad faith in order to establish a breach of working conditions and terms of employment. Having carefully considered the evidence and submissions of the parties, we have decided that the grievor has not satisfied this onus. We are persuaded that the grievor was transferred for two legitimate reasons. The first was a business need of the ministry. The ministry needed a person with experience in aboriginal issues to be Project Manager, responsible for developing a corporate policy framework for aboriginal issues for MTO. Ms. Moore testified that such policy positions in special projects that are important for the government of day are often stepping stones to more senior appointments. Since Ms. Murphy had experience in aboriginal issues, and experience in both the federal government and the OPS, she was an ideal candidate. She was promoted to a higher classification and received a raise in pay.

The second reason for Ms. Murphy’s transfer was that Ms. Murphy was having difficulty managing employees in Employee Services. There was conflicting evidence as to whether or not this particular unit had had problems before Ms. Murphy arrived, but the evidence was definitely clear that there were difficulties with many employees in the department during her tenure as Manager. We find that it is most likely that there were problems in this unit before Ms. Murphy became the manager. While Mr. Devooght counselled Ms. Murphy to slow down in her changes to the department and be more conciliatory, there was no evidence that he faulted her for the difficulties in this unit. An employer is not obliged to allow a poor work environment to continue rather than transfer an employee out of the situation - even if the person does not wish to be moved. (Kanga, supra). We are of the view that the employer’s second reason for moving Ms. Murphy away from a discordant work situation was legitimate.

There is no significance in the fact that Ms. Murphy was not initially told that this was one of the reasons for her transfer. Although the board is of the view that a more candid approach to the transfer may have avoided Ms. Murphy’s sense that she was being treated unfairly.

We are not persuaded that the employer made the decision to transfer Ms. Murphy for discriminatory reasons as argued by the grievor. The only evidence forwarded to support this position is evidence of events which occurred primarily during Ms. Murphy’s tenure as Employment Equity Manager and her relationship with Mr. Smeaton while she was Employment Equity Manager and after she became Manager of Employee Services. We are not persuaded that the events relied on are connected to the decision to transfer Ms. Murphy to the Policy Branch. We are also of the view that the incidents relied upon do not amount to sexual harassment or discrimination by the employer under the Human Rights Code. The employer cannot be held responsible for what amounts to a lack of collegiality between Mr. Smeaton and Ms. Murphy. Mr. Devooght was not fully aware of how far the relationship had deteriorated, but when he received a clear complaint from Ms. Murphy, as he did when she complained about the “Berlin Wall,” he acted and he acted quickly. He directed Mr. Smeaton to remove the wall.

Mr. Smeaton’s use of the word ‘wacko’ was wholly inappropriate and we are of the view that he should have been directed not to use it in conjunction with employment equity advocates, or any other colleague for that matter. It was Mr. Smeaton’s evidence that he used the word to refer to anyone who took an extremist position or was over zealous to a fault. There is, however, no evidence before the board that he ever called Ms. Murphy a wacko. Further, there is no evidence before the board that the grievor ever asked him not to use the term. In any case, Mr. Smeaton was a peer of Ms. Murphy and had no responsibility for the advancement of her career and certainly nothing to do with the decision to transfer her to the Policy Branch.

That Mr. Devooght referred to “heavies,” if he did, and interrupted Ms. Murphy in a meeting is not convincing evidence that he was sexually harassing her.

The incidents with Mr. Kelly were of a serious nature. The evidence of the comment about the Deputy Minister and the joke of wanting to pull out a condom when he was in a meeting with five or six female executives is clearly wrong. By singling out Ms. Murphy at the second conference and saying he’d like to tell a dirty joke if she would leave, he is sexually harassing Ms. Murphy. Ms. Murphy complained about both the incidents involving Mr. Kelly and Mr. Devooght did take action immediately. It was a tricky situation for Mr. Devooght since Mr. Kelly was, at the time, an Assistant Deputy Minister, significantly senior in position to Mr. Devooght. Mr. Kelly reported to the Deputy Minister. But Mr. Devooght went around the chain of command directly to the Deputy Minister to report the two incidents. He did this in two meetings after each incident. In our view his action demonstrated his concern for the seriousness of the incidents. Once it was reported to the Deputy Minister it was up to her to take whatever action she thought was appropriate. It was not up to Mr. Devooght at that point to send memorandums to staff condemning the behaviour of an employee considerably senior to himself. We think it is unfortunate that he did not communicate to Ms. Murphy that he had acted without going into details.

Some of the other incidents put before the board to prove that Mr. Devooght did not support the grievor also point to the difficulties facing an Employment Equity Manager in a ministry that has been previously dominated by male employees. When visiting the Putnam Weigh Scale, Ms. Murphy was confronted with a sign that said “Sexual harassment at this workstation will not be reported. However ... it will be graded!!!” Ms. Kelch acted to order the sign removed and inform employees that this was not acceptable. The incident reported in the evidence where Mr. Mealing, on leaving a meeting with Ms. Murphy and Ms. Jacobsen, referred to them both in anger as “rampaging feminists.” Mr. Mealing acknowledged that this comment was inappropriate. This incident occurred while Ms. Murphy was Employment Equity Manager, and she did not make any formal complaint.

Ms. Murphy’s complaints about not being informed as to the progress of others who had complained of sexual harassment, goes back to the debate about which office should handle such cases. Mr. Devooght had decided Mr. Smeaton’s office should handle these. In view of confidentiality issues, there is no merit in the grievor’s complaints. She had no right to be informed. We are also of the view that her transfer from Employment Equity to Employee Services was reasonable. It was done as part of a major reorganization of the Human Resources Branch. The assignment was to be temporary. Ms. Kelch testified as remembering that one of the reasons for it was to give Ms. Murphy experience managing people. It was also Ms. Kelch’s evidence that Ms. Murphy was, in her view, burnt out. Thus, there is nothing in the evidence for us to conclude that this transfer was part of a discriminatory pattern against Ms. Murphy.

The incidents were tendered to the board to prove that the transfer to the Policy Branch was discriminatory. We are not convinced that these incidents support a finding of an ongoing pattern of discrimination that culminated in a decision to transfer Ms. Murphy out of Human Resources to the Policy Branch. Except for the one incident with Mr. Mealing, there is nothing to connect any of these incidents to the decision makers. Given that these incidents happened at least ten months before Ms. Murphy’s transfer to the Policy Branch, we cannot conclude that they are connected to that decision.

Counsel for the grievor argued strenuously that it was personal animosity for Ms. Murphy, because of her role as Employment Equity Manager, that led Mr. Devooght and Mr. Mealing to transfer her out of Human Resources. We are not persuaded that there is any evidence to support such a conclusion. While it was clear that Mr. Smeaton disliked and mistrusted Ms. Murphy, there was no evidence that Mr. Devooght was antagonistic to her. Mr. Mealing had very little contact with her. Further, senior managers of MTO, Ms. Moore and Ms. Kelch, testified that both men were supportive and respectful of employment equity.

Counsel for the grievor made much of the fact that Ms. Murphy’s office in the Policy Branch was used for storage before she arrived, and that she had inadequate furniture. Ms. Moore’s evidence on this was telling. She was not concerned about elegant office space. She was clearly of the view that for a temporary policy project what mattered was that people worked closely together. Given the lack of space, decent furniture, and resources often given to such projects, she said they had to make do. She testified that she did her best to assist Ms. Murphy in getting appropriate equipment and support staff. We are satisfied that everyone who worked on special projects was working under similar conditions to Ms. Murphy.

Counsel for the grievor argued that the second main flaw in the transfer of Ms. Murphy to the Policy Branch was that the employer did not follow its own policies and, therefore, treated Ms. Murphy in an unfair manner. We are not persuaded that she was treated unfairly. Counsel for the grievor acknowledged that Ms. Murphy did not have the right to “veto” the transfer. There is nothing in the guidelines which requires the employer to discuss transfers with an employee before the decision is made, though it is clearly a good management practice to do so. Had it been done here, Ms. Murphy may not have felt so aggrieved, and so worried that her career was being sidetracked. We heard evidence from senior MTO employees such as Ms. Kelch and Ms. Moore that transfers were often made with very little notice to them and without prior consultation. Ms. Kelch testified that one was expected to take a transfer and that she put her trust in senior people who advised that a particular assignment was for her career advancement. There is also clear recognition in the guidelines that the business need of the ministry is paramount. We are persuaded that Ms. Murphy was treated no differently than other senior people in MTO, when she was transferred to the Policy Branch.

The Bryant Grievance

This board has held previously that the employer owes a duty of fairness to an employee accused of a breach of the Code and whether the employer has been fair will depend on the facts of the case; DaSilva, supra. Having carefully considered the evidence presented to the board, we cannot conclude that there was a breach of the employer’s duty of fairness.

It was reasonable for Mr. Devooght to treat Ms. Bryant’s complaint differently to the other complaints he had received. Ms. Bryant complained in writing to Ms. Murphy, copying Mr. Devooght. He decided to take a mediative approach. Again this was reasonable. He did not do it well. It is not clear why he didn’t follow up with Ms. Murphy on the performance contract that she had prepared for Ms. Bryant. This points to bad management rather than any ulterior motive that would lead to a finding of unfairness to Ms. Murphy. The most significant incident occurred after Ms. Bryant was told by Ms. Murphy to go home on paid leave for a few days before she was to start her vacation. Ms. Murphy did this on the advice of Mr. Devooght who, when confronted by Ms. Bryant, told her she did not have to take the leave. He communicated this to Ms. Bryant without first telling Ms. Murphy. Mr. Devooght handled this situation very badly. While the board recognizes he was dealing with a difficult situation, he did not use good management practices or show good judgment. However, we cannot conclude that there was a breach of the duty to be fair to Ms. Murphy in handling the Bryant harassment complaint.

This incident was not part of the harassment grievance, but it lead to discipline of Ms. Bryant and her subsequent discipline grievance. Mr. Devooght had nothing to do with the harassment complaint under the WDHP after it was formally filed and went to the WDHP unit for review. When the WDHP office rejected Ms. Bryant’s complaint as not grounded in the policy, finding that the allegations did not involve any of the enumerated protected grounds, Mr. Devooght informed Ms. Murphy immediately.

The delay in this case was not unreasonable. The complaint went to the WDHP in March and was rejected in May. Once it was rejected by the WDHP unit there was no need for an internal investigation of the allegations against Ms. Murphy. The board understands the grievor’s need to clear her name and has previously recognized that even the accusation of a breach of the Code can be damaging to an employee, but had the employer done an internal investigation after the WDHP had said there were no grounds, then that may well have been evidence that the employer was being unfair to Ms. Murphy.

The Competition Grievance

The onus is on the grievor to establish that the competition was conducted in an arbitrary, discriminatory, or unfair manner or the employer made decisions regarding the applicant in bad faith or that it was so flawed that the board will order a new one. Kehoe v. Ministry of Transportation (1982) P/0914/82 (Simmons). The board has also held that there is no inherent right “for a candidate to demand an interview with the selection committee”; Collaci v. Ministry of Consumer and Commercial Relations (1982) P/0912/82 (Simmons).

The evidence before us regarding the decision not to give Ms. Murphy an interview for the position of Employment Equity Manager in 1992 is that the employer considered her application and decided that it would not be in the best interests of the ministry to have Ms. Murphy do the same job twice. There is no evidence before the board to suggest that the decision not to interview Ms. Murphy was made in bad faith or was discriminatory, unfair or arbitrary. That Ms. Murphy thought she was qualified and should have got an interview is irrelevant.

There was evidence that the competition file was lost. Despite a thorough search it was never found when the grievor’s counsel asked for it as part of disclosure. This is potentially problematic. The grievor had a right to its disclosure. The grievor’s Counsel asked us to infer as a result of the missing file and the evidence of a pattern of discrimination against the grievor that the decision not to grant her an interview was discriminatory. We cannot do this. There is no evidence to support a finding that Mr. Devooght or Mr. Mealing discriminated against Ms. Murphy. We have found no pattern of discrimination or harassment against the grievor. There were no incidents which occurred when Ms. Murphy was Manager of Employee Relations for almost ten months before her transfer to the Policy Branch.

Second, Ms. Kelch gave evidence that the competition file only referred to the five people who were interviewed. She said there was nothing in it on the employer’s decision not to give Ms. Murphy an interview. Ms. Kelch gave a credible reason for not giving Ms. Murphy an interview: she testified that it was a conscious decision by the employer not to do so. It was not arbitrary it was thought out. Thus there is no evidence in the record to support a finding of bad faith or discrimination here.

Having decided on the merits of the case to dismiss the competition grievance, there is no need to address the employer’s argument that the grievance is moot. Likewise, having decided that the second and third grievances are without merit, we shall not address the timeliness objection raised by the employer.

In conclusion, for the reasons noted above, we hereby dismiss all four grievances before the board.

Dated at Toronto this 27th day of October, 1999.