P-2004-2738
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Nancy Marshall
Grievor
- and -
The Crown in Right of Ontario (Ministry of Health and Long-Term Care)
Employer
BEFORE
Kathleen G. O’Neil
Vice-Chair
FOR THE GRIEVOR
Nancy Marshall Eugene Marshall
FOR THE EMPLOYER
Rosalyn Principe Counsel Ministry of Government Services
HEARING
September 20, 2005.
Decision
This decision deals with the employer’s preliminary motion that the grievance filed by Nancy Marshall should be dismissed without a hearing on the merits, as untimely, moot and/or outside the jurisdiction of the Public Service Grievance Board (referred to below as the Board or the PSGB), both substantively and as to remedy.
Background
The grievor wrote a letter of complaint to her Deputy Minister on June 24, 2003, and filed this grievance on July 31, 2004, alleging that her manager, Irene Medcof, engaged in harassment and created a poisoned work environment, and that this was condoned by her Director, Marnie Weber. In order to facilitate the discussion of the allegations below, they are summarized here, in the order used by the grievor in her application to the Board:
- Workplace harassment and poisoned work environment
It is alleged that the grievor’s manager subjected her to constant negative feedback and vindictive harassment. The specific matters complained of are as follows:
A: The manager breached OPS guidelines for appropriate use of voicemail while the grievor was on vacation in July, 2001 by giving her voice-mail code to a subordinate whom the grievor was in the process of documenting.
B. In and around December, 2001, the manager is alleged to have failed to address problems associated with the monthly variance reports, and together with the Financial manager, constantly changed their minds about who should produce them, and to have failed to give the grievor adequate support to prepare them.
C. It is alleged that her manager’s summary of a performance review meeting dated January 11, 2002 is not factually correct, as the problems for which the grievor was criticized were the result of structural problems in the organization, including a requirement that she supervise employees in two different locations.
D. The manager constantly interfered and did not allow the grievor to do her own job as manager. For example, in or around January 2002, the grievor complied with the demotion of one of her subordinates at the manager’s request, although she did not agree with the demotion.
E. In February 2002, the grievor’s manager would not listen to her as to whose responsibility a fire drill was, demonstrating a lack of knowledge of government policies and procedures, in the grievor’s view.
F. The manager’s summary of a May 28, 2002 performance review meeting is not factually correct as it does not record the grievor’s input or her statements disputing the manager’s version. The grievor believes that the manager’s comments are vindictive and overly negative, and disputes the substance of many of the criticisms contained in the manager’s notes.
G. The grievor alleges that others have been subjected to her manager’s constant harassment, and provided the report of an investigation into another employee’s complaint of harassment and discrimination as an example. The grievor was one of the people interviewed in the investigation of that employee’s complaint, and says that when she told the investigating manager that she feared reprisals if she was frank, she was told that it was unlikely she would have to return to Toronto Region as other positions were opening up. The grievor notes that the complaint of the other employee was dismissed as to racial discrimination issues, but that the investigation report did not deal with the harassment and poisoned work environment issues.
H. The grievor alleges that her manager could not function in a team environment as exemplified by the fact that she continued to insist on setting up a meeting without providing information the grievor had requested prior to a meeting being set up.
I. In January, 2003 the manager contacted the grievor to proceed with the performance review which had not been finished in May, 2002, because the grievor went off on a secondment. The allegations set out in paragraph F above pertain to this aspect of the complaint as well.
The grievor complains that she was forced to return to her home position after her secondment ended on July 16, 2004 even though she could not return to “this dysfunctional and unhealthy workplace environment” for medical and health reasons. Further, it is alleged that the grievor never received a response to her complaint dated January 24, 2003, although Ms. Weber had been designated to respond.
Her request to be waived into an AGM 18 position dated January 24, 2003 was not responded to.
Those are the allegations which are challenged in the preliminary objections which are dealt with in turn below.
Should the matter be dismissed for delay?
The employer maintains that all the events complained of took place between 2001 and 2003, too long ago to be the proper basis of a grievance filed in 2004.
Counsel for the employer situated her request for dismissal within the ambit of previous Board decisions on delay, which have consistently held that the decision in each case is a matter for the discretion of the adjudicator after considering the reason for the delay, its length, the nature of the grievance, whether there is a reasonable explanation for it, and its effect in terms of prejudice to the other party. It was submitted that some kind of compelling evidence would be necessary to justify a delay of over one year after the last event complained of, and over three years after the first. It is not sufficient, in the employer’s view, that the grievor did nothing to preserve her rights while she pursued other avenues to resolve her complaints. Further, counsel asserted that the length of time that has elapsed prejudices the employer in the presentation of its case, particularly with regard to conversations that may or may not have taken place in the period 2001 to 2003.
Cases cited by employer counsel dealing with delay were: Clayton and Blais and The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) PSGB #P/6/99, P/12/99 (Leighton), Campbell and The Crown in Right of Ontario (Ontario Realty Corporation) PSGB #P/0032/99 (Leighton), Dubash and The Crown in Right of Ontario (Ministry of Health) PSGB #P/0010/90 (Willes), Coccia and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB #2003-3552 (Leighton) as well as those of the Crown Employees Grievance Settlement Board (GSB) such as, OPSEU (Szabo) and The Crown in Right of Ontario (Ontario Realty Corporation) GSB #1811/98 (Herlich), OLBEU (Wicken) and The Crown in Right of Ontario (Liquor Control Board of Ontario) GSB #2216/97 (Knopf).
In Campbell, cited above, the Board held that one must first consider when the incident, or event which gave rise to the complaint came to the attention of the grievor. If it is filed beyond the fourteen days stipulated in s. 34(1) of Regulation 977 under the Public Service Act, the Board must then consider whether to exercise its discretion to extend the time limit. Where a grievance claiming moving expenses was filed some two and a half years later, and the only reason given was fear of reprisal, it was considered too late. There was also evidence of prejudice to the employer as people who would be needed as witnesses had left the government.
In Blais and Clayton grievances claiming stand-by pay were dismissed where the grievors waited 16 and 18 months respectively to grieve, because they believed the employer was considering their requests. The Board held that unless there is a clear agreement between the parties that no formal grievance need be filed while the employer considers the claim, grievors must preserve their rights by filing a timely grievance. Similarly, in Coccia, where discipline was not grieved until seven months later, the grievance was dismissed for delay. The grievor had filed an application for judicial review of the employer’s actions during the disciplinary process, and only grieved when that avenue was unsuccessful. Similarly, in the GSB’s decisions in the Szabo and Wicken grievances, reliance on legal advice to pursue another avenue before grieving was not considered a sufficient reason for a lengthy delay, despite the fact that Wicken was a discharge case. In Dubash, the grievor pursued his complaint both by way of grievance before the PSGB and before the Human Rights Commission, and was found to be untimely by both tribunals, where the reason for the delay included making sure he had a strong case and fear of intimidation from his supervisors.
What is the length of delay in filing this grievance? The grievor maintains that there was no delay, that the grievance was filed in a timely way, as shown by the fact that she grieved as soon as she knew she would be returned to her home position, and at a point when she had not received a response to her internal complaint letter. Further, it is said that there is an ongoing problem with harassment as shown in a report dated September 30, 2002. This report deals with an investigation into a harassment complaint by another employee against the same manager and does not deal with the incidents complained of by the grievor. As well, the grievor maintains that the facts should be considered ongoing as she has not been given a permanent position in another office. She explains the lack of an earlier grievance by the fact that she was off on various secondments.
To summarize then, the specific incidents alleged to constitute harassment from the grievor’s manager range from July 2001 to January 2003, and were not grieved until July 2004. The main reasons given for the delay in grieving those earlier incidents are that the grievor was off on secondment and she thought her concerns were being dealt with. When she learned that she was going to be returned to her original position despite her request not to be, she filed her grievance. These are the kinds of reasons for delay that have been considered insufficient in the Board’s jurisprudence to extend the fourteen-day statutory time limits for a period as long as the year and a half involved here. Even though it is understood that managers may be reluctant to grieve, periods of the length involved here have been considered just too long a time, given the difficulty of litigating facts that have occurred many months earlier, and the importance of expedition in dealing with workplace problems. And although issues of harassment represent serious workplace issues, there is nothing about the nature of this particular complaint, or any difficulty in knowing the facts giving rise to the grievance, that would set it apart from the approach normally taken by the Board to delays of this magnitude. See Jones and The Crown in Right of Ontario (Ministry of Correctional Services) PSGB #P/0009/92 (Willes) (also referred to below as to the mootness issue) for an example of a grievance involving an allegation of harassment which was not heard by the Board because it had not been grieved in a timely manner.
At the hearing, submissions were made on behalf of the grievor to the effect that problems still continue in the present, and that they are condoned by the Director. However, these undetailed allegations are not part of the grievance submitted in 2004, which is the matter before the Board, and the subject of the preliminary objections being considered here.
The grievor’s submissions were to the effect that the delay in grieving the earlier incidents should be considered differently because she filed her grievance once she was told that her secondments would be over and she would be returning to her home position. In this regard, it is important to underline that the last of the specific incidents complained of occurred in January 2003. The grievance refers to no incidents between then and July 2004 to suggest that the harassment had somehow continued even though the grievor was not working for the same manager. In these circumstances, there is a clear gap of approximately 18 months, which is not erased by the news that the grievor was to be returned to her home position.
In her application to the Board, the grievor lists the fact that she was forced to return to her home position as an allegation separate from the earlier incidents, and it was similarly included in the grievance letter which went to the Deputy Minister on July 31, 2004. The time lapse between being notified that she would return to her home position as Office Manager in the Toronto Region Office, and the grievance is not too long; that portion of the grievance is timely, although it does not make the earlier incidents timely once again.
As the grievor had not yet returned to her home position when she filed the grievance with the Deputy Minister, employer counsel argued that it might have been premature to grieve about the return to her home position, especially since the manager about whom she had earlier complained had left that workplace in April 2003. However, given that the date of the grievor’s return to her home position had passed by the time she filed her application with the Board, it would be unduly technical to dismiss the matter as premature.
In this context, and in response to the employer’s submissions about the fact that Ms. Medcof was no longer the grievor’s manager when the grievor was returned to her home position, it is important to underline that for the purpose of the preliminary motion, the Board assumes that the facts alleged by the grievor are true and provable, and waits until any evidence is heard to judge its weight. Thus, the Board assumes, without finding, that the grievor may be able to prove that there was a health reason which meant that she should not have returned to her home position, and that the employer was in breach of a term or condition of her employment when it returned her nonetheless. Any issues and argument the employer may raise as to that evidence, including its weight, are left to a later date.
In the result, it is my view that the grievance was filed too late in regards to the incidents between 2001 and 2003. The delay of a year and a half after the latest incident is too much of a delay to permit the matter to go forward as to those issues. On the other hand, the grievance is timely in regards to the allegation that the grievor should not have been forced to return to her home position in the summer of 2004 because of her health.
Are the subject matter of the grievance and the remedies requested within the jurisdiction of the Board?
Although it is not strictly necessary, given the decision above on delay, in that the employer did not challenge the Board’s jurisdiction to hear the portion of the grievance relating to the grievor’s return to work, it is worth addressing the jurisdictional issues as well, in light of the extent of the submissions made by the parties on that issue. Employer counsel submits that performance reviews and evaluations are at the heart of the grievance, as disclosed clearly by several of the remedies requested, such as the removal and shredding of all documents related to her manager’s notes on her performance, as well as a properly conducted and unbiased performance appraisal and back merit pay with interest.
It was submitted on behalf of the grievor that she was not seeking to dispute the case law that says that evaluations cannot be arbitrated at the Board, but that it was necessary to deal with comments contained in the notes of the appraisal meetings that were of a fraudulent nature. Further, it was submitted that the manager’s approach did not conform to OPS policies on the method of performance appraisals. Further it is said that the evaluations are examples of harassment, and it is this fact that gives the Board jurisdiction over the evaluation portion of this grievance. For instance, it is said that the manager’s omission of a number of the grievor’s duties in the performance review, shows the bias of the manager towards the grievor.
Concerning allegations against the Director, it is the grievor’s position that the Director would have known what the manager was proposing in terms of compensation, as she does not act in isolation. Replying to the employer’s submission that there are no particulars of any specific actions alleged against the director, the grievor refers to what she considered the very problematic dual reporting situation under which Ms. Marshall, as the Office Manager, managed the administrative support staff, as did the unit managers, who respond to direction from the Director.
In Tyrell et. al. and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB #P/2003-2687 (Carter), the Board recently once again made clear that grievances relating to evaluation of, or pay for, performance are outside the jurisdiction of the Board because of the Board’s mandate set out in Ontario Regulation 977, R.R.O. 1990, as amended by Ontario Regulation 59/03 which includes Section 31(4) as follows::
No grievance shall include a complaint in respect of the following matters:
A complaint that a position should be classified,
A complaint that a position is in the wrong classification.
A complaint relating to a release from employment under
subsection 22 (4.1) of the Act,
- A complaint regarding the method of evaluating an employee’s
performance.
- A complaint regarding the evaluation of an employee’s
performance.
- A complaint regarding the compensation provided or denied to
an employee as a result of an evaluation of his or her performance.
Because of paragraphs 4, 5 and 6 above, all the portions of this grievance that have to do with evaluation of the grievor’s performance, or pay flowing from that evaluation, are outside the jurisdiction of the Board. The Board was referred to no authority suggesting that the fact that the grievor believes her evaluations from Ms. Medcof to be so unfair as to constitute harassment could confer jurisdiction on the Board in the face of such specific statutory language. In the result, the portions of the grievance relating to Ms. Marshall’s disagreement with her performance reviews of January 11, 2002 and May 28, 2002, as well as the January 9, 2003 Performance Development Plan and Appraisal form are dismissed as outside the jurisdiction of the Board. Similarly, the portion of the complaint which deals with the manager’s attempts to schedule an appraisal meeting in January 2003 prior to forwarding information requested by the grievor relates to the method of evaluation, and is also therefore outside the jurisdiction of the Board. The remedies requested such as the removal and shredding of all documents/correspondence related to the manager’s notes on her performance, and “a properly conducted and unbiased performance appraisal (Max Plus Merit)“ and “all applicable back pay with interest”, since they relate to the performance appraisals, are also outside the jurisdiction of the Board.
One of the other remedies requested is placement in a position at a higher classification than the grievor’s home position. Employer counsel submits that there is no jurisdiction to award a higher-rated position, as noted in Almeida and The Crown in Right of Ontario (Ministry of Municipal Affairs) PSGB #P/0016/90 (Willes). The grievor acknowledged that there was no authority to grant the higher classification and accordingly, it is not necessary to address that particular remedial request any further.
As to the grievor’s requests for costs, employer counsel referred to Carter and The Crown in Right of Ontario (Ministry of Correctional Services) PSGB #P/0014/92 (Descza), where the Board found that the facts alleged in a promotion case were not ones that would take it outside the range of cases normally considered by the Board where legal and out-of-pocket costs are not awarded. Nothing was presented on the argument of these motions that convinces me that this case is sufficiently different to depart from the Board’s usual approach as to costs.
Are the issues raised by the grievance moot?
Employer counsel argues that the issues are moot because the manager complained of left the area where the grievor’s home position is located in April 2003. As well, the grievor was not left in the situation of being managed by the person whom she alleged harassed her, as she was given a series of short-term assignments prior to August 2004. Since there is no reference in the document to any harassment by the new manager, or any particulars as to the condonation of the alleged harassment by the director, I am asked to dismiss on the basis that there is no longer a live issue between the parties.
The employer relied on the decision in, Jones and The Crown in Right of Ontario (Ministry of Correctional Services) PSGB #P/0009/92 (Willes), in which the Board dismissed a case as moot where a discipline letter had already been removed from the grievor’s file, and the grievance as to harassment by a manager who no longer was her superior was not filed in a timely way.
The grievor says that the matter is not moot because it ties into the continuing condonation of the harassment by Marnie Weber, the Director, and the grievor’s assertion that the same conditions are present in Toronto Region under the new manager as before. Any issues related to the reporting relationship between Ms. Medcof and the grievor would indeed appear to be moot, as the grievor was not in that reporting relationship when she was returned to her home position. As to current problems in the Toronto office, these are not part of the grievance before the Board, and therefore, there is nothing to evaluate in terms of mootness. There remains the allegation that the grievor was unable to return to her home position for health reasons, at a time when Ms. Medcof would no longer be managing her. Although there is not much detail in the grievance about this portion of the complaint, it does not appear to be moot.
In the result, the grievance is dismissed for the reasons stated above, with the exception of the portion of the grievance that alleges that the grievor should not have been returned to her home position in August 2004 for medical and health reasons, which I find to have been filed in a timely manner, to be within the jurisdiction of the Board, and to be still a live issue between the parties. The matter will be reconvened to deal with this issue on a date to be set by the Registrar.
Dated at Toronto this 8th day of November, 2005